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About Field Sobriety and Breathalyzer Tests

In this interview transcript excerpt, Shawn Sukumar addresses field sobriety and breathalyzer tests in the District of Columbia.

What are some of the common field sobriety tests a driver in DC might be asked to perform?

There are three commonly used field sobriety tests. There are many more that the police can do, but there are three that are commonly accepted by the people who designed these tests. The three that are accepted are the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test.

Horizontal Gaze Nystagmus Test

The horizontal gaze nystagmus test is an eye test, when a police officer holds a pen in front of your eyes and then moves it back and forth. A lot of people think that they’re testing whether or not you can follow the pen. What the police are actually looking for is what’s called horizontal gaze nystagmus. That’s involuntary vibration in your eye, and a person doesn’t know when they do it, but if you’re intoxicated by alcohol or certain kinds of drugs, then when your eye tracks out to the side and back and forth, it vibrates instead of tracking smoothly, kind of like a windshield wiper on a dry windshield. The police argue that it’s an indicator of impairment by alcohol.

Walk-and-Turn Test

The second test is called a walk-and-turn test, where you have to take nine steps heel-to-toe, make a pivot turn, and take nine steps back. It’s a test with a lot of instructions, and it’s a very complicated test that a lot of people actually end up doing wrong anyway.

One-Leg Stand Test

The third test is called a one-leg stand test, where you have to stand on one leg for a period of about 30 seconds. You can’t put your foot down and you can’t raise your arms. You can’t hop on one foot, and you can’t fall down or do anything that would be an indicator that you’re impaired. Those are the three accepted field sobriety tests.

Can a person refuse to participate in the field sobriety tests?

You can always refuse field sobriety tests, and there are no legal penalties for doing that. There is no additional penalty for refusing a field sobriety test, compared with the DMV penalty for refusing a breath test. If you refuse a breath or any chemical test, then your mandatory license revocation period goes from six months to one year.

There’s no legal penalty for refusing a field sobriety test except for the fact that if your case goes to trial, the prosecutor is going to argue that the reason why you refused to do this test is because you knew that you were intoxicated and you didn’t want to provide the evidence of it. That’s called consciousness of guilt; you were aware that you were intoxicated and you didn’t want to further incriminate yourself. It’s not the strongest argument in the world, and for people who have balance problems, inner ear problems, weight problems, or physical injuries, sometimes in those cases it’s a good idea to tell the officer. It’s important to tell the police officers that you have an injury and there is no way that you could do the tests. If you say you’d rather not do them, there’s nothing they can do. You may end up getting arrested anyway if you smell like alcohol, but if you know you would fail for some other reason, for example if you had a stroke recently or you had surgery recently, then it’s important to inform the officers of that so that you can maintain that defense later. If the case were ever to go to trial, you can maintain the argument that not only did you have an issue, but you told the officer on scene that you had an issue.

Can you refuse a breathalyzer test?

You can refuse a breathalyzer test, but the difference between refusing that and refusing field sobriety tests is that there are legal penalties for refusing the breathalyzer. One problem with refusing a breath test is that, just like refusing field sobriety tests, the prosecutors can argue that the reason why you refused is because you were aware that you were intoxicated and you were conscious of your guilt.

The other main issue with refusing the test is that the DMV will revoke your driver’s license for one full year, instead of the mandatory six months for a standard first offense if you had done the breath test. For that one year license revocation, it doesn’t matter whether or not you’re found guilty at trial. It doesn’t matter if you were acquitted. If you refused, then it’s going to be a mandatory one year revocation, regardless of what actually happens in your case. One other problem with refusing the breath test is that the prosecutors won’t give you a favorable plea deal or a deferred sentencing agreement. They won’t give you anything if you refuse the breath test. That’s not universally true, but that’s their policy. It creates a higher hurdle for us to be able to negotiate a more favorable resolution without going to trial.

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