DWI/DUIs are common occurrences and Virginia is tough on drugged and drunk drivers. When caught drunk driving, you’ll face severe penalties, including steep penalties, increased insurance costs, fines, and loss of driving privileges.
The most common method of evaluating whether a driver is intoxicated or not is through field sobriety tests (FSTs). Here, our Manassas DUI lawyers explain what these tests are for, how they are conducted, and if they are mandatory.
What are common field sobriety tests in Virginia?
Field sobriety tests are preliminary field tests conducted by an arresting officer during a DUI/DWI stop to determine whether the driver is intoxicated. The police claim they are objective, but our experience proves they are subjective and aren’t always administered properly.
Moreover, these tests don’t account for an underlying medical condition that might cause someone to present symptoms of intoxication. Some common examples are finger dexterity, counting, reciting the alphabet, and finger to nose to name a few.
There are many different types of field tests that a law enforcement officer might ask someone to do, but only three of these are standardized by the National Highway Traffic Safety Administration (NHTSA).
What are the Three Standardized Field Sobriety Tests in VA?
The three Standardized Field Sobriety Tests include:
- Horizontal gaze nystagmus test (eye test)
- Walk-and-turn test
- The one-leg stand test
The National Highway Traffic Safety Administration (“NHTSA”) developed these tests and provided guidance on how law enforcement should administer them. Virginia law enforcers must administer the test in accordance with the NHTSA manual for the tests to be considered “standardized”. This battery of tests is to be done in the correct order with prescribed NHTSA instructions.
Police officers will look for difficulty with balance, trouble counting, inability to follow instructions, and any indication that a person is exhibiting behavior consistent with drug or alcohol intoxication.
Horizontal Gaze Nystagmus (HGN) Test
This is a test where the officer requests the driver to follow a light, pen, or finger with their eyes. It tests involuntary eye jerking of the eye as they try to follow the object across a horizontal plane. Some clues the officer is looking for include:
- No smoothness in eye movement
- Sustained and distinct nystagmus at peak deviation for four seconds or more
- The onset of involuntary jerking of the eyes before hitting 45 degrees
Walk-and-Turn Test (W/T)
In this test, the driver should walk in a straight line for nine steps taken heel-to-toe. After the ninth step, the driver should turn as instructed and walk another nine steps (heel-to-toe) in the opposite direction. As they take each step, the driver should count the steps aloud.
During the test, the officer is looking for signs of impairment, including:
- Losing balance while listening to the officer
- Starting to walk before instructions
- Stopping while they walk
- Using their arms to stay balanced
- Taking the wrong number of steps
- Not able to adhere to the walking instructions
In this test, the driver must raise one leg six inches off the ground, the toe pointed and the arms at their sides. While in this position and without losing balance, they should count, “one, one thousand, two, one thousand, three, one thousand…” until the officer tells them to stop, which is approximately 30 seconds.
At this time, the police officer is observing the driver for clues of impairment. These clues include:
- Swaying; Balance during instructions
- Putting the foot down before the elapse of 30 seconds
- Using the arms for balance
Note: The One-Leg-Stand and Walk and Turn tests are designed to test a driver’s ability to focus on different things simultaneously, i.e., listening to instructions and physical actions. These are known as divided attention tests.
Frequently Asked Questions
Are Field Sobriety tests mandatory in Virginia?
Contrary to what Virginia drivers believe, FSTs aren’t mandatory. You can decline field sobriety tests without worrying that your refusal will be used against you in court or getting your license suspended.
Field tests are subjective, and many officers are undertrained to test properly or will vary away from the requirements of NHTSA. There are studies that indicate that the Standardized Field Sobriety Tests are scientific and reliable but those are not peer-reviewed studies and do not take into account the individual ability of a driver.
The preliminary breath test, the test that is conducted with a small hand-held device on the side of the road, is also not mandatory.
Whether you choose to take the tests or not, the officer is likely to arrest you and take you either to the station or the hospital for further testing. The less information or evidence of intoxication you provide to the officer, the more your attorney might be able to help you at court.
Are chemical tests mandatory?
Post arrest chemical tests, either on the EC/IR II at the station or a blood test at the hospital, are mandatory under the implied consent law. As a driver in Northern Virginia, you give voluntary consent to provide blood and breath samples for analysis. However, the Implied Consent Rule operates within the confines of the 3 Hour Rule.
According to the 3 Hour Rule, the Implied Consent Statute is triggered when a driver is arrested within 3 hours of driving or operating the vehicle. When the driver is eventually tested doesn’t matter if this condition is met. This rule is easily met in most Virginia DUI cases since drivers are arrested 20 minutes after a traffic stop.
Note: Refusing evidentiary testing could result in receiving a refusal charge in addition to a DUI charge.
Can health conditions affect field sobriety test results?
Yes. Health conditions can make a driver fail field sobriety tests by affecting concentration and balance. For instance, foot and leg problems, obesity, and inner ear conditions affect the results of one-leg stand tests.
The walk-and-turn test can be affected if the driver is elderly, has leg or back problems, or suffers an inner ear condition that affects your balance. The HGN test results can be affected if the driver has twitching in their eyes, different pupil sizes, and one eye performs better than the other.
Are field sobriety tests administered for drug related DUIs?
Yes. Law enforcement officers will administer field sobriety tests even when they don’t smell alcohol on the driver. FSTs weren’t created to determine if someone is on drugs, but since the officer doesn’t know why the driver’s behavior is off, they perform field sobriety tests anyway.
If the tests point to something being wrong, they’ll administer chemical tests to get conclusive results of drugged drivers.
How much weight do field sobriety tests have in court?
In DUI cases, field sobriety tests help the judge determine if the arresting officer had probable cause to arrest the suspect. When a certificate of analysis isn’t available, results from field sobriety tests become the main evidence and guide the ruling.
Should you get medical attention first before taking a field sobriety test?
Which comes first, a field sobriety test or medical attention is determined on a case-by-case basis. Police officers have little to no medical training, so they depend on common sense and general knowledge to determine when a suspect receives medical attention.
In some cases, the choice is obvious. If the suspect is injured in a serious car accident, the officer should first get the driver medical attention before administering a field sobriety test.
In other situations, the choice is not as clear. If a suspect was in a car accident and suffered a concussion, the police officer and the suspect may not know it. And in other situations, where the suspect may be heavily intoxicated and need medical attention, the officer may opt to administer field sobriety tests first as evidence of intoxication and then get them medical attention.
Generally, officers have a lot of leeway in determining which comes first.
Can I consult with an attorney prior to field sobriety tests?
Virginia law doesn’t give you the right to consult with an attorney before choosing whether or not to take the field sobriety tests. Luckily, these tests aren’t mandatory. Since field sobriety tests are intended to support a law enforcement officer’s decision to arrest you, don’t help them make a case against you.
Have you been charged with DUI in Virginia?
Not taking a field sobriety test can help you avoid self-incrimination, but it’s still a long road from being acquitted. You need experienced Virginia criminal defense lawyers from Naum Estevez to argue your best case for you. We understand the loopholes in field sobriety testing and have a record of successfully defending clients charged with drunk driving offenses.
Get in touch with us today for free non-obligatory consultation.