Attacking Field Sobriety Exercises (FSEs) or "Roadside Tests

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Standardized Field Sobriety Exercises (FSEs) are a crucial tool used by law enforcement officers during traffic stops to assess whether an individual is under the influence of alcohol or drugs. In Florida, where we adhere to guidelines set by the National Highway Traffic Safety Administration (NHTSA), three main Standardized Field Sobriety Exercises are employed:

• Horizontal Gaze Nystagmus (HGN): During this exercise, the officer moves an object (such as a pen or stylus) in front of your eyes. They observe for any involuntary jerking of your eyes, known as nystagmus, which can occur regardless of impairment.
• Walk-and-Turn: In this test, you are instructed to take nine heel-to-toe steps along a straight line, turn, and return the same way. The officer assesses your ability to maintain balance, start and stop correctly, and execute actions like touching heel-to-toe while staying on the line.
• One-Leg Stand: For this exercise, you stand on one foot approximately six inches above the ground and count aloud until instructed to stop. The officer observes whether you sway, use your arms for balance, hop, or put your foot down prematurely.

Florida officers receive specialized training to administer these exercises accurately. They provide clear instructions and demonstrate the procedures before you attempt them. Their observations during these assessments play a crucial role in determining whether an arrest for DUI is warranted.

The strength of the FSEs is that they are standardized and have been tested by NHTSA, giving them some arguable weight. However, occasionally we see officers in a DUI, and especially in BUIs where space for FSEs rarely exists, ask someone to do alternate exercises. For example, you may have seen someone in an arrest video do a Finger-to-Nose exercise, seated tests where they could not stand, or perhaps they have been asked to recite the alphabet. These exercises are not standardized and, as such, are subject to collateral attack regarding admissibility. 

At The Law Office of Sean Clayton, PA, our dedicated team of attorneys specializes in providing vigorous defense for DUI cases in Fort Lauderdale, Miami, and West Palm Beach. Our primary objective is to achieve the best possible outcomes for our clients, often resulting in complete dismissal of charges or reduction to the lesser offense of reckless driving.

Additionally, we offer invaluable guidance to our clients throughout the administrative proceedings with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). Our advice includes strategic approaches that may enhance their chances of a favorable resolution. Ultimately, our goal is to assist clients in minimizing the long-term consequences associated with a DUI charge.

Following a DUI with property damage arrest in Fort Lauderdale or anywhere in South Florida, you will encounter two distinct cases. First, there is the administrative case with the DHSMV, which focuses on the suspension of your driver’s license. The second is the criminal case which unfolds in the courts. Our experienced DUI lawyers handle both types of cases across South Florida and can provide expert guidance on the best course of action for your situation.

We strongly encourage anyone accused of DUI with property damage to consult with an attorney early in the process. For assistance in selecting the right attorney, consider reviewing our  Tips for Selecting a DUI Attorney. 

The courts have made clear that the officer must have a "reasonable suspicion" that a driver is impaired to justify asking them to do the FSEs. This means that the observations must have enough significance and relation to impairment to justify the investigation.  For example, a speeding car in a group of speeding cars that crosses the lane line may get pulled over for weaving. But, those observations alone are not enough. Sober drivers are known to occasionally leave their lane and speeding is a common behavior. However, if that weaving happens a few times over a quarter mile, the court may see it differently. Cases turn on very minute facts. If the officer cannot articulate a good enough reason for the request, then the observations made during the FSEs may be subject to suppression. This is why it is important to find the best DUI lawyer for your case to review the evidence.

Absolutely! It is not required and there is no implied consent law for FSEs like there is for the breath, urine, or blood tests. In fact, if you are determined not to give a breath, urine, or blood sample, I would encourage you do not do the FSEs either, politely declining. This kind of case is often referred to as a "double refusal." While it may close the door to diversion to refuse, it also may significantly limit the evidence the prosecutor has to use against you. 

You refusal may be admissible against you as "consciousness of guilt" evidence, just as a refusal to submit to chemical testing. But, just like a chemical test refusal, an officer must appropriately warn you of his intent to hold that against you before it can be used as "consciousness of guilt" evidence in court.

If you did refuse to perform FSEs, make sure to tell your DUI lawyer. They should be able to review the video evidence and determine if there's an impropriety which may exclude the refusal from being used in evidence against you. 

In Florida, HGN (Horizontal Gaze Nystagmus) test results are not categorically inadmissible in DUI cases. However, their admissibility depends on several factors and those make them very difficult to get in. Amongst those factors are:

• Legal Context: HGN test results can be admitted as evidence of impairment, but they are not a direct measure of blood alcohol level. The legislature has not approved HGN as a method for establishing blood alcohol content.
• Proper Foundation: To be admissible, the HGN test must be introduced with the proper foundation. This means that its administration and interpretation must meet established standards for reliability and accuracy.
• Testimony Limitations: Prosecutors are generally not allowed to elicit testimony about a subject’s performance on the HGN test. This limitation ensures that the HGN test is not misused or overemphasized in DUI cases.

As stated above, HGN may be admitted to show impairment, but not BAC. This has to do with a little know tool used by Drug Recognition Experts (DREs), a specially trained officer, called Tharp's Equation. Tharp’s equation estimates blood alcohol concentration (BAC) based on the angle of onset of Horizontal Gaze Nystagmus (HGN) during DUI testing. Here are the key points:

• Purpose of SFSTs: Standardized Field Sobriety Tests (SFSTs) allow officers to assess probable cause for arresting potentially impaired drivers. SFSTs do not directly correlate with driving impairment but evaluate physical and mental skills relevant to safe vehicle operation.
• Intoxication Effects: Intoxication affects the Central Nervous System (CNS), including eye movements, speech, and motor skills. HGN is one such test used to detect impairment.

HGN Test Details:

• Officers observe involuntary eye jerking (nystagmus) as the suspect follows a stimulus (usually a pen or finger) horizontally.
• The angle of onset of nystagmus (AON) estimates BAC using Tharp’s equation: BAC ≈ (50 – AON) / 100.
• This formula is most accurate for BACs between 0.10 and 0.20.
• An AON of 45 degrees correlates with a BAC of 0.08.
• BAC > 0.20 may show immediate AON and other signs of intoxication.

This tool, though, fails to meet the scientific standards for admissibility.  As such, HGN testimony is limited to the AON prior to 45 degrees, indicated possible impairment.

The second issue is proper foundation. This is where most attacks on HGN find success. Florida courts have long recognized that few, if any, law enforcement officers have sufficient training or experience, let alone medical expertise, to accurately speak to the cause of nystagmus. As such, with the exception of testimony from some DREs, who are still subject to attack, the courts routinely exclude HGN results from testimony.

Finally, for the first and second reasons above, even when HGN is admitted, the testimony is severely restricted to physical observations, not interpretations. At least, a qualified DUI lawyer should make sure to limit it as such through a Motion in Limine and object should a prosecutor attempt to enter such testimony.

In summary, while HGN test observations can be used as evidence, their admissibility hinges on adherence to legal guidelines and scientific standards. Always consult with a DUI lawyer for specific advice related to your case. The DUI lawyers at The Law Office of Sean Clayton, P.A. in Fort Lauderdale are waiting to assist you.

FSEs are standardized. This means that in order to be conducted properly, officers must strictly adhere to how they give the instructions, demonstrate the exercise, and answer questions. Their interpretation are only valid if the exercises are administered just as they were in the original NHTSA scientific studies which determined these exercises to be valid indicators of impairment. 

In the case of the Walk-and-Turn, DUI lawyers turn to the NHTSA standards and the instruction manuals to validate the methods used in each case. Defense experts may be employed to challenge the officer's administration of the test and interpretation when they fail to comply with NHTSA standards.

Also, there are many other factors which, if not properly accounted for by law enforcement, may skew test interpretation. For example, this test may be less reliable where it is administered in a poorly lit area. where the surface is uneven, soft, wet or littered with debris.  People of advanced years, with certain medical conditions, or disabilities may not perform in a standard manner. Or, maybe you're just tired.  Officers usually ask if the participant has any medical conditions which may affect their performance, but people frequently fail to recognize the broad scope of conditions which may impede them and which give the officer a false perception that you are intoxicated. In fact, how can they be expected to answer correctly when they do not yet know what they are being asked to perform?

In summary, while Walk-and-Turn test observations can be used as evidence, their admissibility hinges on adherence to NHTSA standards. Officers can easily misinterpret what they observe and a good DUI lawyer can help to adapt their failures to benefit your case.

As we've said, FSEs are standardized. They are only valid if the exercises are administered just as they were in the original NHTSA scientific studies which determined these exercises to be valid indicators of impairment. 

As with the Walk-and-Turn, DUI lawyers turn to the NHTSA standards and the instruction manuals to validate the methods used when the officer conducts the One-Leg Stand. Defense experts can challenge the officer's administration of the test and interpretation of the results when they fail to comply with NHTSA standards.

The same factors which can skew interpretation of the Walk-and-Turn can cause misinterpretation of the On-Leg Stand. Factors like weight, age, disability, medical condition, and fatigue all may play a role in diminishing performance. Where the subjective interpretation of law enforcement is the only thing standing between arrest and freedom, conviction and acquittal, attacking their interpretation is critical to a valid DUI defense strategy where FSEs are involved.

The beauty of these tests is that they are not standardized. there is no standard for performance from which an interpretation can be drawn. When this is the basis for an officer's arrest, one can call into question the very use of their observations in their probable cause determination. 

The Finger-to-Nose exercise is very problematic. NHTSA specifically rejected its use, yet officers are still performing it, particularly the seated form in BUIs, for some inexplicable reason.