The Arrest- Field Sobriety Tests


After stopping your car, asking questions and watching your behavior, the cop will move on to field sobriety tests (FSTs).  Field Sobriety Test procedures are voluntary.  A little research on how these tests are administered will help you to understand what happened.  Typical FSTs include:

  • HGN Test– commonly called a horizontal gaze nystagmus test.  The purpose of the test is to determine if you have nystagmus- a certain jerkiness in your eyes when they track an object.  Of course, there is only one witness to how you do, and that is the cop who administers the test.  So expect that you will have “failed” the test.
  • VGN Test– same as the horizontal test except that the cop moves his finger in a vertical direction instead of horizontally.  Used to test for being under the influence of certain drugs and for extreme intoxication.
  • Leg lift
  • Walk and Turn
  • Nose touch
  • Rhomberg Balance Test
  • Hand Pat
  • Finger Dexterity
  • Alphabet (verbal)
  • Alphabet (written)
  • Counting backwards

You cannot be punished for refusing field sobriety test procedures.  You also have a right to refuse the PAS test (roadside breath test). However, chemical tests, which include a more sophisticated breath machine than the one a police officer will have in the squad car, occur later and are not voluntary. If you refuse to take a chemical test, your license will automatically be suspended. You do not have to submit to a field sobriety test if you don’t wish to. If you agree to submit to the test, the officer will evaluate how you performed. In most cases, you are better off refusing to take the field sobriety test as you may fail, even if you are innocent. FST’s are not, in and of themselves, proof that you were intoxicated. It is generally advised that people refuse to take the field sobriety tests, even if they are innocent, as they may fail and give law enforcement a reason to suspect that you were driving under the influence.

Before the officer can arrest you, he or she must have probable cause. “Probable cause” is a reasonable belief that you were driving while under the influence of alcohol and/or drugs. There is substantial case law on the issue of what constitutes probable cause. For example, simply swerving within your lane, negligently operating your vehicle, or driving slowly has been held not to constitute probable cause for an arrest for DUI.

Once the officer takes you into custody, they must read you your Miranda Rights. These rights include (1) the right to remain silent, (2) the admonition that anything you say can be held against you in a court of law, (3) the right to consult an attorney, and (4) the right to have an attorney appointed for you if you cannot afford one.