Before making an arrest for operating while intoxicated (OWI) Wisconsin law enforcement agents must have enough evidence to establish that a crime was committed. To do so, they may administer a series of field sobriety tests that are used to gauge your level of intoxication.
What exactly does that mean and what do you need to know?
If law enforcement has a “reasonable suspicion” that you are driving while intoxicated, then they can pull you over. Examples of incidents that could lead to reasonable suspicion of intoxication include drifting over the center line, excessive speeding, or swerving.
However, law enforcement cannot arrest you without “probable cause” that you are intoxicated while driving. There are a few methods used to establish probable cause. One of those methods is the administration of field sobriety tests (FST). Although a FST is always voluntary, your refusal to participate could lead to an officer establishing probable cause for an arrest. That is, they assume that if you aren’t willing to undergo the test, you have something to hide. However, you should know that participating in field sobriety testing allows police to gather more “clues of impairment” that are used in a court of law.
While there are a number of tests that could be used, only three are approved by the National Highway Traffic Safety Administration (NHSTA):
1. horizontal gaze nystagmus
2. walk and turn
3. and one-leg stand.
Horizontal Gaze Nystagmus
The HGN test looks for involuntary jerking in the eyes. The theory of the test is that an intoxicated person’s eyes will display more pronounced involuntary jerking when trying to look at an object from the corner of the eye. During the test, the officer will hold an object 12 to 15 inches away from the suspect’s nose and move it from side to side, while the person keeps a still head. The person is not to move their head, but track the object (usually a finger or pencil) with their eyes. The officer looks for exaggerated jerking of the eyes, and jerking at the eyes at a smaller angle (usually less than 45 degrees).
Walk-and-Turn Test
As one of the divided attention tests (the other is the one-leg stand), the walk-and-turn test measures your ability to follow directions and perform a “simple” physical task. During this test, you will be instructed to take nine heel-to-toe steps on a real or imaginary line, pivot in a specific manner, and take nine more steps back. Using your arms to balance, pivoting incorrectly, or missing a step could be used as signs of intoxication.
One-Leg Stand Test
As the name implies, this test measures your ability to stand on only one leg for 30 seconds. During this test, the officer will watch for certain “clues,” which include hopping, using your arms to balance, or putting your foot down before the test is over.
Do I Have to Preform Field Sobriety Tests?
While you are required by law to take the breathalyzer test after you are arrested as a condition of implied consent in Wisconsin, you are not required by law to submit to this breath test or sobriety tests in the field, unless you are a commercial driver.
One of the most successful strategies the police use in gaining information to serve as evidence of a driver's intoxication relies on the cooperation of the suspected offender to aid in its creation.
Yet, most people don't realize they have the legal right to refuse field sobriety tests.
Because the results of field sobriety tests are notorious for being both subjective and inaccurate, you risk making your legal case worse by participating in these tests.
Can You Fail Sobriety Tests While Sober?
Yes- you can fail these tests while sober. Some of the reasons you could fail the test include:
· Wearing contact lenses
· Medical conditions Anxiety or fatigue
· Balance issues
· Disability
· Past injuries
· Being overweight
Problems With Field Sobriety Tests
There are many problems with field sobriety tests. The science behind them is flawed, and they are designed to be very difficult — even for someone who is sober. Unlike a breath or blood test, which are more scientific in nature, field sobriety tests are largely subjective.
In fact, police are specifically taught that even sober people may have difficulty with these tests.
The majority of police officers will not give you proper instructions before either test. And most officers who try to demonstrate a test to you will actually show “clues” of intoxication themselves. However, officers are also taught “cheats” that allow them to pass the tests more easily if they are asked to demonstrate in court. They don’t afford that luxury to anyone accused of DUI.
Only an experienced attorney who knows the small complexities of these tests, the scientific studies behind them, and how the officers are trained can actually use them to your advantage if you are accused.
If you were arrested after failing any of the tests listed above, the attorneys at Jones Law Firm can help. Contact us today to set up a free consultation. Please contact us by text or phone at (414) 775-7445 or email at laura@jlfwisconsin.com anytime.
*Any articles in the Libra or posted by Jones Law Firm LLC are not legal advice for a particular client or situation. Further no attorney-client relationship is intended or created with this post.*
