After being pulled over by a a State Trooper in Denver, Colorado Springs or Aurora you might be asked to perform some basic tasks so that the law enforcement official can gauge your ability to operate your vehicle safely. The same tests could also be given by a County Sheriff’s Deputy in Lakewood, Fort Collins or Arvada. Maybe it was a local Police Officer in Pueblo, Westminster or Boulder? If you have been questioned for suspicion of drunk driving, then hopefully you are beginning to understand that Driving Under the Influence, or DUI, (commonly called DWI, or Driving While Intoxicated, in other states) is a serious offense in Colorado.
Once you begin the Field Sobriety Test, so-named because it is done “in the field”—wherever the Officer pulls you over, the results often determine whether you continue toward your destination or whether you are detained and arrested for DUI. In court, the District Attorney will ask the arresting Officer to recount every detail of your Field Sobriety Test. It may even be recorded by a dashboard camera and played back in court. Throughout Colorado, law enforcement Officers depend on the Field Sobriety Test to measure a driver’s sobriety or lack thereof.
But wait, why did the Officer stop me in the first place?
The Colorado State Trooper, local Police Officer, or County Sheriff who pulled you over probably observed you driving erratically. Were you:
- Weaving between lanes?
- Operating your vehicle’s safety features incorrectly? (i.e. driving without your headlights at night or without your windshield wipers during a rainstorm)
- Driving above or below the posted speed limit? or
- Stopping your vehicle without proper cause or in an illegal place?
Perhaps the Officer observed nothing improper about your driving but, instead, stopped you as part of a traffic checkpoint.
After reviewing your driver’s license and vehicle registration, if the Officer suspected your ability to drive was impaired by alcohol or drugs, more than likely he directed you to exit your vehicle and take a Field Sobriety Test. This psychophysical test measures impairment by alcohol or other substances of your basic motor and cognitive skills.
Most Coloradoans have seen Field Sobriety Tests depicted in television shows or movies. Or perhaps they have experienced one first-hand. Even though most people know generally what happens in them, many states lack written instructions dictating that each Field Sobriety Test be administered in exactly the same fashion under controlled conditions.
The United States National Highway Traffic Safety Administration (NHTSA) created its own standards for Field Sobriety Tests, which many Officers nationwide use as a general guideline. A Field Sobriety Text administered by a Police Officer in Denver, however, can vary greatly from one administered by a County Sheriff in Fort Collins or from one administered by State Trooper in Aurora.
The Officer may administer any or all of these three tests:
- Horizontal Gaze Nystagmus (HGN): HGN refers to the normal, uncontrollable twitching or jerking of the eyes while looking sharply to the left or right. Everyone experiences a slight degree of HGN under normal circumstances. Under the influence of alcohol or any drug (over-the-counter, prescription or illegal), this twitching or jerking can occur even when the suspect is focused straight ahead or just slightly to one side. During the HGN test, the suspect focuses on a slow moving object (such as the Officer’s pen or finger) while the Officer watches carefully for any jerking or twitching of the eyeballs. Concerns about accuracy of the HGN test include:
- Many law enforcement vehicles have dashboard video cameras, allowing for constant videotaping of the Officer’s interactions with the suspect. Even the best dashboard video equipment, though, cannot record the suspect’s eye movements. Therefore the Officer can only relate the results of the HGN test verbally in court.
- Suspects must take this test in a variety of climate conditions, ranging from rain, dense fog, snow or high winds. It seems highly unlikely that the varied climate conditions would have no impact on the Officer’s ability to observe slight eye movements. And since this test is frequently administered at night, lack of good lighting presents further obstacles to a thorough, accurate assessment.
- One-Leg Stand (OLS). During the OLS the suspect stands on one leg with the other raised six inches off the ground. While maintaining this position, the suspect counts aloud, starting at one thousand, and continue counting until told to stop (usually for thirty seconds). The Officer watches for these possible indicators of the suspect’s impairment during the OLS:
- Lowering the foot before the test ends;
- Counting out of sequence;
- Waving the arms for balance;
- Hopping to maintain balance; and
- Falling over during the test.
Like the Horizontal Gaze Nystagmus test, the One Leg Stand has multiple factors that can interfere with an accurate assessment of sobriety
- What if English is not the suspect’s native language? Counting in the thousands could be impossible even when not impaired.
- What if the suspect is nervous around Law Enforcement Officers, for reasons not related to sobriety? This could negatively impact his ability to perform well on any such test.
- Walk-and-Turn (WAT): During the WAT, the suspect takes nine steps, heel-to-toe, along an imaginary straight line. Then the suspect pivots 180 degrees on the ball of one foot and takes another nine steps, still heel-to-toe, in the opposite direction. During the WAT, the Officer watches for many indicators of potential alcohol and/or drug impairment, including:
- Excessive use of the arms for balance,
- Stopping before the WAT is complete,
- Taking more or less than nine steps,
- Failure to stand still and straight while as the Officer explains the WAT,
- Weaving instead of walking in a straight line,
- Walking with the feet side-by-side instead of walking heel-to-toe,
- Failure to pivot turn on the ball of the foot, and
- Starting the test before the Officer completes the instructions.
Many legitimate issues could interfere with the WAT test results, including:
- Shoe soles Something as simple as the suspect’s shoes can significantly impact the WAT test. For instance, leather soles can be slippery and result in turning too quickly, causing a loss of balance. Conversely, rubber soles can “grip” the roadside, also causing a loss of balance. And high heels, whether on a woman’s shoe or a man’s boot, can make heel-to-toe walking difficult.
- Medical conditions Inner ear problems or chronic leg or back pain can cause a loss of balance. Obesity can also adversely impact balance.
- Roadside Surface Condition Ice, rain, snow or even spilled motor oil can make the roadside surface slippery, causing challenges.
Here are some additional factors to consider about Field Sobriety Tests:
- An Officer forms an opinion about a driver’s sobriety (or lack thereof) from the moment he first observes the driver’s vehicle, before the Officer ever decides to pull him over. While unsafe driving has no excuse, it is not always caused by alcohol and/or drug impairment. For example:
- Focusing on a conversation, either with passengers or via a cell phone, instead of on the posted speed limits can cause a driver to speed.
- Changing a compact disc, reading a map or engaging with children in the backseat can cause a driver to weave between lanes.
In both of these examples, the Officer may assume a driver is under the influence, even though the suspect is really guilty of driving distractedly.
- Anything an Officer observes about a driver, while speaking with him or during the Field Sobriety Test, can be admitted in court, even though the Officer has not yet read the suspect his Miranda rights.
- Hearing and following an Officer’s verbal instructions on the side of a noisy roadway can be difficult for Coloradoans with hearing deficits, whether due to advanced age or medical conditions.
- Even something as simple as the driver leaning on or pulling against his car door while exiting could be construed by an Officer as evidence of impairment. But such actions could be simply the result of chronic back pain or sore muscles from a challenging workout the day before, not impairment by alcohol and/or drugs.
Although Law Enforcement Officers and District Attorneys rely heavily on Field Sobriety Tests for assessment of impairment, they are not always the most accurate measure of a driver’s sobriety. In court, though, it will be your testimony versus the arresting Officer’s. Make a smart decision today, and contact a Colorado DUI/DWAI lawyer. Your future is at risk if you have been arrested for DUI. Make sure you have a Colorado DUI lawyer on your side as a trusted guide and advisor.