Field Sobriety Tests Used in Oregon DUI Cases

Field Sobriety Tests Used in Oregon DUI Cases 2017-07-23T17:21:16+00:00

Field Sobriety Tests in Oregon (also referred to as “sobriety tests,” “roadside tests,” or “drunk tests”) are often misunderstood due to myths, urban legends, and comedy routines. Many people think that field sobriety tests include saying the alphabet backwards, touching your fingers to your nose, or even juggling while singing (as in Steve Martin’s performance in The Man With Two Brains).

Field Sobriety Tests in Oregon DUI Arrests

Steve Martin doing Field Sobriety Tests in “The Man With Two Brains.”

The real Field Sobriety Tests used in Oregon are meant to sound simple and easy-enough for anyone to perform– so as to elicit cooperation and compliance from unsuspecting drivers– but the truth is that the tests are nearly impossible for an untrained performer to complete without error.

Oregon Field Sobriety Tests (FSTs)

Drivers stopped and investigated for Driving Under the Influence of Intoxicants (DUI) in Oregon are almost always asked to perform Field Sobriety Tests (typically abbreviated “FSTs”). The first three– the most common Field Sobriety Tests– are also often referred to as “Standardized Field Sobriety Tests (SFSTs)” or “Standard Field Sobriety Tests (SFSTs)”. The tests are referred to as “standardized” tests because they are intended to be administered the same way every time they are used, nationwide, based on studies from the National Highway Traffic Safety Administration (NHTSA).

Field Sobriety Tests are supposed to help law enforcement gauge whether or not a given driver may intoxicated and under the influence of alcohol or controlled substances. However, many law enforcement officers in Oregon do not know how to properly administer Field Sobriety Tests in a manner that is both fair to the test subject and scientifically valid. Most officers have gone through, at most, a few days of training and fancy themselves experts in human psychology and physiology.

Most law enforcement officers in Oregon begin field sobriety testing by asking drivers to “voluntarily” get out of their vehicles to “do a few tests.” The officer will often say, “I just want to make sure you’re okay to drive.” This statement will often seem to indicate to the driver that the officer wants to driver to do a few tests, but the driver will ultimately may be allowed to drive away. Most officers intentionally mislead drivers with this statement knowing full-well that they will be arresting the driver irrespective of how the driver does on the Field Sobriety Tests.

Officers, especially seasoned officers, are very well practiced in the art and science of deceit. Yes, you read that correctly: Officers are trained to lie and mislead suspects in order to obtain incriminating evidence. Make no mistake about it: drivers who are being investigated for DUI are “suspects” whether they know it or not. One of the most obvious tactics officers will use in investigating drivers for DUI is to ask them “How much have you had to drink?” This question, of course, assumes that the driver has had anything to drink at all. Officers will also attempt to ask “Is there any lawful reason you were speeding?” This is known as a compound question because in answering the question, the person responding is required to accept facts presented in the question (i.e. that the driver was actually speeding). A more subtle and dishonest technique that officers use to mislead drivers is with their body language and hurried speech.

The law in Oregon is clear: the performance of Field Sobriety Tests is akin to consenting to a search. Drivers have an absolute right to refuse Field Sobriety Tests. However, officers almost never tell drivers that they have this right. Instead, officers typically combine body language and smooth talking to attempt to provide further information with the officer can rely upon in making his/her arrest. Here’s how it is done: Most officers make their request of drivers for Field Sobriety Tests in an intentionally hurried fashion. Officers will also make the request while stepping to the side of the driver’s door with a hand or body motion to indicate that the driver needs to step from the vehicle. The fact of the matter is that the vast majority of drivers who are asked to perform Field Sobriety Tests report later that they had absolutely no idea that they had the right to refuse the tests.

So why would a driver want to refuse the tests? Because they are extremely difficult to do, and most officers are not interested in fully explaining each test to you in sufficient detail for you to understand what you are being asked to do. Would you be willing to take any other complicated physical balancing test in life with less than one minute instruction? Then why would you be willing to take a test that could result in your going to jail with less than one minute instruction?

Standardized Field Sobriety Tests in Oregon

The Standardized Field Sobriety Tests (SFSTs) consist of three tests:

  1. The Horizontal Gaze Nystagmus (HGN) test
  2. The Walk and Turn test (WAT)
  3. The One Leg Stand test (OLS)

These tests are also referred to as the “NHTSA SFSTs” because they have been standardized by the National Highway Traffic and Safety Administration (NHTSA).

Horizontal Gaze Nystagmus Test in Oregon

The first test often given is the Horizontal Gaze Nystagmus test (HGN). The Horizontal Gaze Nystagmus test measures the involuntary horizontal (i.e. side-to-side) jerking or bouncing of the eyes which increases with intoxication by alcohol. Most officers use a pen or small flashlight (i.e. a stimulus) and ask you to watch the stimulus as they move it back and forth across a horizontal plane.

The standardized clues for the Horizontal Gaze Nystagmus test are:

  • A lack of smooth pursuit (i.e. that you are unable to keep your eyes smoothly on the stimulus)
  • A distinct and sustained nystagmus at maximum deviation (i.e. that your eyes bounce when looking far off to the corner)
  • An onset of nystagmus prior to 45-degrees (i.e. that your eyes bounce about half-way from looking straight ahead to looking far off the corner)

The Horizontal Gaze Nystagmus test actually has the ability to be a decent indicator of alcohol consumption, but it is arguably one of the most difficult tests for and officer to administer correctly, and it’s often hyper-sensitive (i.e. results in false positives). The test subject can’t be swaying and there must not be any distractions (i.e. patrol lights or traffic) behind the officer and in front of the test subject. The officer must also keep a steady pace with the stimulus and have a sharp attention for what to look for. Even if the officer administers the test perfectly, there can be false positives because a test subject (e.g. a driver) can have clues of the Horizontal Gaze Nystagmus test at a blood-alcohol level as low as .02.

Walk and Turn Test in Oregon

The second test often given is the Walk and Turn test (WAT). This test is nearly impossible to do correctly unless you are in reasonably good physical condition and have been given proper instruction. Many of the scores or clues the officer can assign to you on the “Walk and Turn” test are subjective and, even worse, most officers will not tell you specifically what they will count against you as a clue. The test generally requires you to walk nine steps down a real or imaginary line, complete a turn, and take nine steps back. You are supposed to count out loud all the way. However, nearly any variance from the specific performance of the “Walk and Turn” test is considered a failure. People with balance problems, or any injuries to their back, legs or feet have no hope passing this test. Even people in top physical condition can fail if they are not explicitly told what the officer will be looking for.

The standardized clues for the Walk and Turn test are:

  • Falling or stepping out of the instructional stance
  • Starting the test too soon
  • Stopping while walking
  • Missing heel to toe by more than a half-inch
  • Stepping off the real or imaginary line
  • Raising either arm more than six inches from your body for balance
  • Improper turn
  • Taking the wrong number of steps

One Leg Stand Test in Oregon

The third test often given is the One Leg Stand test (OLS). This test is pretty simple in principal, but when was the last time you balanced on one foot non-stop for 30 seconds before going for a drive in your car? The “One Legged Stand” test is pretty easy to understand, but can still be very difficult to do. Similar to the “Walk and Turn” test, many people with balance problems, or any injuries to their back, legs or feet have no hope passing the “One Legged Stand” test.

The standardized clues for the One Leg Stand test are:

  • Putting your foot down before the 30 seconds are up
  • Raising either arm greater than six inches from your body for balance
  • Swaying
  • Hopping

The above-described three tests are considered the battery of Standardized Field Sobriety Tests (SFSTs). There are other “non-standardized” tests that can be given, as well as a Drug Recognition Evaluation by a Drug Recognition Evaluator (DRE).

Non-Standardized Field Sobriety Tests in Oregon

Non-Standardized Field Sobriety Tests are tests that are approved for testing, but that haven’t been standardized or validated by NHTSA. The Oregon Administrative Rules have codified non-standardized field sobriety tests under OAR 257-025-0000 through 257-025-0025. In addition to detailing the Standardized Field Sobriety Tests (SFSTs), there are six additional Non-Standardized Field Sobriety Tests (FSTs) which can be administered by law enforcement officers in Oregon.

The Non-Standardized Field Sobriety Tests are:

  • Romberg Balance Test
  • Modified Finger to Nose Test
  • Finger Count
  • Alphabet
  • Counting
  • Internal Clock

The phrase “non-standardized” means that there has been no standardized methodology for administration or scoring of the tests. In addition, the tests have not been validated by any scientific studies.

There are a few important things to remember about these non-standardized tests. First, they are rarely offered. Police officers typically don’t offer to administer the tests either because the officers are not properly trained, they are lazy, or they might be concerned that the driver may score well on the tests (and that might diminish the officer’s probable cause for a DUI arrest). A test never given is not an effective test for anything. Second, the tests are subject to wide variations in administration which make analyzing them for actual evidence of impairment impossible. For example, what if one officer decides to have all drivers he tests count backwards from 99 to 55 and then back to 99, while another officer decides to have all drivers he tests count forwards from 55 to 77. Are those the same test, or not? The third consideration when looking at these tests is to recognize they’ve never been validated. In fact, far from being validated, these tests are the rejects from the tests that made it into the group of three Standardized Field Sobriety Tests (SFSTs). There is no peer-reviewed literature supporting use of these non-standardized tests to determine actual BACs (blood-alcohol concentrations) or impairment.

If you have been asked to perform any of the tests described above, or if you want more information about how the tests might affect your case, please contact our office. Oregon DUI attorney/lawyer Michael G. Romano has completed a Standardized Field Sobriety Test administrator’s course as well as an Standardized Field Sobriety Test instructor’s course (meaning he can teach others how to administer and score Standardized Field Sobriety Tests), and if there were any errors in the administration or scoring of the tests, it may undermine the State’s case against you.

Oregon Laws on Field Sobriety Tests

Oregon Field Sobriety Tests are authorized by Oregon Revised Statutes and Oregon Administrative Rules below.

ORS 801.272: Field Sobriety Test

Field sobriety test means a physical or mental test, approved by the Department of State Police by rule after consultation with the Department of Public Safety Standards and Training, that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance, an inhalant or any combination of intoxicating liquor, an inhalant and a controlled substance.

ORS 813.135: Implied Consent to Field Sobriety Tests

Any person who operates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon the request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the police officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.

OAR 257-025-0012: Approved Field Sobriety Tests

(1) The following “field sobriety tests”, as that phrase is defined by ORS. 801.272, are approved by the Department of State Police, after consultation with the Board on Public Safety Standards and Training (BPSST), for use by sworn police officers:

(a) Horizontal Gaze Nystagmus (HGN);

(b) Walk and turn test;

(c) One Leg Stand;

(d) Modified Finger to Nose Test;

(e) Finger Count;

(f) Alphabet;

(g) Counting;

(h) Internal Clock;

(i) Romberg Balance Test.

(2) The following additional approved tests may be performed by police officers who have completed the 8-hour “Drugs That Impair Driving” curriculum:

(a) Lack of Convergence Test;

(b) Pupil Size Estimation;

(c) Pulse Rate Examination.

(3) Officers trained and approved by the Oregon State Police as a Drug Recognition Expert (DRE) may utilize any of the above listed tests plus the following approved tests which are only included in the DRE training. Tests which may be utilized upon successful completion of the 72-hours of DRE training include:

(a) Physical examination tests including the following: the person’s vital signs (pulse, temperature and blood pressure); the person’s psychophysical responses (coordination of mind and body); signs of administration of drugs (injection sites, etc.); eye responses (horizontal/vertical gaze nystagmus, eye convergence, pupil size under varying light intensities); and physical and behavioral characteristics (muscle rigidity or flaccidity, hyperactivity, etc.).

(4) These rules are necessary for the implementation of ORS 801.272. No stop, arrest, civil or criminal proceeding commenced prior to the effective date of these rules is affected by the requirements of these rules.

OAR 257-025-0020: Conducting Approved Field Sobriety Tests

(1) Nothing in this rule prohibits the police officer from providing additional information to the person asked or requested to take the field sobriety tests that the officer considers convenient or appropriate. By way of example, but not limitation, the officer may orally describe some or all of the tests intended to be administered. Prior to the administration of each field sobriety test, the officer shall generally explain the field sobriety test to the person requested to take the test. The field sobriety tests shall be administered substantially as described below. Each field sobriety test, as described below, is specifically found to meet the requirements of ORS 801.272:

(a) Horizontal Gaze Nystagmus: The police officer must have received training in the administration of the Horizontal Gaze Nystagmus (HGN) test by the Oregon State Police, BPSST, or other governmental entity prior to its administration under this rule. The officer shall use a stimulus (such as a finger, pencil or penlight) held vertically in front of the person’s face approximately 12 to 15 inches away from the person’s face. The person tested must hold their head still. The officer, during the administration of the testing procedures, should conduct the testing procedures in the order listed unless circumstances or conditions dictate otherwise:

(A) The officer shall move the stimulus from the center of the face to the side, checking for the lack of smooth pursuit of the eyes as they track the stimulus;

(B) The officer shall check for distinct nystagmus at the maximum deviation of each eye;

(C) The officer shall check for the onset of nystagmus prior to 45 degrees in each eye.

(b) Walk and Turn Test: The officer will instruct the person, while standing, to place the person’s left foot on a line (if no line is available, use a general direction for the person to walk an imaginary line) then place the right foot on the line with the heel of that foot ahead of the toes of the left foot. Instruct the person to take nine steps down the line, keeping arms at sides, looking at feet, and counting each step while walking heel-to-toe. Instruct the person how to turn (at the discretion of the officer) and to walk back in the same manner previously described. Generally demonstrate the test.

(c) One Leg Stand: Instruct the person to stand straight with the person’s feet together and arms at the sides. Instruct the person to raise one foot approximately six inches off the ground while looking at the foot, and to count “1001, 1002, 1003,” etc., until told to stop by the officer. The officer will then time the person for thirty seconds. The person will count 1001, 1002, 1003, etc., until told to stop by the officer. The officer may conduct the same test with the other foot. Generally demonstrate the test.

(d) Romberg Balance Test:

(A) Instruct the person to stand straight with feet together with arms at the person’s sides.

(B) While standing as described above, instruct the person to tilt their head backward, close their eyes and estimate the passage of thirty seconds before opening their eyes again. Generally demonstrate the test.

(e) Modified Finger to Nose Test: Instruct the person to stand straight with heels together, eyes closed, arms at sides, and head tilted back. Instruct the person to touch the end of the person’s nose with end of the index finger by bringing the person’s arm and hand from the person’s side directly to the end of the nose. Have the person repeat for the other index finger and repeat the test in the same manner, if deemed appropriate. Generally demonstrate the test.

(f) Finger count: Have the person hold a hand out and touch each of the four fingers with the thumb of that hand and count 1-2-3-4, 4-3-2-1,or any other order deemed appropriate by the officer. Generally demonstrate the test.

(g) Alphabet: Have the person say the alphabet or any portion of the alphabet the officer may choose. This test may be used as part of the Romberg test.

(h) Counting: Have the person count any length of numbers, forward or backward, as the officer may require. This test may be used as part of the Romberg test.

(i) Internal Clock: Ask the person to tell you when 30 seconds has elapsed. Time the person’s estimation.

(2) Pursuant to OAR 257-025-0012 a police officer may administer any, all, or none of the field sobriety tests described in this rule as deemed appropriate in the sole discretion of the police officer.

Oregon DUI Attorney and Field Sobriety Expert

If you’ve been arrested or cited for DUI in Oregon, contact our office. Oregon DUI Attorney Michael Romano is not only an experienced and knowledgeable DUI lawyer, but he’s been trained in both the administration and instruction of Field Sobriety Tests (FSTs).