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What is a field sobriety test?

Whether it be from movies, tv shows, or secondhand experience, everyone seems to have some basic understanding of sobriety tests. Law enforcement officers make use of sobriety tests in the field to evaluate whether an individual might be impaired by either drugs or alcohol while operating a motor vehicle – otherwise referred to as Driving Under the Influence (DUI).

There are three Standardized Field Sobriety Tests that Virginia law enforcement tends to use: (1) Nine-Step Walk-and-Turn; (2) One-Leg Stand; and (3) Horizontal Gaze Nystagmus (HGN).

The Nine-Step Walk-and-Turn

This test involves walking heel-to-toe along a real or imaginary straight line for a total of nine steps, all the while counting the steps out loud. Following these first nine steps is a turn, after which you come back along the same line, heel-to-toe for nine more steps, continuing the spoken count. The law enforcement officer should provide some sort of demonstration.

In determining whether you pass or fail this test, the officer will consider the following errors:

  • Failing to maintain balanced or in the heel-to-toe position while listening to instructions
  • Starting too soon
  • Not touching heel-to-toe
  • Using arms to try and keep balanced
  • Turning incorrectly
  • Taking the wrong number of steps
  • Stopping the test at any point

The One-Leg Stand

As implied by its name, this test requires you to raise one leg approximately six inches from the ground without dropping it. As you hold your leg up, you must count out loud until told to stop.

In determining whether you pass or fail this test, the officer will consider the following errors:

  • Dropping your foot
  • Significant use of your arms to balance
  • Swaying while balancing
  • Any sort of hopping

The Horizontal Gaze Nystagmus Test

This is an eye test in which you will be instructed to follow some sort of object, often a pen, light, or the officer’s finger, with your eyes.

In determining whether you pass or fail this test, the officer will consider the following errors:

  • An involuntary jerking of the eyes
  • A lack of smooth pursuit/where the eyes jump or skip as you glance from side to side
  • Onset of nystagmus prior to 45 degrees (where your eyes begin to jerk before looking all the way to the side)

Refusing to perform field sobriety tests

What most people do not know, however, is that in Virginia, sobriety tests performed in the field are NOT required. That is, when an officer asks you to perform any given sobriety test while out in public, you can legally refuse. In some cases, it may appear that the tests are not optional, whether due to the officer’s phrasing or the coercive nature of the circumstances. For instance, an officer might say “I need you to perform a few tests for me”, “We are going to run through some field sobriety tests”, or anything else that sounds like more of a command than an optional request. Regardless, you are always entitled to this right and it can be invoked anytime.

It is important to note that when refusing to perform any field sobriety test, it is best to remain respectful with the officer. Simply expressing that you do not wish to participate in the test(s) will suffice. This is because the manner in which you interact with the officer may not only have an effect on how the rest of the stop will go, but also can help or hinder your entire case. Prosecutors often consult law enforcement before offering any deal; thus, someone who is more respectful may get a result than someone who was disrespectful. As such, despite the fact that being pulled over for a DUI is a high stress situation, it is always best to remain as calm and respectful as possible.

The exception to the right to refuse

The most important exception to this right to refuse is that while you may refuse the field sobriety tests, if the police have probable cause, you may not refuse the breath test they give you at the station. That is a separate breath test whereby refusal can be held against you. This is because any person driving on a highway in the state of Virginia is assumed to have consented to have samples of his or her blood, breath, or both taken for the purpose of determining the alcohol or drug content in the body – provided that they are under arrest for a DUI and it has not been more than three hours since the offense is alleged to have taken place.

It may look a little something like this: Regardless of whether or not you performed sobriety tests in the field, if the law enforcement officer still suspects you of driving under the influence, the officer will place you under arrest and transport you to the police station. This happens more often than not. Once at the station, the officer will have you take a breath test in order to obtain your blood alcohol level (BAC) and see if it is over the legal limit of 0.08. If you refuse blow for this post-arrest breathalyzer test, you will be charged with the civil violation of refusing the blood/breath test. The penalty for this first offense is a suspended license for up to one year. For a second offense within the span of ten years, the violation becomes criminal in nature, the penalty for which is up to a $2,500 dollar fine, up to one year in jail, and a three-year license suspension.

To summarize the most important points: (1) You can refuse to perform sobriety tests while you are in the field and have NOT been placed under arrest. (2) You cannot refuse to perform the breathalyzer/blood test at the police station once you have been formally arrested.