In last week’s blog, DUI – Property Damage, I mentioned that there are roadside sobriety exercises, such as the Walk and Turn exercise, the Finger to Nose exercise, and the One Leg Stand exercise, that officers request people to perform during a DUI investigation.

Roadside exercises, also called field sobriety exercises, are tasks designed to measure a person’s coordination, balance, and mental awareness. The roadside tasks are administered by law enforcement officers, in many cases an officer who is a member of a DUI Task Force, after a traffic stop (or at a DUI checkpoint) when the officers have reasonable suspicion that the driver of the vehicle is under the influence, whether it be under the influence of drugs or of alcohol. Administering these roadside tasks transforms a traffic stop into a DUI investigation.

“Reasonable suspicion” is the legal standard of proof required for officers to begin a DUI investigation. In order for an officer to have “reasonable suspicion” to believe that someone is committing, is about to commit, or has committed a crime (in this case, Driving Under the Influence), the officer must have more than a hunch based upon specific and articulable facts. Reasonable suspicion to begin a DUI investigation could come from the driver’s driving pattern, such as weaving, improperly changing lanes, driving with lights off at night, speeding, driving over a median, or an improper U-Turn, combined with physical indicators of impairment such as bloodshot, watery eyes, slurred speech, or the odor of alcohol.

There are three specific roadside sobriety tasks or exercises that have been approved by the National Highway Safety and Traffic Administration (NHSTA) that officers may request when they believe they have reasonable suspicion to begin a DUI investigation: 

1) Horizontal Gaze Nystagmus (HGN):This is the most “scientific” of the field sobriety exercises, and for that reason, in order for the results of this test to be admitted in court, the officer must have been “DRE certified.” (DRE means “Drug Recognition Expert). During this exercise, the officer typically asks the driver to look at a pen light follow it with her/her eyes as the officer moves the light up and down, and right and left. The exercise is designed to measure involuntary eye movement, called nystagmus, which can be an indicator of drug or alcohol use. Nystagmus is also a naturally occurring phenomenon in certain people, and can also be a side effect of a stroke or tumor.

2) One-Leg Stand: During this exercise, an officer will ask the driver to stand on one leg, lift the other leg approximately six inches off of the ground while keeping arms down at the side, and count to thirty. During the thirty second count, the officer will make notes of the driver’s wobbling, swaying, raising arms, dropping the foot to the ground, and how the driver counts – noting if the count is too slow, too fast, or skips numbers. NHTSA has stated that the exercise is not recommended for people who are older, who have disabilities, or who are over 50 pounds overweight. 

3) Walk and Turn: During this exercise, an officer will ask the driver to walk nine heel-to-toe steps in a straight line, turn around, and walk back. During the walk and turn, the officer observes whether the driver is able to follow instructions, maintain balance, maintain in a straight line, count the correct number of steps, and turn around appropriately. NHTSA has stated that this exercise is more accurate when performed in a well lit area, on a cleared, flat, hard, and dry surface. Again, this exercise is not recommended for people who are older, who have disabilities, or who are over 50 pounds overweight.

There are other alternative exercises that can be used in addition to the three tasks mentioned above, or in lieu of the three mentioned above if the person claims physically disabilities that will prevent them from appropriately performing the tasks. In Palm Beach County, a DUI investigation could also typically include:

1) Finger to Nose: During this exercise, the officer will ask the driver to stand with her/her feet together and his/her arms out to the side, at a 90 degree angle from the driver’s body. The officer will ask the driver to close both eyes, tilt the head back, and extend the arms one at a time to touch the tip of the nose with the tip of the finger by only bending the arms at the elbows, and then return the arms to the side. During the finger to nose, the officer will observe whether the driver sways, misses his/her nose, uses the wrong arm, or fails to return his/her arm to the side once finished.

2) Romberg Alphabet: During this exercise, the officer will ask the driver to state the alphabet from A-Z without singing.

3) Finger Count: During this exercise, the officer will ask the driver to extend one arm with palm facing up and then touch each finger tip with the tip of the thumb while counting out loud “one, two, three, four,” one count for each time the thumb touches a finger. The officer will then ask the driver to perform the same task in reverse, and repeat three times. During this exercise, the officer will observe things such as the driver’s ability to follow instructions, to count, and to touch each finger in the correct order.

During a DUI investigation, field sobriety exercises are voluntary.  An officer’s request for a person to perform these exercises is his attempt to either dispel his belief that the suspect is under the influence, or to gain additional evidence in support of his belief that the driver should be placed under arrest. Typically, officers are recording these exercises with the dash camera in their police vehicles, and the resulting video evidence can be used in court. This is why it is important for people to know that a person who is requested to perform field sobriety tasks does not have to perform them. There are many reasons that a person could perform poorly on the exercises, even if that person is not under the influence. Physical disabilities, such as foot, knee, or balancing problems, could cause a person to not perform the exercises to standard, potentially resulting in their arrest and video evidence that could be presented to a jury.

Driving Under the Influence in the State of Florida can have serious consequences, including jail time, probation, driver’s license suspension. Anyone arrested for a DUI should contact a Criminal Defense Attorney to explore their defense options.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

 

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