DUI Washington Blog

Burg Criminal Defense is often asked whether you can refuse to take field sobriety tests without it being used against you in court.   Yes, you definitely can – however, you must do this correctly and the correct way to do it is by asking for an attorney, not to just say that you don’t want to do the tests.  In the State of Washington, roadside sobriety tests are voluntary. This means you do have the right to decline taking them.

Speak with a DUI Attorney Instead of Performing Field Sobriety Tests

Instead of performing the field sobriety tests, it is better to ask to speak with a DUI attorney.  The police officer should then cease  all questioning. You can expect an arrest to follow. Then arrest you will be provided with an attorney.   The attorney will advise you not to perform the tests, reducing the ability of the prosecution to use the tests against you. You will be able to say that your attorney advised you not to take the DUI field sobriety tests. When a private attorney isn’t available, you should speak to a public defender.

However, many people don’t know this until after they have been arrested.  Unfortunately, if you fail to perform well on a field sobriety, this could be used against you. You may be reading this blog post because you already performed poorly on a Washington DUI roadside sobriety test. You didn’t know that it was your legal right to ask for an attorney.  Not to worry. This is very common and we can still help you if poor test performance is working against you.

Field sobriety exercises can be unreliable for many reasons.

The National Highway Traffic Safety Administration (NHTSA) believes they have standardized these tests, but how do you standardize a test when so many variables can exist—different weights, varying athletic abilities, assorted medical conditions and diverse ages? These tests assume everyone can perform well when sober, which can be unfair.  They also vary in that not all officers administer the tests in the proper way.  If the officer did not follow the NHTSA standards than we can show that the tests are not valid.

Testing conditions are another issue with field sobriety tests.  Being pulled over on suspicion of a Washington DUI is an upsetting event for anyone. The resulting anxiety and nervousness can be misinterpreted as impairment.  Fatigue can impact performance on a roadside test as can low blood sugar. Traffic passing too close on the roadway can cause anxiety. The shoulder at the side of the road is often tilted, making standing on one leg or walking a straight line more difficult for most people. If it is raining, the road or sidewalk is often slippery. Most people aren’t familiar with the sobriety tests which can produce unreliable results.

NHTSA considers the horizontal gaze nystagmus or HGN test one of the most accurate field sobriety tests available for proving a Washington DUI. Prosecutors would like juries to believe that it is very accurate. It isn’t quite as perfect as they would like you to think. If lighting is poor, it affects an officer’s ability to conduct the test accurately. HGN can also occur for reasons that are not connected to alcohol consumption.

DUI Attorneys Offer Hope.

All of these things can invalidate roadside DUI evaluations based on field sobriety tests. As far as we are concerned  there is hope for everyone we meet with.  Over the years we have seen so many Washington State DUI cases resolved in ways that at first blush did not look possible.  So, please do not give up hope about your case.  We may be able to help you resolve it in a way you never thought possible.

In conclusion, if you have been stopped for an infraction in Washington State and it appears that the officer is doing a DUI investigation, the very best thing to do is to ask for an attorney and keep your mouth shut.  You may be arrested, but you will have helped yourself by maintaining all of your constitutional and state rights.

As DUI attorneys many people ask us whether or not they should take the field sobriety tests. In Washington state, field sobriety tests are voluntary, and you need not perform them. However, if you do decline to perform these tests, it could be used against you during the trial.

How to Refuse a DUI Roadside Test without It Hurting You in Court

There is a way to avoid a refusal to perform field sobriety tests being used against you—ask to speak to a lawyer before saying anything else. If you ask to speak to an attorney, an attorney will advise you (and the often the police officer) that you are not interested in performing these tests. If that occurs, then it is unlikely that the refusal to do these FSTs can be later used against you.

Another method you can use to prevent your refusal to take FSTs used against you later is to politely say “my attorney advised me not to take these field sobriety tests.”

One final method of not taking these tests is to hand the officer your attorney’s business card.

Unfortunately, most people are not familiar with their legal rights prior to being arrested for DUI; therefore they end up taking these field sobriety tests. So, the question then becomes, what do these field sobriety tests mean?

According to the National Highway Traffic Safety Administration (NHTSA), only three DUI field tests have scientific validity behind them. However, even that science is subject to challenge. Any other test an officer asks you to perform in the field has not been validated. Let’s look at these three tests.

Horizontal Gaze Nystagmus (HGN)

Nystagmus is a scientific term that describes an involuntary jerking of the eyeball. Nystagmus can be classified as either horizontal or vertical gaze nystagmus. Certain chemicals like alcohol and drugs can exacerbate nystagmus. According to NHTSA (but subject to challenge), the higher the concentration of certain chemicals in the blood, the more pronounced the jerking motion of the eyeball becomes.

NHTSA researchers found this test, when used alone was accurate 77% of the time for predicting BAC levels of .10 or higher. Washington state courts will not allow this test into evidence as demonstrating a specific breath-alcohol level. However, most judges will allow the HGN into evidence to show that an individual has consumed alcohol.

Because the results can vary so widely, a DUI attorney must know the various nystagmus and their symptoms thoroughly. If the officer that conducted the test has not been properly trained, he could misdiagnose HGN. A knowledgeable DUI attorney will identify any inconsistencies in procedure and be able to attack the validity of the test.

Walk and Turn (WAT)

Unlike the HGN test which depends on involuntary movements of the eyeball, the Walk-and-Turn test is a divided attention test. The theory behind this test is that most unimpaired individuals can divide their attention between simple mental tasks and physical tasks. However, because the Walk and Turn test is based on balance, some people will not be able to perform it well under any circumstances.

If you agree to perform this test, you will be told to take nine steps, heel-to-toe along a straight line. Then you will be asked to turn around on one foot and walk back to your starting point placing each foot down heel-to-toe until you reach your starting point.

During this exercise, the officer will be looking for eight things. Do you have trouble keeping your balance while you are listening to the instructions? Do you start before the officer has finished the instructions? Do you stop so you can regain your balance? Do you fail to touch your heel to your toe at any point? Do you step off the line? Do you use your arms to keep your balance? Do you make the turn correctly? Do you take the right number of steps?

In a 1981 study NHTSA researchers found this test when used alone was accurate only 68% of the time for detecting BAC levels of .10 or higher. A later study in 1998 indicated that if you have trouble with two or more of these eight indicators, the test is 79% accurate at detecting BACs of 0.08 or greater. Again, this test will not be allowed into evidence to show a specific BAC level.

One Leg Stand (OLS)

The One-Leg Stand test requires you to stand with one foot lifted off the ground about six inches. You are then asked to count up from a thousand (one thousand-one, one thousand-two, etc.) until you are told to put your foot down. This is another divided attention test.

The officer will observe you for 30 seconds. During this time, the officer will watch for four things: 1) Are you swaying? 2) Are you using your arms for balance? 3) Do you hop to keep your balance? 4) Have you put your foot down before time is up?

In 1981, NHTSA researchers found this test, when used alone was accurate only 65% of the time for detecting BAC levels of .10 or higher. A more recent study in 1998, indicates that if you do two or more of the things the office is looking for, there is an 83% chance that you will test with a BAC of 0.08 or higher.

You can expect these three tests to be part of standard procedure if you are stopped for a suspected DUI. Again, our advice is to request to speak to an attorney before doing these tests. An attorney most likely will advise you NOT to take these field sobriety tests. If a private DUI attorney is not available, we suggest that you speak to the public defender.