What are “field sobriety tests” and do I have to perform them? Field sobriety tests (FSTs) are a series of exercises used by law enforcement officers to make “arrest” decisions during OUI investigations. Officers also use FSTs to attempt to show “impairment” at trial. FSTs are voluntary. You do not have to perform them. A refusal to perform them may result in the officer deciding to arrest you and that refusal will likely be admissible in a potential trial. That does NOT mean that you will be found guilty.
Additionally, if a judge decides, prior to trial, that the officer had insufficient cause to arrest you, your case may be dismissed. You have to make the decision of whether or not to perform the FSTs on your own. You are not entitled to the advice of counsel at that stage of the investigation.
Here’s a little background on FSTs: FSTs, for the most part, are divided attention tasks. The National Highway Traffic Safety Administration (NHTSA) adopted three FSTs as Standardized Field Sobriety Tests (SFSTs) in 1978. Those are the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn test and the One Leg Stand test. Most officers have insufficient training and understanding of HGN to evaluate their observations appropriately. The other two tests involve an intricate matrix of instructions and tasks and are evaluated by the officer based upon an equally intricate scoring protocol proscribed by NHTSA. Although FSTs/SFSTs purportedly measure the subject’s level of impairment, they are of little to no value in terms of measuring that subject’s ability to perform normal tasks, including normal divided attention tasks, such as operating a motor vehicle safely.
The officers who administer FSTs/SFSTs receive a week of classroom training with the benefit of a training manual plus actual gymnasium-type practice before they are turned loose to ask folks to perform them. They do not study or practice on the roadside with blue lights flashing. Most importantly, they do not practice them under the threat of being arrested if they make any mistakes. Ultimately, jurors (regular folks), not police or prosecutors, decide what, if any, weight to assign to FST/SFST evidence. Citizens, not government agencies, have the final say.
If you have been accused of OUI or any criminal offense, call me for a free consultation at NICHOLS & CHURCHILL 207-879-4000. I am in the Time & Temperature building, 477 Congress Street, Portland. Check me out at www.nicholschurchill.com.
Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).