There is no magic to field sobriety tests used in Massachusetts drunk driving prosecutions. Contrary to popular belief, they do not measure intoxication or alcohol impairment. Instead, the tests measure, balance, speech, coordination, concentration, the ability to follow directions, the ability to divide attention, and physical condition. To be valid, these tests must be conducted and scored properly by a police officer who is trained and certified to administer the tests and interpret the results. Attorneys Brian E. Simoneau and Paul B. Watkins have both been trained, tested, and certified to perform Standardized Field Sobriety Testing. Also, unlike the vast majority of Massachusetts DUI lawyers, both attorneys have administered field sobriety tests in actual DUI cases during their careers as working police officers. Also, Attorney George E. McCarthy, Jr. understands these tests inside and out. This understanding allows him to deliver a blistering cross-examination on this important issue.

Massachusetts courts have ruled that in order for a police officer to ask a driver to perform field sobriety tests in a drunk driving case, the officer must have a reasonable suspicion that the driver was operating under the influence of alcohol. This reasonable suspicion must be based on specific and articulable facts. The results of any field sobriety tests which were conducted without reasonable suspicion must be suppressed, because they were obtained in violation of the DUI defendant’s constitutional rights.

Field sobriety tests are tests administered by police officers, in Massachusetts DUI cases, to determine whether there is probable cause to believe that a driver is under the influence of alcohol. Although the type of test and the manner in which the tests are scored and administered may vary, all field sobriety tests have two essential purposes. The first purpose is to establish probable cause for a DUI arrest. These Weston MA standard field sobriety tests are administered during the “pre-arrest screening” phase of the DUI case and observations made by a police officer during field sobriety tests can provide the required probable cause for a DUI arrest. The second purpose of field sobriety tests is to produce evidence that can be used by the DUI prosecutor at the drunk driving trial.

One of the most common field sobriety tests administered in Massachusetts DUI cases is the Horizontal Gaze Nystagmus Test. The HGN test involves observing an involuntary jerking of the eyeball, which is supposed to correlate to the amount of alcohol consumed. This test is conducted by requiring the DUI suspect to follow the tip of a pen with his eyes, without moving his head. This test is inadmissible in drunk driving trials without expert testimony to explain how and why it works.  Other common field sobriety tests include the one-leg stand, the 9 step heel to toe, which is also called the walk-and-turn, the finger-to-nose, and the reciting the alphabet test. Expert testimony is not required for the admission of the results of these tests.

In the walk and turn or “heel to toe” test involves having the DUI suspect take 9 steps on a straight line, touching the heel of one foot with the toe of the other. The suspect is then supposed to pivot on one foot and take another nine steps. There are only eight ways to “fail” the test: losing balance while listening to instructions, starting before the instructions are finished, stopping too soon to maintain or regain balance, failing to walk in a heel-to-toe manner, stepping off of the line, using arms for balance, making an improper turn, or taking the wrong number of steps. According to the National Highway Traffic Safety Administration 79% of those who fail the walk and turn in 2 or more ways are at or above the legal limit. However, this doesn’t take into account factors such as weight, age, medical problems, lighting conditions, the testing surface, and other factors which may negatively impact performance.

The one-legged stand field sobriety test requires the DUI defendant to raise a foot off of the ground approximately 6 inches and count out loud to the number 30, by thousands. There are only 4 ways to “fail” this test: Putting the foot down, Using arms for balance, Swaying while balancing, and hopping to maintain balance. The acronym “PUSH” can be used to remember these 4 ways to fail.

These DUI field sobriety tests indisputably measure coordination, balance, and the ability to follow instructions. However, there is much controversy and dispute over the question of whether they accurately and reliably measure alcohol intoxication. Often these tests are improperly administered and scored. Furthermore, there may be innocent and valid reasons why an individual “fails” a field sobriety test. The best Massachusetts DUI attorneys successfully attack these tests on a daily basis throughout the state. If you have been charged with DUI, you need a lawyer who knows these tests inside and out. This knowledge may very well get you a not guilty verdict.

Police Trainer Gordon Graham retired as a Captain from the California Highway Patrol in 2006. He was involved in the development of the Drug Recognition Expert in California and during his career as a Highway Patrol Officer, he has conducted perhaps tens of thousands of Field Sobriety Tests in DUI cases. Watch him instruct police officers regarding the administration field sobriety tests in drunk driving investigations.