Field sobriety testing is one of the primary tools that law enforcement uses to make a DUI arrest decision. The results are also some of the most compelling evidence presented at trial.

However, the public generally knows very little about what field sobriety tests are and has even less of an understanding as to whether they can be relied upon to accurately detect alcohol or drug impairment.

The media often parodies field sobriety testing. Although these depictions can be quite amusing, they are more closely based in fiction. For example, we often see shows where the officer asks the driver to touch the tip of his nose or recite the alphabet backwards. These popular misrepresentations that mock field sobriety testing likely contribute to the mistaken belief that in the absence of a breath or blood test the government has “no evidence” or rather, “no reliable evidence” in a DUI prosecution.
In reality, law enforcement rarely relies upon the types of  roadside testing that we see on TV. Most people are surprised to discover that there are only 3 standardized field sobriety tests that are included in the national protocol for DUI detection. Also referred to as the standard “battery” of testing, these three tests make up the most reliably, and not surprisingly the most commonly relied upon tests in DUI investigations.
The 3 standardized field sobriety tests are horizontal gaze nystagmus (“HGN”), the walk and turn test (“WAT”) and the one-leg stand (“OLS”). These are the most reliable tests that well-trained officers rely upon in making an arrest decision. Obviously, the officer has other tools to evaluate impairment, including general observations and a portable breath test (“PBT”). But because the results of the PBT are often not admissible (at least in Georgia), a good officer will seek out field sobriety evidence.

The HGN test is not often depicted in the media and as a result, most jurors have never heard of it before. The HGN examination requires the officer to stand quite close to the driver, move a stimulus (often a pen light) in front of the driver’s face and closely observe the presence or absence of involuntary jerking of the eye. There are very specific steps the officer must take. Particularly as it relates to the manner in which the officer is trained to move the stimulus.

Under normal circumstances, the driver’s eyes should move smoothly back and forth across the field of vision. But when nystagmus is present, the officer should clearly see jerking of the eyeballs, similar to what happens when you roll a marble across sand paper. Alcohol consumption can cause this involuntary jerking of the eyes. The driver will not be able to tell if nystagmus was present or not, and as a result, most drivers assume that they have “passed” the HGN test. It is important to keep in mind that alcohol is really only one of many things that can trigger this involuntary jerking of the eyes. As a result, an officer will not rely on HGN alone when making an arrest decision.

The second test, WAT, is in part a balance test, with an additional component that evaluates mental impairment. The officer asks the driver to stand in a heel-to-toe position while he goes through a layered set of instructions regarding how the test should be completed. This is called the “instructional phase.” Most drivers don’t realize it, but the officer is scoring the driver on his performance during the instructions. For instance, if the driver steps out of the heel-to-toe position, that is scored against the driver. Similarly, if the driver starts during the instructional phase, that too will count against the driver. The idea of this test is to evaluate a person’s ability to remember the somewhat subtle series of instructions.

The WAT has a total of 8 possible ways the driver can make a mistake – resulting in the officer observing a “clue.” If the officer observes 2 of the 8 clues, then this will support his decision to arrest the driver. The other clues he is looking for include whether the driver raises his arms, stops while walking, does not touch heel-to-toe on every step, steps offline, takes an improper number of steps, or turns improperly.

Finally, the officer will administer the OLS. This test is very similar to the WAT, but is a bit less complicated. The officer is only looking for 4 possible clues, yet like the the WAT, if the officer observes 2 of those 4, he will likely arrest the driver for DUI. The officer asks the driver to stand on one leg, foot raised 6 inches from the ground, and count by 1000’s until the officer ends the test. The officer is closely watching to see if the driver puts his foot down, raises his arms, sways or hops and records any clues he observes.

It is important to fully understand the value of these tests when evaluating the strengths or weaknesses of any DUI case. Most DUI practitioners will tell you that officers rarely administer these tests perfectly, and there are a lot of interesting areas to explore during cross-examination to demonstrate why the officer’s interpretation of the field sobriety tests may not be reliable. That being said, it is nearly impossible to fairly evaluate whether the prosecution has a strong DUI case without knowing how the field sobriety tests were conducted.

 

For many people charged with DUI, it’s extremely puzzling how the government can go forward on a DUI case with “no evidence.” Underlying this question is the assumption that a blood or breath test is required to prosecute a DUI charge. However, this is not the case.

A DUI charge often involves a lot of different types of evidence. While we commonly hear about breath and blood tests in connection with DUI arrests, we are often less aware of the evidence collected during the roadside investigation.

Field sobriety evaluations are a crucial part of the investigation. But there are even more subtle stages that can support the officer’s conclusion that a driver is under the influence. These stages include the vehicle in motion, approaching the vehicle, and how the driver exits the car.

VEHICLE IN MOTION

Most drivers do not realize police officers collect evidence of impairment from the very first moment they observe the vehicle. Even if the initial traffic violation is mild, the officer is on alert and begins his investigation before pulling the car over.

For example, they monitor how long it takes the driver to respond to the emergency lights. Does the driver respond immediately, or does it take an inordinate amount of time for the driver to pull over?

They also observe how the driver pulls over.  Does the driver choose a relatively safe location, does the driver pull over an appropriate distance from the travel lane, and/or does the vehicle strike the curb?

APPROACHING THE VEHICLE

Once the driver pulls over, the next stage of the investigation begins. As the officer approaches the vehicle, he looks to see if the vehicle is in park or if the driver absent-mindedly left the car in drive. Occasionally a nervous driver will inadvertently put the vehicle in reverse instead of park.

Additionally, if the driver prematurely opens the door as the officer approaches, this can be considered a sign of poor judgment and possibly impairment.

After approaching the vehicle, the officer pays attention to how a driver produces his license. Does the driver fumble with the plastic sleeve in his wallet, or has the driver misplaced his license? Occasionally the driver will hand over the wrong card — such as an ATM card — instead of the license. This mixup is also something the officer might note.

During this stage, the officer is also on the lookout for any noticeable masking odors such as perfume, gum, or a recently lit cigarette. When present, the officer may conclude that it is an attempt to cover the smell of alcohol or marijuana.

EXITING THE VEHICLE

The next stage of the investigation starts when the officer asks the driver to step out of the vehicle. Officers closely monitor how drivers exit for any signs of impairment. Does the driver have trouble getting out of the car? Do they hold on to the vehicle for support? Does he stumble? These types of occurrences count against the driver.

After the driver exits the car, the officer asks them to walk to the rear of the vehicle. During this time, the officer closely watches to see if the driver lays his hand on the car for support. This action suggests that the driver is having difficulty balancing — another sign of impairment.

Next, the officer positions the driver in front of the camera located on the patrol car. They watch to see if the driver has trouble following instructions as to where to stand. And since most drivers are uncomfortable standing near fast-moving traffic, it is not uncommon for a driver to mishear or misunderstand where the officer is directing him to stand. As a result, any confusion as to the officer’s instructions is often attributed to impairment.

INVESTIGATION METHODS

In addition to looking for any of these behavioral signs of impairment, officers also use specific questioning tactics. One method includes frequently asking the same questions multiple times. Although it may seem as if the officer is incredibly forgetful, this is a very strategic and well-used investigative technique. Often drivers will give different answers – suggesting either a misrepresentation of the facts or impairment of mental faculties.

Another favorite method is asking the driver to state his location. Although this may seem like a relatively easy task for a sober driver, they are often escorting other people home, and they may be in an unfamiliar area. With the ubiquitousness of GPS navigation systems, this is not uncommon. And if a driver is unable to specify the exact location of the stop it is almost always attributed to impairment.

Along with questions regarding location, an officer asks the driver if he can accurately estimate what time it is without looking at a watch. Officers use this technique to evaluate the driver’s time and place orientation. Again, being unable to answer these questions correctly is considered a sign of impairment to the officer.

In short, while a blood or breath test is very compelling evidence in a DUI case, it is far from the only evidence. Balance, demeanor, speech, driving performance, and other unusual behaviors are just as compelling and routinely used in DUI prosecutions.

 

 

One of the first things drivers worry about when they receive a traffic ticket is what the financial cost of this ticket will be. Depending on your prior experience with traffic courts, you may be surprised by how quickly the fines and surcharges can add up. Although the surcharges are mandated by state law, the base fine can vary dramatically from court to court. This is primarily because most traffic offenses can carry a fine amount of anywhere between zero to $1000.00.

For example, on a simple failure to maintain lane ticket, the maximum fine is $1000.00 and the minimum fine is zero. The surcharges are then calculated as a percentage of the base fine.

What factors can affect the fine amount?

Fortunately most courts in Georgia will generally accept fines set at approximately $300 or below for these types of routine traffic offenses when the individual has a clean driving record. However, it is not entirely uncommon for judges or prosecutors to insist on the maximum fine of $1000.00 for certain drivers and/or offenses.

Although there are a few courts with a reputation of imposing the maximum fines on a regular basis, you will normally only see fines approaching $1000.00 when the case presents unusual circumstances. Sometimes, if the driver has an extensive driving history, the fine will be increased. For example, some judges will require $100.00 for every prior offense to be added to the base fine.

If a driver has been particularly unpleasant towards court personnel or the ticketing officer, the court or prosecutor may insist on a higher fine. As a result, always remember to be very careful and courteous when addressing all individuals associated with the court, whether by telephone or in person.

If the prosecutor reduces my citation, will the fine automatically be lowered as well?

Many drivers are surprised when they go to court and negotiate a reduction of the original charge to a lower speed, or a non-reportable offense, but are then told that the fine will be increased. This is a common practice amongst prosecutors in courts across Georgia. The prosecutor recognizes that there can be important and compelling reasons to reduce traffic offenses, which often depend on the individual circumstances of the driver and the facts that led to the citation. As a result, when a driver requests a reduction, the prosecutor may find it appropriate to impose a higher fine amount.

In addition to a higher fine, the prosecutor may also want the driver to take a defensive driving class. This is to ensure that while the driver may be avoiding a permanent record of the original citation, he or she will not likely forget the investment of time and money that was required to resolve the ticket.

If this is my first speeding offense, what are the maximum fines that could be imposed?

All fines refer to the base fine, so remember that additional surcharges will be added on. However, O.C.G.A. 40-6-1 sets a cap on the amount of fine that may be collected when it is the driver’s first offense. There is no fine imposed if you are driving 5 mph or less than the speed limit. If you are driving more than 5 mph but no more than 10 mph, the fine should not be more than $25.00. Between 11 and 14, the maximum fine is $100.00. The fine for speeding 15 mph to 18 mph is $125.00. Between 19 mph and 24 mph the maximum fine is $150.00. And finally, a citation for 24 mph through 34 mph will be capped at $500.00.

If this is not the driver’s first offense, than the normal $1000.00 maximum fine will apply for most traffic offenses.