Arrested for a DUI but feel that you passed your field sobriety tests (FST)?
As a private DUI defense lawyer in Missoula, MT I can tell you that almost every DUI client I have had has thought that they have “passed” the field sobriety tests the police administered. Unfortunately, they were wrong. All of them. In this post, I’ll explain the three types of FSTs and why they’re designed to make you fail — even if you’re sober.
What Is Field Sobriety Test?
FSTs, as we call them, are nationally recognized drills taught to all law enforcement officers capable of arresting someone for a DUI. These vary from state to state somewhat, but overall, the vast majority of the country uses 3 different drills.
The thing about these drills are that they are not pass-or-fail “tests” like you might think. Instead, I call them drills, because law enforcement is trained to put you into a scenario that is intended to make both sober and intoxicated people show “cues” of possible intoxication. No matter what you do on these drills, you can’t pass them. Similarly, you can’t really fail them – although falling over and being utterly unable to stand on your own feet is pretty close.
Police officers are supposed to judge these three tests and write down any “cues” that vary from their instructions. What are the three field sobriety tests?
The Horizontal Gaze Nystagmus Drill
The first test is called the HGN or Horizontal Gaze Nystagmus drill. Nystagmus is the medical term for a jumping of the eye. The officers move a stimulus (often a pen, or just a finger) around in front of you. The officer is supposed to look for this jumping of the eye during the drill, because alcohol causes Nystagmus. Police don’t tell you that Nystagmus occurs naturally in people for at least 40 different reasons.
The other problem is, the test doesn’t really test amount of alcohol, just the presence of jumping that may or may not be caused by alcohol or drugs. If an officer is truthful, they would tell you that the more alcohol consumed, the greater the Nystagmus or jumping is in the eye. So why is there a drill that looks just for jumping, when police are trying tell the amount of alcohol consumed? These drills are intended to give law enforcement some subjective signs of alcohol intoxication – regardless of how flawed the drill is.
Field Sobriety Tests Are Built to Create Evidence.
Many drivers believe they “passed” field sobriety tests. The problem is that officers are not simply grading you like a normal test. They are looking for small cues they can later use in a DUI report. Before a roadside encounter becomes the strongest part of the State’s case, understand what these drills are designed to do.
Common Drills
Most roadside DUI investigations rely on HGN, Walk and Turn, and One-Leg Stand drills.
Officer Report
Every instruction, movement, pause, or correction may be written as a possible impairment cue.
Different Decisions
Roadside field drills are different from evidentiary breath or blood testing under implied consent rules.
Montana DUI Defense
The defense may challenge the stop, instructions, scoring, testing conditions, and officer conclusions.
What Are the Three Field Sobriety Drills?
Tap each drill to see why a sober person can still create “cues” an officer may use in a DUI case.
Horizontal Gaze Nystagmus
The officer watches your eyes while moving a finger, pen, or stimulus. The defense may review whether the officer gave proper instructions, positioned the stimulus correctly, checked for medical issues, and scored the eye movement fairly.
Walk and Turn
This drill asks you to listen, balance, count steps, turn a specific way, and follow instructions under pressure. Uneven ground, footwear, nerves, injuries, and unclear instructions can all affect performance.
One-Leg Stand
Standing on one leg while counting may sound simple, but conditions matter. Balance problems, age, footwear, weather, fatigue, and road surface can all create cues that do not necessarily prove DUI.
Could Your Field Sobriety Results Be Challenged?
Tap any item that sounds true. These issues can help visitors understand why field sobriety evidence may deserve a closer legal review.
Your Best Next Step
If any of these apply, do not assume the field sobriety evidence is unbeatable. A DUI lawyer can compare the officer’s report against video, training rules, test conditions, and medical explanations.
After Field Sobriety Tests, the Case Usually Moves Quickly
Field sobriety drills are often only one part of a DUI investigation. The next steps may create more evidence, deadlines, and decisions.
01 Roadside Observations +
Officers may record speech, smell, eyes, balance, driving behavior, and answers to questions. A defense review should compare those observations with video and the full context.
02 Portable Breath Test +
A roadside portable breath test is different from a later evidentiary test. The defense may review whether the request, device, and result were handled properly.
03 Arrest and Evidentiary Testing +
After arrest, breath or blood testing may create separate legal issues. Refusing evidentiary testing can affect license consequences, so these facts should be reviewed fast.
04 Attorney Evidence Review +
A DUI attorney can review the stop, instructions, scoring, bodycam footage, reports, testing records, and whether the field drills were used fairly.
See What Clients Say About Judnich & Sherwood
DUI stops are stressful, especially when field sobriety tests become part of the evidence. Reviews can help visitors feel more confident before reaching out.
Arrested After Field Sobriety Tests in Montana?
Speak with Judnich & Sherwood before assuming the officer’s report tells the whole story. Field sobriety evidence can be reviewed for testing conditions, medical explanations, unclear instructions, video contradictions, and scoring issues.
The Walk-and-Turn Drill
A second drill is called the Walk-and-Turn drill. This is also considered a “divided attention” drill. Divided attention means that an officer explains the instructions of the drill to you (usually really fast) and you are supposed to memorize the instructions perfectly AND perform the drill perfectly. The theory is if you are intoxicated you can’t listen, retain, and do the drill.
The problem is probably obvious: Even if you’re sober, it’s really hard to memorize rapid-fire instructions and do them perfectly. Plus, if you ask the officer to repeat the instructions, that’s a possible sign of intoxication. (The game seems rigged, right?)
So what do the cops tell you to do? Imagine this: You’ve just been pulled over and pulled out of your car. Cop lights are blaring overhead. An officer is accusing you of a DUI and asking you to place your right foot in front of your left foot, heel to toe, arms at your sides and hold that position. And that’s not even the actual drill! (Of course, if you break that stance, it’s a cue you’re drunk.)
Photo: Artondra Hall
Then the officer will point to a painted line (or ask you to create an imaginary line), then put one foot in front of the other, walk heel-to-toe, do not step off the line, keep your arms at your sides, and count out loud from one to nine as you take each step. After the ninth step, you’re supposed to pivot around your front foot, take short choppy steps, and then return to taking heel-to-toe steps back to the beginning with a total of nine return steps.
Got it? Do you remember every exact instruction from the beginning without going back for reference? Probably not. If you don’t remember them all, they will probably consider you intoxicated.
The One Leg Stand
The third and usually final drill is referred to as the One Leg Stand. This is another divided attention drill.
After you have walked this line and realize you may be in some trouble, the officer will ask you to do this: Raise one foot (either one) off the ground at least 6 inches. Do not stop, don’t let your foot touch the ground, point the toes of the raised foot toward the ground, keep your arms at your side, keep your eyes on your raised foot, and count out loud from 1 to 30.
Give it a try. If you sway, lose your balance at all, raise your arms at all, hop, put your foot down, mis-count, fall, or do anything other than what was instructed, those are all cues you are drunk. Think it sounds easy? Go on YouTube and search people performing FSTs and see what you think.
Conclusion
The bottom line is, these drills are intended to make anyone look suspicious so an officer can request a breath test.
The drills basically let you know if you have good balance and attention. If the officer is doing her job, she’ll ask you first if you have any physical problems that would prevent you from doing the drills. (Officers are not supposed to perform the drills on someone with balance problems, knee problems, back problems, ankle problems, foot problems, etc.) The problem is that officers rarely explain to the subject the extent of the drills they expect them to do. So how is someone supposed to know if they have a physical condition that may prove problematic as to show “sober balance”?
So the next time someone accused of a DUI tells you that they “passed” the sobriety testing, you can open up a can of knowledge on them and tell them that they simply participated in drills intended to show anyone could be intoxicated. You can also tell them they had the right to refuse to perform the drills, but didn’t. Yeah, you can politely exercise your constitutional rights when an officer asks you to do any of this and say, “No, thank you” — and they can’t force you to do them. That’s what I recommend you do!
If you’ve been charged with a DUI, I can help you, even if you failed the field sobriety tests (as most people do!). Contact or Call me for a free consultation at 406-721-3354 or toll free, 855-853-1482.
