Once you have been pulled over, the first step of the DUI stop is for the police officer to detect preliminary signs of drinking. He or she will often ask if you have been drinking. It’s a trap! Regardless of whether you are under the legal limit, you can get what is called a wet and reckless when you are driving a vehicle in a reckless manner and you are under the influence of alcohol. How can you be reckless? By driving distracted, by failing to completely stop at a stop sign. Any of us can be accused of driving recklessly at one point in our driving careers. Do not think you can talk yourself out of going to jail if you are honest about how much you had to drink and feel fine to drive. Also, I cannot count how many DUI reports I have read where the driver claimed to have had two beers or two drinks. Even if that is the truth, you will look like a liar and that will warrant further investigation. The police officer will also be leaning in close to see if there is the odor of alcohol on your breath. I have seldom read a DUI report where the officer did not detect a strong odor of alcohol, and that includes cases where there was zero alcohol in the drivers system. The officer is looking for evidence to take the next step, do not volunteer information to help the officer administer a field sobriety test. There is a lot of Federal Grant money at stake, and nothing gets more grant money like showing arrests and convictions.
If you are ordered out of the car, the National Transportation and Safety Administration (NTSA) has a standard field sobriety test to be administered. That test is composed of the walk and turn, the one legged stand, and the horizontal gaze nystagmus test. Reciting the alphabet backwards is not part of the field sobriety test, but it is a great way to get you to say something like “I couldn’t do that if I was sober!”. Remember you are being recorded as you take this test.
The walk and turn test consists of you walking a straight line, turning around, and walking back. What the officer is looking for is whether you take the correct amount of steps, whether you maintain heel to toe, whether you use your arms for balance. Some of us have poor balance. Some of us are nervous when interacting with police, so while it may not seem like a big deal if we took 9 or 11 steps instead of 10, the officer will view is as evidence of intoxication. If the road surface is uneven, it could impact your balance. If you have concerns about the location of the test, voice those concerns, but be polite and respectful while you are doing so.
The one legged stand requires you to balance on one leg and count to 30 as you do it. The police officer is looking for evidence like swaying, putting your other leg down, failing to perform the test for the required time (either too short or too long), or using your arms to steady yourself. If you have injury or improper footwear, this test could be hard for you. If you are asked to perform this test on an uneven surface, it could be a challenge. Do not be shy about asking the police officer to allow you to change your footwear, or find a flat surface. But be polite and respectful, you are being recorded.
The horizontal gaze nystagmus test is designed to detect involuntary movements in your eyes. The officer will hold a stimulus, like a pen or pencil, six inches away from your eyes. Moving at a two second pace, the officer will watch as your eyes track the stimulus. When your eyes are looking 45 degrees away, towards your peripheral vision, if you are intoxicated your eyes should involuntarily twitch. However, if the stimulus is too far away from you face, or if the stimulus moves too fast, it can invalidate the test. If you are asked to perform the test while facing the police car’s flashing lights, that can cause eye twitching that has nothing to do with alcohol. If you have a lazy eye or medical condition that affects your eyes, that could also impact your ability to pass this test.
