Police in Portland have a lot of options they can use to find evidence that you have committed the crime of operating under the influence (OUI). One method is the use of field sobriety tests (FSTs). These tests are designed to measure specific things that are known to suffer from alcohol inebriation, like your coordination, attention, and ability to multitask. However, those traits can also be compromised by other conditions, circumstances, or situations, making field sobriety tests incredibly inaccurate.
Nevertheless, field sobriety tests are frequently used by police and prosecutors and are widely believed to be accurate by juries. Numerous innocent people in Maine have been convicted for OUI based on a failed field sobriety test alone.
With the legal representation of OUI defense lawyers at WTB Law in Portland, you can lodge strong challenges to evidence obtained from a field sobriety test in your OUI case.
Field Sobriety Tests in Maine
There are lots of different kinds of field sobriety tests. Some tend to be reliable. Others are mere guesses at whether someone is inebriated.
Back in 1981, the National Highway Traffic Safety Administration (NHTSA) tried out some field sobriety tests to see how well they could tell apart someone who was over the legal limit from someone who was sober. After some consideration, the NHTSA decided that there were three standard field sobriety tests that were reliable enough for police to use in the field:
- The Horizontal Gaze Nystagmus Test;
- The One Leg Stand; and
- The Walk-and-Turn.
Where the NHTSA went, most states followed, and Maine was no exception. In the early 1990s, Maine started using these three field sobriety tests exclusively in the state to gather evidence of OUI. While Maine police occasionally use non-standard field sobriety tests, they rarely do so because they know that a good OUI defense lawyer can challenge them at trial.
Horizontal Gaze Nystagmus Test
The easiest field sobriety test for drivers is the Horizontal Gaze Nystagmus Test.
To conduct this field sobriety test, a police officer will hold up a pen or a finger about 10-15 inches from your face and slowly move it laterally. You are supposed to track the target from side to side with your eyes without moving your head. The officer will look for “nystagmus” in your eyes – an involuntary shaking of the eye that is a sign of alcohol intoxication.
Unfortunately, there are also a lot of other causes of nystagmus, including:
- medical conditions,
- contact lenses, and
Worse, eye nystagmus is a very small tremor, making it difficult to detect, even when it's known what to look for. Many police imagine seeing nystagmus when there really is none – a problem compounded by the fact that most Horizontal Gaze Nystagmus Tests are done in the dark or twilight when it is difficult to see. Finally, OUI suspects can fail the test if distracted by a busy background behind the moving target. Flashing or moving lights or traffic are all obstacles to overcome.
According to the NHTSA's own data, the Horizontal Gaze Nystagmus Test is only accurate 77% of the time. That means one-fourth of the time it is inaccurate.
One Leg Stand
Another standardized and NHTSA-approved field sobriety test used in Portland is the One Leg Stand.
In the One Leg Stand, the police officer asks that you hold one foot approximately six inches off the ground and balance on the other foot for 30 seconds. The officer often asks you to count to 30 while doing it.
Anyone who is clumsy while sober or who is not athletic will understand why the One Leg Stand is a poor indicator of whether a driver is drunk or not. Further, drivers who are in flip-flops, high heels, or other unstable footwear are going to be more likely to fail the One Leg Stand than those in sneakers.
Even the ground can be a factor in an inaccurate result: gravel or wet grass and/or any unevenness – common conditions at the side of the road where the One Leg Stand is often performed – can make the test more difficult.
Even at its best, the NHTSA admits that the One Leg Stand is only accurate 65% of the time. That means more than one-third of the time it is inaccurate.
Walk and Turn
Finally, there is the Walk and Turn.
By far the most complex of the field sobriety tests in Portland, the Walk and Turn begins with a long set of instructions, during which the OUI suspect cannot do anything. The test requires you to take nine steps in a straight line, touching your heel to the toes of each step. At the last step, you are supposed to turn on one foot and return to your starting point, touching heel to toe again.
Just like with the One Leg Stand, the Walk and Turn is conspicuously demanding on a physical level. Simply put, a lot of people can't walk in a straight line without struggling to keep their balance when they are perfectly sober. Turning on one foot and then doing it again is often too much for people who have not been drinking. Just like with the One Leg Stand, inappropriate footwear, leg injuries, health, age, and ground condition can all contribute to a failed Walk and Turn far more than alcohol consumption.
It should come as no surprise that the NHTSA has openly admitted that the Walk and Turn is only accurate 68% of the time. That means more than one-third of the time it is inaccurate.
Defending Against Evidence from Field Sobriety Tests
Depending on the circumstances, there are a whole host of defenses that can be raised against evidence obtained from a field sobriety test.
For starters, field sobriety tests are only accurate around seven in ten times when administered properly. Showing that the arresting officer manipulated the result of a field sobriety test by, for example, making you perform the Walk and Turn on a hill or the One Leg Stand in high heels, can drastically undermine the apparently damning results.
Similarly, by showing that you were physically susceptible to failing a particular field sobriety test, you can cast doubt on the weight of the test's outcome. People who are over the age of 70 merely need to point to their advanced age as a reason why they failed the One Leg Stand. This defense is valid even if your difficulties in performing the exam were not apparent to the officer. For example, you wear contacts and the officer requested that you perform the Horizontal Eye Nystagmus Test without knowing you had contacts in and that they could impact the results.
Even when you were physically able to perform a field sobriety test and the officer did not deliberately skew the test to make you fail, there are still numerous incidents where the police officer can make an important mistake that influences the outcome. For example, if the officer administered the Horizontal Eye Nystagmus Test and did not smoothly move the target from one side to the other, it would appear that your eyes were not “smoothly following” the target and, thus, the officer's error may contribute to you failing the test.
Remember: Field Sobriety Tests are Voluntary in Maine
The inaccuracy of field sobriety tests leads to an important thing to remember if you ever get pulled over by a police officer who thinks that you are under the influence and asks you to step out of your vehicle: field sobriety tests in Maine are voluntary.
There are two different kinds of OUI tests that a police officer can request if they suspect you are under the influence: Chemical tests and non-chemical tests. Chemical tests measure your blood alcohol content (BAC) and include:
- Breath tests
- Urine tests
- Blood tests
Refusing a chemical test violates Maine's implied consent law, which comes with automatic administrative penalties like a license suspension and additional criminal penalties such as mandatory jail and higher fines.
However, those penalties are not on the table when the test is not a chemical test. You can refuse to perform a field sobriety test without automatically losing your license.
Refusing a field sobriety test becomes even wiser when you consider that passing a field sobriety test – even multiple times – will not necessarily lead to the officer letting you drive away. Numerous OUI cases have involved drivers passing field sobriety test after field sobriety test, only to get arrested because the police officer has decided that the drivers were under the influence.
While passing a field sobriety test means nothing, failing it almost guarantees it will lead to an arrest and an OUI criminal charge or related offense.
Portland OUI Defense Lawyers at WTB Law
The OUI defense lawyers at WTB Law represent those who have been accused of drunk driving, including those who are facing charges supported by nothing more than field sobriety tests.
The lawyers at our Portland, Maine, law office have received extensive training in the administration of standardized field sobriety tests, giving them valuable insight into the administration and pitfalls of each test. Contact us online or call our law office at (207) 571-8146.