A couple thoughts on field sobriety tests that I’ve confronted in a few recent cases. Did you know that when stopped by a law enforcement officer, you need not submit to field sobriety tests? You may refuse to submit to the traditional battery of tests which commonly include the Horizontal Gaze Nystagmus test, the Walk-and-Turn, and the One-Legged-Stand, among others. Of course, you wouldn’t know that based on the way in which the “request” is presented.
When you are ordered out of your vehicle, the law enforcement officer will often say, “What I would like you to do now is stand here (with flashlight shining in your eyes), look at my finger (or pen) and follow it as I move it side to side.” What you don’t know is that the officer is already collecting evidence he or she intends to you as probable cause to place you under arrest. The officer will move the object from side-to-side and observe your eye movement. The officer will then record what he or she observes which almost always is “a lack of smooth pursuit and distinct nystagmus at maximum deviation.”
Regardless of how you think you do, the officer will move on to the “walk-and-turn” or “one-legged-stand” test. The officer will say, “what I would like you to do next is stand with your hands at your side and place one foot in front of the other while I explain what I want you to do” The officer will not tell you that at that moment, the test has started and if you return to a normal stance or otherwise fall out of position, the officer will mark that against you in the overall score. You will perform the test because it does not seem as though you have a choice and the officer will almost always conclude that you did not pass.
It would seem that if these tests are not required under the law, perhaps the manner in which the “request” is put to the subject should be scrutinized and even regulated to include some sort of insight that though the officer is “requesting” the subject perform these tests, there is no requirement under the law that the subject perform them.