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The cop will ask you to perform some field sobriety tests. He needs enough evidence to make an arrest, and he may not have it yet, especially if you don't reek of alcohol and he stopped you for something minor like a broken taillight.
The tests are easy to flub, particularly if you're nervous or naturally uncoordinated. Sober people often don't perform well. The tests have one thing in common with driving: The more you do it, the better you get. That's why intoxicated drivers aren't obvious on the roadway, but completely fall apart when asked to stand on one leg or do something else that they never do in real life.
Too bad if you make a mistake. Given that practice improves performance, the cops don't allow do-overs. Most defense lawyers say you shouldn't do the tests, but declining can be awkward and look suspicious, especially if you've just said no to a breath test. So you face a crucial decision: You can refuse and limit the evidence that can be used against you if you're arrested and take the case to court. Or you can roll the dice, banking that you'll pass and convince the officer that you're okay to drive.
The federal government has certified just three sobriety tests as accurate in determining whether a person is intoxicated.
Horizontal gaze nystagmus, or HGN.
This is the one where the officer puts a pen in front of your face and asks you to follow it with your eyes as he moves it from side to side. He's looking for your eyeballs to jerk. With an 83 percent accuracy rate, this is the most accurate field sobriety test on the planet, and the police officer isn't going to care that the jerking occurs naturally in some people or that some substances, including nicotine, may exacerbate the jerking effect, as do some diseases, including syphilis. Practice won't help, nor will a high tolerance to alcohol. It is, therefore, a test to be avoided.
But how to say no? The test is not valid if a person has just one eye available. Remember at the beginning of this story, where we talked about having an eye patch ready? You might also tell the officer about that pesky tic that causes your eyes to blink involuntarily; blinking can be caused by anti-psychotic drugs, Tourette's syndrome and a host of other disorders. Or you can keep something handy to put into one of your eyes, say, mascara or a cigarette ash, which forces blinks and also explains your bloodshot eyes.
The one-leg stand.
An officer will ask you to stand on one leg, arms at your side, and count to 30 out loud. The feds say this test is 65 percent accurate in identifying drunks. However, it's not valid if a person is more than 50 pounds overweight. Nor should it be given if the person has a leg or back injury. Consider limping or groaning in pain as you step out of the car. When the officer asks you if you have any injuries -- and he should, before administering the test -- tell him about that tumble you took from your bicycle yesterday.
You will be asked to walk heel-toe in a straight line for nine steps, arms at your sides, then pivot and walk back to the officer in the same fashion. The walk-and-turn is 68 percent accurate in pegging drunks. As with the one-leg stand, it isn't valid if you're fat or injured.
If you decide to do the tests, listen carefully when the officer gives the instructions. The officer will tell you to start when he wants you to begin. This part of the instructions will not be emphasized, but it is crucial. You are allowed just one mistake. Starting before being told to begin counts as that one mistake. Make it and you have no margin for error.
Figure out which sobriety tests you're best at and steer the cop toward them. Police do have back-up tests; how else would they be able to test paraplegic motorists? A finger-dexterity test in which the suspected drunk sequentially touches fingertips to thumb is easy to master. First touch your index finger to thumb, then middle finger, then ring, then pinkie, counting each touch out loud: "One, two, three, four." When you reach the end, touch the pinkie again and do it in reverse order, this time counting backward: "Four, three, two, one." Using the hand that's not holding your drink, you can practice all night long without anyone noticing.
There's a risk to field sobriety tests even if you haven't been drinking. If you don't do well and a breath test shows you have little or no alcohol in your system, the police will look for drugs. You'll be asked to undergo an examination by a so-called drug recognition expert who's supposed to be able to tell whether you're high and, if so, what drug you're on.
You're not required to submit to this examination, but you can be ordered to provide a urine sample. And, as any pot smoker who's sweated a pee test knows, the test can come back positive even if you weren't stoned at the time you peed.