Interviewer: Are there any more field sobriety tests that people are asked to undergo?
The Romberg Modified Test
Brian: There are two other field sobriety tests that are not often utilized by officers but they can be. One of them is called The Romberg modified test. Basically it’s where someone stands with their feet together, their arms at their sides, and they tilt there head back, close their eyes and start counting.
If they estimate 30 seconds incorrectly, too fast or too slow, that’s going to be a strike against them. You have to count down or recite the alphabet. If they skip something, open their eyes, or tilt there head forward, all of these actions are going to be considered as strikes against them.
The Romberg Modified Test Is Difficult to Perform Successfully
If they sway or fail to keep their feet together, that will be used as strikes against them. In keeping with the other tests that I have mentioned, it very unlikely that someone can successfully perform this type of test.
People don’t have the equilibrium generally to do this type of test. Just sit there with your head back, and your feet together, and your arms at your sides for 30 seconds and not open your eyes, it really is quite difficult. If anything, you are concerned about what is going on around you.
Finger to Nose Test
One of the other tests that the officers can administer, though it is rarely done, is one called the finger to nose. The finger to nose test is where a person has to stand with their hands to their side. Using one hand at a time, they raise their hands up to touch the tip of their finger to the tip of their nose.
This Is Another Field Sobriety Test That Is Very Difficult to Perform Successfully
There is a big problem with this one and it infuriates me. I think maybe that’s probably why the officers don’t do it that often because I think it would also infuriate the jury if you are asked to touch your finger to your nose. If you touch the tip of your nose with the pad of your finger instead of the tip, that is a strike against you.
You’ve done it incorrectly because you have to touch the tip of your nose with the tip of your finger. Not the pad. And so failure to follow the directions correctly and touch the tip of your nose with the pad of your finger is a strike against you. You’ve done it wrong.
You’re also given a strike if you open your eyes during the test. If you fail to keep your feet together throughout the test as well as if you fail to keep your head tilted back.
If you use the right hand when the officer requests you use the left hand. If you miss your nose with your fingertip, if you touch your nose with other than a fingertip, or if you’re swaying during a test, all of those actions are strikes against you.
And it is quite easy to fail because just doing two out of all those actions I mentioned will be considered a failure on the test performance.
Is it Likely That the Police Will Administer One of The Non-Standard Field Sobriety Tests?
Interviewer: Does help your case at all if the police do the non-standard field sobriety test, or are they considered just as scientifically based as the standard tests?
Brian: It’s odd if they administer one of the non-standard tests. If they are doing any field sobriety tests even if they are the non-standard ones, my job is to still try to explain to the jury why it doesn’t matter.
Why the fact that my client did the field sobriety test poorly is not an indication of anything. People have balance issues. Generally speaking, people just can’t do these tests.
Can a Police Officer Create His or Her Own Field Sobriety Test?
Interviewer: Do you ever have police make up new tests?
Brian: Yes. Actually every now and again a test pops up. I think there was one where an officer would throw down change and ask the person to pick it up. So, if the person wasn’t able to pick up the change or if they fell over while doing so, they would be marked as failing this “test.”
There’s another one recently where the officer was trying to do his own version of a horizontal gaze Nystagmus test. He would put the pen in front of the face while drawing a figure eight pattern to see if the person suspected of being intoxicated could follow the pen.
There’s no scientific basis for it.
Are These Newly Created But Unsanctioned Tests Admissible as Evidence?
Interviewer: Are the officer’s actions easier to defend against when they make up a ridiculous test such as one of those?
Brian: I think it is in some respects. It’s not a standardized test. A lot of these tests shouldn’t be administered simply because they are not done in proper conditions. To do the walk and turn test in an empty room with the lights on and nothing distracting will have a much different result than doing that same test out in the open with traffic going by.
It is not administered in proper conditions. It’s on the side of the road. That’s just where officers want to do it. Officers do tend to take a lot of shortcuts. The horizontal gaze Nystagmus test is supposed to take a specific amount of time, upwards of about a minute. But officers don’t allot that much time for it.
They will give it about fifteen seconds and they say, “OK, person is impaired.” There are problems in the way that they are conducted. They are standardized for a reason. And that’s because they are supposed to administer the tests in a very specific way, every time.
The problem is that they are not done the same way every time. Recently, we had an officer who was a very fast talker. He was explaining the instructions to my client in a very fast manner. The person can’t understand possibly what the officer is saying because he is saying it so fast. Then the officer will mark strikes against the person for not performing the test as instructed.
Interviewer: Is there anything else about field sobriety tests that you want to talk about?
Is There a Reason Why Police Officers Administer Multiple Field Sobriety Tests to Individuals They Suspect Are Impaired?
Brian: Yes, just one other aspect I would like to mention. I think when field sobriety tests are done sometimes it is just to annoy the suspect into submission.
There are times where the suspect is tired of doing these tests, and the officer just keeps asking them to do a different test. Do this different one.
They just give up and they say something such as, “Forget it. Just arrest me, I am impaired. Let’s stop doing these tests.” That is going to be used against them. That’s one of the worst things we have to defend against. Where a person actually makes some sort of admission of guilt because they are tired of doing the tests.
Interviewer: You’ve seen that happen?
Brian: A few times. Sometimes people just get fed up. They’re tired of doing tests. They think that they’ve done too many tests, or the test has taken too long. I did recently have one client who said that the officer told him that he was required to do at least two of the three tests.
