Pass. Fail. Refuse. Field Sobriety Test and your Rights

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Pass. Fail. Refuse. Field Sobriety Test and your Rights


Drivers are more than aware that driving under the influence is illegal. Drivers should use Uber or a Designated Driver when they plan to have a drink that would make them less safe behind the wheel. However, if one should find themselves in violation of the law what do authorities need to charge for a DUI?


According to Georgia code O.C.G.A. 40-6-391 (2010) 40-6-391, which details Driving under the influence of alcohol, drugs, or other intoxicating substances;
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
(1) Under the influence of alcohol to the extent that it is less safe for the person to drive;
(2) Under the influence of any drug to the extent that it is less safe for the person to drive;
(3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive;
(4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive;
(5) The person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended; or
(6) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.


Generally, authorities observe that a driver is less safe because they are swerving. Swerving alone is not enough to charge for a DUI. Swerving may be enough to initiate a field sobriety test which is used to determine that a driver is not safe enough to drive. Yet are the tests reliable? Can one refuse the tests altogether? As far as reliability there are conflicting reports;

  • According to researchers, officers trained to conduct Standard Field Sobriety Test (SFSTs) correctly identified alcohol-impaired drivers over 90% of the time (Burns and Anderson 1995; Stuster and Burns 1998).
  • However, in Ohio v. Homan,732 N.E.2d 952 (Ohio, 2000), Ohio became the only state where courts ruled that evidence is “inherently unreliable” and inadmissible when gathered from field sobriety tests that deviate from the National Highway Traffic Safety Administration (NHTSA )standards.


Types of Field Sobriety Tests


The suspect will stand on one leg. If there is swaying or imbalance the suspect could be charged with DUI.


  • A suspect without general dexterity may not be able to stand on one leg in any situation and the stress of being pulled over could weigh heavily on the suspect’s ability to carry out the test.
  • The test may be inaccurate if the driver is overweight, affected by prescription drugs, has poor night vision or is wearing high heel shoes or flip flops.
  • Officers learn the test in a controlled environment then administer the test in unpredictable environments.

Horizontal Gaze Nystagmus (HGN)

The police officer will have the subject follow an object (such as a pen) while the officer checks for signs of intoxication like lack of smooth pursuit and deviation.


  • HGN results are vulnerable to challenges and are likely to be excluded by the court if the test was not administered in strict compliance with established protocols.
  • The HGN test claims to gauge intoxication by measuring the involuntary movement of the eyes. However, horizontal gaze nystagmus can be caused by problems in an individual’s inner ear labyrinth.
  • Certain kinds of diseases like Influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, epilepsy, and other disorders may cause nystagmus.
  • Conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus.
  • The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. (Quoting Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI J. 1, 3-4 [1987])


The suspect takes 10 steps (heel to toe), then turns and repeats the 10 steps back. The officer checks to see if the driver is following directions properly without tripping or swaying while touching finger-to-nose, counting backwards and reciting the Alphabet.


  • There are numerous ways for an officer to make a mistake in instructing the suspect on how to perform the test or make a mistake on how to interpret the results of the test.
  • The National Highway Traffic Safety Administration Participant Manual cites “recent research” that indicates an accuracy of 79% for the Walk and Turn test.
  • The test assumes that the suspect does not have any physical condition that could impact the results.
  • Counting backwards or reciting the alphabet could be difficult in any situation and is especially influenced by the pressure of the situation.

Test Refusal

You may lawfully refuse a field sobriety test. They are voluntary. The right to refuse field sobriety tests is frequently confused with Georgia’s Implied Consent law. Refusing to take field sobriety tests, before you are placed under arrest, carry no driver’s license penalties. However, under Georgia’s Implied Consent law once one has been placed under arrest, refusing the chemical tests of blood, breath, or urine can result in strict driver’s license penalties.


If one finds themselves subject to a field sobriety test they should refuse and contact a lawyer immediately so they may successfully and legally challenge the tactics the authorities used to determine whether they were unlawfully under the influence.

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