Are Sobriety Tests Fair?

It's essential for the officer to identify and consider these variables to maintain the integrity of the assessment.

The research underpinning sobriety tests indicates that certain physical conditions, such as issues with the legs, back, or inner ear, can adversely affect a person's ability to successfully complete the tests, even in the absence of intoxication or impairment due to the consumption of impairing substances.

Additionally, age plays a significant role; individuals over 65 often face challenges in performing these tests due to natural age-related physical changes.

The research further highlights that individuals who are significantly overweight, particularly those who are 50 pounds or more over a healthy weight range, may struggle with the One Leg Stand test under sober conditions.

In light of these findings, it's recommended that officers modify their testing approach when encountering individuals with these conditions.

For instance, if a person exhibits any of these physical limitations, the officer is advised to administer only the Horizontal Gaze Nystagmus (HGN) test.

This adaptation can be critical to avoid misinterpretation of the results and to uphold the test's objectivity.

However, despite the importance of this step, it is frequently overlooked or inadequately addressed in practice.

This oversight can lead to a fundamental flaw in the administration of the tests, potentially resulting in inaccurate conclusions about an individual's sobriety.

"The failure to properly medically qualify an individual before proceeding with the tests not only questions the validity of the results but also highlights a gap in the procedural rigor expected in such assessments."

- Bill Powers, DUI Defense Lawyer

It's imperative for officers to diligently follow such protocols, ensuring that each test administered is appropriate and fair, taking into account the individual's physical condition and capabilities.

In the administration of field sobriety tests, the condition of the surface where the tests are conducted is important.

Tests should be carried out on a surface that is not only smooth and flat but also dry and hard.

While it is not necessary for the surface to be perfectly smooth and level, roadside conditions should not negatively affect the individual's performance during the tests.

When sobriety tests involving balance are conducted in areas where the ground is sloped or graded, careful attention must be paid to the orientation of the individual being tested.

It is preferable for the person to be positioned facing uphill or downhill, aligning with the slope gradient.

Conducting the tests with the individual standing sideways on a slope can unfairly increase the difficulty of the tests.

Completely sober individuals might find it challenging to maintain balance under such conditions, leading to potentially misleading results.

Ensuring the surface's appropriateness and the individual's positioning can be critical to administering field sobriety tests accurately and fairly.

In the context of field sobriety tests, the type of footwear worn by the individual being tested can play a significant role.

Certain footwear, such as flip-flops, sandals, or shoes with heels exceeding two inches, can impede the ability to perform tests effectively.

While certain types of shoes may be comfortable for everyday wear and allow for effortless walking, they can pose challenges during specific activities required in sobriety tests, like walking heel-to-toe or balancing on one foot.

Acknowledging this, it's a good idea to permit individuals to remove such footwear before undertaking the tests.

This allowance, however, introduces new variables that should be considered.

For instance, the condition of the testing surface becomes even more critical. If the ground is cold, excessively hot, or wet, these factors could negatively impact the person's ability to perform the tests barefoot or in socks.

Additionally, the presence of debris on the surface can pose a risk, as stepping on something sharp or uncomfortable could cause pain or distraction, adversely affecting the test performance.

These nuances underscore the complexity of administering field sobriety tests.

Officers conducting tests need to be acutely aware of external factors.

"An officer conducting a DWI investigation is not just observing and evaluating the performance on the tests; they should also make reasonable efforts to ensure that the testing conditions are as controlled and neutral as possible."

- Bill Powers, DUI Defense Attorney

The goal is to eliminate external influences that could skew the results.

This level of scrutiny is essential for maintaining the integrity of the test, ensuring the results accurately reflect the individual's sobriety level, rather than their ability to perform under suboptimal conditions.

Thus, the officer's assessment should encompass not only the individual's performance but also the environment in which the tests are conducted, ensuring a fair and accurate evaluation.

In the administration of the Walk and Turn test, a key component of field sobriety assessments, the procedural requirements are quite important.

Initially, the officer instructs the individual to assume the Instructional Position, which involves standing with the right foot directly in front of the left, heels and toes aligned, while keeping arms at the sides.

This stance is a key aspect of the Walk and Turn sobriety test.

The officer then verifies the individual's comprehension of the instructions, seeking a verbal affirmation of understanding, and themselves demonstrates the Instructional Position position.

During the Instructional Position part of testing, the officer's focus is on two primary indicators:

• Whether the individual begins before the command is given, indicating starting too soon
• The ability to maintain balance while receiving instructions, observing if the individual moves their feet from the designated heel-to-toe position

This tests the individual's ability to follow directions and maintain balance simultaneously. Those are two of the eight “clues” of the Walk & Turn sobriety test.

During the second phase of testing, the individual is instructed to walk nine heel-to-toe steps forward, execute a turn by pivoting on the lead foot and taking small steps, and then return with nine heel-to-toe steps.

The officer ordinarily demonstrates what is expected, showing at least three steps in each direction and the turn, to help ensure the instructions are clearly understood.

Throughout the test, the individual is required to count each step aloud, watch their feet, keep their arms at their sides, and continue without pause until completion.

In the Walking Phase, the officer looks for six specific clues:

• Stopping or pausing to balance
• Missing the heel-to-toe alignment by at least half an inch
• Stepping off the line
• Raising arms more than six inches for balance
• Taking an incorrect number of steps
• Executing an improper turn

Each of the referenced clues can be significant; the presence of two or more suggests a Blood Alcohol Concentration (BAC) of 0.08 grams/dL or higher with a 79% accuracy rate.

The officer's role is to observe and meticulously assess these clues, as they may serve as a basis for Probable Cause to Arrest and are relevant to a determination of guilt or innocence.

The One Leg Stand test, another standardized field sobriety test in North Carolina, begins with the officer guiding the individual into the Instructional Position.

This requires the individual to stand with feet side by side. Arms are to be kept at the sides, and the individual is instructed to remain in this position until further instructions are given.

The officer ensures the individual understands the initial instructions, seeking verbal confirmation of their understanding.

In this phase, unlike others, the officer is not looking for clues of impairment. **One would be remiss in failing to note that the officer is not required to ignore balance issues and other indicators of impairment that may exist separate and apart from testing protocols and designated clues.

The focus is primarily on preparing the individual for the test.

The next step involves the officer instructing the individual to raise one foot about six inches off the ground.

The requirements are specific:

• Focus gaze on the elevated foot
• Count aloud in a sequential manner
• Keep arms stationary at their sides, without raising them
• Keep both legs straight, and maintain the raised foot parallel to the ground

The officer not only articulates these instructions but also demonstrates them, reinforcing the expectations and once again confirming the individual's comprehension.

During the execution of the test, which is timed for thirty seconds, the officer carefully watches for four specific clues:

• Placing the raised foot down
• Exhibits noticeable swaying
• Raises one or both arms more than six inches for balance
• Resorts to hopping to maintain balance

The North Carolina DWI Quick Reference Guide provides a more thorough explanation and summary of the NHTSA Standardized Field Sobriety Tests.

Each of the stated clues is a potential indicator of impairment.

The identification of two or more such clues suggests the individual's Blood Alcohol Concentration (BAC) may be 0.08 grams/dL or higher, with a reliability of 83%.

However, the administration of the One Leg Stand, much like the Walk and Turn test, is subject to human error.

Officers may sometimes fail to provide proper instruction or demonstrate SFSTs. Moreover, the assessment involves a degree of officer discretion in determining whether a particular clue is present.

Such subjectivity can lead to inconsistencies among officers, even between those with similar experience and training, in how these tests are interpreted and applied.

In legal proceedings, the involvement of a DUI SFST expert can be helpful to DWI defense lawyers.

Independent experts can critically evaluate the adherence to the National Highway Traffic Safety Administration (NHTSA) guidelines in administering these tests.

Their analysis also can play a significant role in assessing the credibility and weight given to these tests in both pretrial motions and trials, helping ensure that the nuances of the testing procedure are appropriately considered in the broader context of the case.

In North Carolina, the terms DUI (Driving Under the Influence) and DWI (Driving While Impaired) are often used interchangeably by the general public.

North Carolina General Statute § 20-138.1 refers to the offense as impaired driving.

To be clear, the NC DWI laws encompass a broad range of impairment that may go well beyond just alcohol, including the influence of prescription medications, illegal drugs, and even over-the-counter remedies.

This distinction can be crucial to DWI defense lawyers, relative to tailoring a defense strategy, because it expands the scope of what constitutes an offense under the impaired driving laws in North Carolina.

"The specific acronyms used – DUI or DWI – are less important than the underlying legal concepts they represent, which is operating a vehicle while impaired due to any number and/or combination of ‘impairing substances’."

- Bill Powers, Impaired Driving Defense Lawyer

It's important to note that impaired driving is not synonymous with drunk driving; while all drunk driving is illegal, not everyone charged under NCGS §20-138.1 (the NC DWI law) is necessarily drunk.

The law covers forms of impairment that affect a person's ability to drive safely, regardless of the substance causing the impairment. The definition of impairment can be somewhat expansive.

DUI defense lawyers may refer to impairment as noticeable or “appreciable” changes to mental or physical faculties.

Therefore, someone could be charged with a DWI for driving under the influence of substances that don't necessarily make them "drunk" in the traditional sense.

This inclusive definition under NC DWI laws underscores the state's commitment to road safety by addressing all forms of impaired driving.

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• Hard Truths About DWI Charges in North Carolina
• Over the Limit Under Arrest
• A Closer Look at State v. Cobb and DWI Checkpoints in North Carolina
• Comprehensive Guide to DWI Defense in North Carolina: Protecting Your Rights and Future