In most DUI or DUAC cases, Field Sobriety Testing (FST) is the primary method a police officer uses to establish probable cause. Most officers use the three (3) “standardized” tests proscribed by the National Highway Traffic Safety Administration (NHTSA).  To administer these FST’s, the officers are provided extensive training. However, more often than not, the officers don’t follow their training and they deviate from NHTSA standards in the administration of these tests.

Notably, the officers’ training manual expressly states that “validation

[of the FST’s] applies only when the tests are administered in the prescribed standardized manner.”  The manual further states that “if any one of the standard field sobriety test elements is changed, the validity is compromised.”  Still, the officers often change the elements and deviate from the prescribed standardized manner, and nonetheless, they still arrest drivers investigated for DUI based upon the results of these tests.

Horizontal Gaze Nystagmus Test (HGN)

For example, the Horizontal Gaze Nystagmus (“HGN”) test, known by some as the “pen test” requires the officer to move a pen or other object back and forth across the suspect’s line of sight in a particular manner.  The officer then looks for an involuntary movement of the eye called nystagmus.  According to NHTSA, nystagmus is an indicator that a person may be impaired.  The HGN test requires the officer to move the pen at an approximate speed.  However, the officers regular move the pen at a faster rate than provided in their training.  This deviation by the officer, among others, allows DUI defense attorney’s to challenge this test in court.

Walk-and-Turn Test (WAT)

The next test is called the Walk-and-Turn (“WAT”).  During this test, the officer gives a series of instructions to the suspect as to how to perform the test, which includes walking 9 steps in one direction, heel-to-toe, making a precise type of turn, and walking 9 steps back in the same manner.  These instructions are numerous and a lot to take in, even for drivers who are completely sober.  In addition, the test requires the suspect to engage in non-natural body movements in that the human skeleton is not designed to walk with one foot in front of the other.  Officers are encouraged to use actual lines, such as painted lines in a parking lot, when possible, although many officer ignore this suggestion.  Notably, some of the clues officers look for when grading a suspect’s performance include the suspect’s failure to follow all of the instructions with exact precision.  Ironically, the officers do not follow the instructions from their training, despite being formally trained and despite having administered these tests dozens, if not hundreds, of times.  The officers do not give the suspect credit for slight mishaps, despite the suspect being extremely nervous and hearing a series of confusing instructions quickly prior to the test.  Also, NHTSA standards require the officer to “limit [his] movement which may distract the suspect during the test.”  Officers regularly ignore this instruction and walk beside the suspect, in the suspect’s periphery.

One-Leg Stand (OLS)

The third “standardized” test is the One-Leg Stand (“OLS”).  During this test, the suspect is required to raise one foot off the ground, approximately 6 inches, keeping the raised foot parallel to the ground.  The suspect must then count, “one one-thousand, two one-thousand” and so on until the officer tells him to stop.  Little does the suspect know that the officer is actually looking to see if the suspect can hold his foot up for thirty whole seconds.  If the suspect knew of the thirty-second requirement, the suspect may be able to prepare his balance better or may wish to refuse the test altogether.  On top of that, police officers often deviate from the protocol and d not give the suspect all of the benefits to which the suspect is entitled.  For example, sometimes the police do not advise the suspect to “keep his feet together,” which could actually make the test a little easier.

Admissibility of Improperly Conducted Tests

South Carolina’s appellate courts have not yet ruled on the admissibility of field sobriety tests when they are not administered in accordance with NHTSA standards.  Without guidance, some lower courts have excluded the field sobriety tests from evidence altogether.  Most others, however, have allowed the evidence to be seen by the jury but allow the DUI defense lawyer to argue to the jurors about the officer’s deviations.  Unfortunately, in this scenario, the damage is already done.  A lot of jurors will have seen the suspect step off the line, or put his foot down, or not make the turn exactly like the officer wanted, and these jurors will give the officer the benefit of the doubt that he was correct in arresting the suspect.

In 2000, the Ohio Supreme Court issued a good opinion in State v. Homan.  Specifically, the court found that for field sobriety tests to be admissible as evidence, the officer must have “strictly complied” with his NHTSA training protocol.  The Ohio legislature essentially modified this opinion by changing the law to require that “substantial compliance” is required.  Either way, Ohio has taken a step that South Carolina and every other state should follow – not allowing scientific evidence into a trial when law enforcement did not follow the science.  As it stands now in South Carolina, good DUI defense lawyers will continue to go through the field sobriety tests with a fine-toothed comb and challenge the officers to administer their tests correctly.

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