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To be arrested for Driving Under the Influence in Florida, an officer must make an arrest decision that you were in actual physical control of a motor vehicle and impaired to the extent that your normal faculties were impaired. One tool that an officer may use to determine whether probable cause exists to arrests you is Field Sobriety Exercises (or FSE’s). Sometimes they are referred to as Field Sobriety Tests, but “Exercises” is often substituted and Motions in Limine are filed before a trial to exclude the use of terms like “pass” or “fail” as they can be misleading to a jury.
In 1995, the Florida Supreme Court in State v. Taylor, 648 So.2d 701 (Fla. 1995) found that Florida Statutes § 901.151(2) permits a law enforcement officer to stop a driver and request that the driver perform field sobriety tests based on a reasonable suspicion that the crime of driving while intoxicated is being committed. The purpose of the stop and investigation and request for FSE’s is to determine whether probable cause sufficient to make an arrest for DUI exists. See State v. Kliphouse, 771 So.2d 16, 29 (Fla. 4th DCA 2000)(“Probable Cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in [their] system.”
There are several FSE’s used, but the following three tests are the most common and will almost always be used by law enforcement when making a stop and investigating a possible DUI:
(1) The Horizontal Gaze Nystagmus Test
What is Nystagmus? Well, the term “nystagmus” refers to the uncontrollable or involuntary jerking or movement of the eye. Alcohol or impairment can cause nystagmus which can be visible at certain angles. This is the test where the officer holds an object out in front of you (usually a pen) and moves it side to side looking at your eyes. But nystagmus is not always the result of impairment or alcohol. Studies have shown nystagmus can be present with drivers experiencing fatigue, or by other substances like caffeine or nicotine.
The Officer Will Look For 3 Things During The HGN or Horizontal Gaze Nystagmus Test:
Lack of Smooth Pursuit in Left or Right Eye:
1. Officer asks you to remove your glasses if you are wearing any.
2. Officer asks you to keep your head still and follow the object only with your eyes.
3. Officer asks if you understand the instructions.
4. Officer positions the object (usually a pen) about 12-15 inches away from your nose, slightly above your eye-level:
5. Officer starts with the object at the left eye, and moves it to the right as far to the side as your eyes can go within an approximately 2 second window.
6. Officer determines if your eyes was able to pursue the object smoothly without nystagmus.
7. Officer moves object across your face back all the way to the left side as far as your eyes can go (also within about 2 seconds).
8. Officer determines if your eyes was able to pursue the object smoothly without nystagmus.
Distinct and Sustained Nystagmus at Maximum Deviation in Left or Right Eye:
1. Officer starts with the object at the left eye and moves it to the left until no white will be showing in the left corner of your eye (you are looking all the way to the left). This is called maximum deviation.
2. Officer will hold the object in this position for at least 4 seconds while observing your eye for “distinct and sustained nystagmus”.
3. Officer will repeat this procedure on the right side.
“Onset of Nystagmus Prior to 45 Degrees in Left or Right Eye”:
1. Move the object to the left at a speed of about four seconds until it reaches your left shoulder.
2. Officer will observe and check for any eye jerking or nystagmus. If officer sees any nystagmus, he will stop and verify that the jerking is continuing.
3. Officer will then move the object to the right at a speed of four seconds to your right shoulder and repeat the process.
Admissibility of HGN Test in Florida:
The HGN test may be admissible in court as evidence that you were impaired. But before the HGN test can be presented as evidence against you to a jury, the State must first lay the proper foundation and predicate. The Officer testifying about the HGN test must first testify about the reliability of the HGN test and their qualifications to conduct the test, such as training, education and experience. But keep in mind, the testimony relating to the reliability of the HGN test cannot include any testimony about how accurately HGN correlates to impairment above the legal limit of .08%. See State v. Meador, 674 So.2d 826, 836 (Fla. 4th DCA 1996)(“The HGN test results should not be admitted as lay observations of intoxication because HGN testing constitutes scientific evidence. Thus, although the evidence may be relevant, the danger of unfair prejudice, confusion of issues, or misleading the jury requires the exclusion of the HGN test evidence unless the traditional predicates of scientific evidence are satisfied. If the state cannot present evidence to demonstrate compliance with [the predicates for the introduction of scientific evidence], then the HGN test evidence should be excluded.”).
(2) The One-Leg Stand:
The One-Leg Stand test should properly be administered on a dry, level, non-slippery, well-lit and hard surface. The driver also needs to be in good physical condition to perform the test. If you recently had ankle or leg surgery, for example, you would not be a good candidate for the one-leg stand test. The test is usually conducted as follows:
1. Officer instructs you to stand with your feet together and arms down to your side, and to not perform the test until instructed to do so. You will be asked if you understand the directions.
2. At the Officer’s direction, you will have to raise one leg about 6 inches off of the ground and keep your leg raised parallel to the ground. You will have to keep both legs straight and both arms at your side. While holding that position, you will have to count each second until instructed to stop (1,001 to 1,030).
The Officer will observe you for about 30 seconds looking for clues such as hopping, raising arms to gather balance, putting foot down, swaying or a complete inability to perform the test at all. If two or more of these behaviors are observed, the officer could determine sufficient probable cause to make an arrest for DUI.
(3) Walk and Turn Test:
The Walk and Turn test should properly be administered on a dry, level, non-slippery, well-lit and hard surface. The driver also needs to be in good physical condition to perform the test. If you recently had ankle or leg surgery, for example, you would not be a good candidate for the one-leg stand test. The test is usually conducted as follows:
1. Officer will pick a real or imaginary line and instruct you to place your left foot on the line, and then to place your right foot ahead of your left foot, hell to toe, on the line. The officer will usually demonstrate.
2. Officer will then instruct you to place your arms down at your sides and maintain the position until the instructions have been completed, and that you should not begin the test until instructed to do so.
3. Officer will instruct you to, on his mark, take 9 heel to toe steps on the real or imaginary line, turn, and take 9 heel to toe steps back. While turning you must keep your front foot on the line and turn. You must also keep your arms at your sides and watch your feet at all times during the test while counting your steps out loud.
Some clues of impairment the officer will look for are if you cannot keep your balance while listening to the instructions (if you move from the heel to toe position off of the line), if you start before the instructions are finished, if you stop or pause while walking, not touching your feet heel to toe, stepping off of the line, raising arms from your side for balance, improperly turning, taking the incorrect number of steps (9) in either direction.
Field Sobriety Exercises can often make your arrest for DUI worse than it is. Officers tend to write their reports up the same way every time and may include the same “buzz words” which may make your report look worse. Don’t panic, and call us to sit down and review your police report with you for free to determine the best plan of attack to fight your DUI arrest!
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