Written by attorney Luke Joseph Nichols

Your Right to Remain Silent in Virginia and Field Sobriety Tests: DUI law

In determining whether a driver is intoxicated, police officers use a variety of clues, tests, and machines. However, the most effective tools they use are their mouths. Officers never ask casual questions. When officers approach you, everything they say is calculated to get you to provide them with evidence against you, and they are good at what they do.

Police will ask several kinds of questions. “Have you have had anything to drink?" “How much you have had to drink?" “When did you have your last drink?" “Where did you drink?" If nothing else, they want you to talk to them so that they can tell whether you are slurring your speech. You do not have to answer these questions. You should simply hand them your ID, insurance, and registration. Do not answer any questions.

During a traffic stop, an officer may or may not have the right to order you to do any number of things including asking you to step out of your car or searching you and your car. However, even if an officer does not have the legal right to do something, the officer can always ask and get permission.

Legally, it is a fine line between when an officer is ordering you and when they are asking you to do something. If you ever have any doubts about whether you are required to obey police officers, clearly and politely ask them whether they are ordering you.

If they are not ordering you to do something, you can politely decline. If they are ordering you, politely obey the order and hire a good attorney. Any evidence found by violating a driver’s rights is not admissible in court.

Police officers look for erratic driving, empty or open beer bottles, glassy or blood shot eyes, slurred speech, or loss of balance. When they see any combination of these things, they may decide to ask you to perform field sobriety tests (FST).

FSTs are a series of exercises or tests used to determine sobriety. Many of these tests are difficult and can easily be failed by a sober person. You are not required by law to submit to FST. The police cannot make you take them, but they can sometimes use your refusal as evidence of consciousness of guilt (Jones v. Commonwealth, 51 Va. App. 730, 2008). If a driver has any reason to be concerned about taking a FST, he should decline to do so.

The FSTs used by the police in Virginia vary between regions, jurisdictions, and individual officers. Often, officers use variations of the same test that may or may not be more complicated. Most of the tests examine two things: 1) driver coordination and 2) ability to follow instruction.

FSTs are meant to be difficult, and many sober people cannot pass them. Because these tests measure the ability to follow instructions, the tests begin as soon as the officer is speaking. Little errors like starting too soon are considered evidence of intoxication.

Some of the typical tests include:

  • walking heel-to-toe on a straight line, and then turning and walking back a specific number of steps;
  • standing on one leg without moving your arms and legs;
  • saying the alphabet, starting from a random letter and progressing forward or backward;
  • counting between two given numbers, either forward or backward;
  • touching your nose or touching your thumb and fingers in a specific order;
  • performing the Rhomberg Balance test (close eyes, tilt head back, and stand still for 30 seconds); and
  • executing the Horizontal Gaze Nystagmus (HGN).

Of course, performing the physical aspects of these tests gracefully is important, but the driver must also follow the instruction exactly. Often, the police officer is shouting over the noise of traffic, and the driver is trying to pay attention while under large amounts of stress.

Wind, rain, snow, temperature, lighting, headlights, gravel, uneven pavement, lightning, thunder, passengers, or even the police officer can distract the driver and cause him to fail.

A typical mistake on the heel-to-toe test includes pivoting when the officer says to take baby steps 180 degrees, or taking baby steps when the officer says to pivot. While performing the one leg stand, many drivers are instructed to hold their arms and their one leg in specific locations while they balance. Everything from moving your arms to hoping or lowering your foot can be used as evidence of intoxication.

If you have any concerns about you ability to take and pass these tests, do not be bullied into taking them. If you have a physical or mental condition that prevents you from performing well on these tests, do not take the any of the tests.

There is one FST that does not have anything to do with coordination and little to do with instructions: the HGN test. HGN is when a person’s eyes shake uncontrollably as that person looks to the extreme left or right. Most people exhibit a little bit of shaking when looking to the extreme left or right, but when the eye shakes at less extreme angles, it may be a symptom of intoxication.

Police officers will perform this test by asking the driver to follow a finger or a pen with his eyes as they wave it back and forth slowly. They will often shine their flashlight in your eyes while doing this in order to observe any tremors.

The HGN test requires that the officer detect tremors in the eyes when the eyeball is looking at a 45-degree angle or less. The officer also looks for a lack of “smoothness" as the eyes track back and forth. The driver will be utterly unaware of the whether or not the eye is shaking, and the shaking is uncontrollable.

HGN can be caused by preexisting medical conditions or onsite conditions, but few people are aware if they have HGN Therefore, they cannot inform the police if they have a preexisting condition. Because most people do not know whether or not they have a temporary or permanent HGN, drivers should not submit to the HGN test.

There is rarely anything to be gained by taking any FST. FSTs are voluntary; you do not have to take them and refusing to take an FST is weak evidence of guilt. When officers ask you to perform an FST, they have usually already decided that you are drunk and will likely arrest you no matter what you do. They are only trying to get more evidence so they can convict you. You will rarely ever convince a police officer that you are sober by performing well on a FST.

Additional resources provided by the author

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