If law enforcement pulls you over on suspicion of being under the influence of alcohol, a controlled substance, another intoxicating substance, or a combination of these, the officer may ask you to consent to taking one or more standardized field sobriety tests (SFSTs). SFSTs are designed to see if you act intoxicated.
While they are not conclusive proof of intoxication, they can be used as probable cause to make an arrest for operating while intoxicated (OWI) or operating while visibly impaired (OWVI), Michigan’s two drunk driving charges. Once arrested, you will be chemically tested to determine your blood alcohol content (BAC). If your BAC is 0.08 is higher, you can be charged with an OWI. The state also has a provision for a high BAC offense, if your BAC tests at 0.17 or above.
The penalties for OWI and OWVIs are, frankly, designed to discourage any use of alcohol or controlled substances while driving. As a result, they are significant: jail time, fines, driver’s license suspension, and community service may all be required. The penalties for a high BAC offense are more severe than those for a standard OWI. If you are arrested for a second or other repeated OWI offense, the penalties rise accordingly.
Because the SFSTs are at the start of a process with the potential to cost you heavily in penalties, it’s important to be informed about what they are, any penalties for refusing them, your rights in the process, and possible defenses if you’ve been charged.
What is Involved in a SFST?
There are several different SFSTs. All of them were originally developed by the National Highway Traffic Safety Administration.
Horizontal Gaze Nystagmus Testing
Horizontal gaze nystagmus (HGN) refers to the involuntary eyeball jerking that normally occurs when anyone looks to the side. When someone is alcohol impaired, however, HGN can be very exaggerated and they often can’t visually follow a moving object easily.
The law enforcement officer conducting a HGN test follows the eyes of someone watching a pen or other object move slowly. They should be trained not to look for just one example of impairment, but at least three.
Walk and Turn Testing
It can be difficult for intoxicated people to walk in a straight line and turn. In a walk-and-turn test, the person’s ability to do that is examined. Their ability to listen to, comprehend, and follow simple instructions is also a subject of the test. The test includes instructions to, for example, take a certain number of steps in a straight line.
Law enforcement looks for specific signs of intoxication, including whether the person can keep their balance while listening to instructions, whether they need to stop or use their arms to keep their balance, whether they lose their balance while turning to retrace their steps in the opposite direction, and whether they take the number of steps they were asked to.
One Leg Stand Testing
People who are intoxicated, because their balance, coordination, and concentration are often affected, may find it difficult to stand on one leg. The one-leg stand test asks the person to stand on one foot while keeping the other foot roughly six inches off the ground. They are asked to do thousand counts (saying “one thousand one, one thousand two,” and so on) for 30 seconds while standing this way.
Law enforcement will look at several factors during the test, including whether the person sways, needs to use their arms for balance, needs to hop to remain standing, or puts their foot on the ground.
Officers may also ask for other types of FSTs, such as reciting the alphabet backwards.
Issues With the Tests
Unfortunately, the elements law enforcement officers are trained to see as signs of intoxication are not necessarily always caused by intoxication. People who have difficulty standing, for example, might have a number of medical conditions, including arthritis, artificial limbs, balance problems caused by inner ear issues, and more. Neurological conditions can cause eye impairments resembling HGN. Certain medications can also cause HGN issues, balance problems, and even difficulty concentrating on counting.
In addition, law enforcement officers are specifically trained on these tests. But an officer may lack experience, may not have administered the tests in a long while, or may simply not perform them correctly. The conclusions can be incorrect if any of these factors are present.
As a result, a SFST could put you on the road to a serious OWI charge with life-altering consequences, merely because of a medical condition or a pharmaceutical treatment prescribed by your doctor.
Can I Refuse a SFST?
The bottom line on SFSTs in Michigan is simple. If law enforcement asks you to take one, you can refuse. Consent to these tests is not required by law. There is no “implied consent” to SFSTs. There are no penalties of any kind for refusing them.
Doing poorly on the tests or even failing them can be caused by factors other than drinking or drugging. Because of this, agreeing to them may mean that you open yourself to a charge and arrest you in no way deserve. Once you are charged and arrested, and authorities have what they believe to be evidence, you will have to mount a vigorous defense to be found innocent.
Your refusal should be polite and respectful to the law enforcement officer(s). Never argue with officers who are questioning you or have pulled you over.
What About Other Roadside Tests?
Preliminary Breath Test
Law enforcement can also ask you to take other roadside tests if they believe you are driving while impaired by alcohol or other substances.
It’s important to know that, unlike SFSTs, there are penalties for refusing other types of tests.
One type of roadside test is the preliminary breath test (PBT). You can refuse this, but a refusal carries a charge of a civil infraction and a fine of as much as $150. If you are under 21 years of age, two points will likely be put on your driving record in addition to the civil infraction charge.
You may also be asked to take a breathalyzer or other chemical test. Under Michigan law, all drivers have given implied consent to having their breath, blood, or urine tested if officers suspect you are under the influence of alcohol or other intoxicants.
Refusing to take a chemical test is a violation of the implied consent law.
There are penalties for refusal, including a license suspension of one year and six points on your driving record.
The only exception is if you are a diabetic or use anticoagulants, which can affect the test results. If you refuse on these grounds, you may be asked to provide proof.
What if I Failed a SFST?
If you were charged and arrested on the basis of a failed SFST, it’s prudent to call an experienced Michigan field sobriety tests lawyer. There are a number of potential defenses, depending on the circumstances and your situation, including medical reasons and improper law enforcement conduct.
Even if you were in fact driving under the influence of intoxicating substances, an experienced Michigan OWI lawyer can often mount a vigorous defense, negotiate for leniency, and argue for the minimal sentence and penalties possible. Contact Michigan Defense Law to learn more about how our criminal lawyers can help with your defense.