One question I get a lot as a DUI lawyer is what to do if pulled over for DUI in Oregon? Most people want to know whether or not they should take the roadside tests and whether or not to take the breath test. In the post, I will address the roadside tests.
Roadside tests are often called standardized field sobriety tests or FSTs. These tests are designed by the National Highway Traffic Safety Administration (NHTSA). There are three parts the tests: the HGN, the walk and turn, and the one leg stand. Some arresting officers at a DUI stop throw in a few other tests as well. But those other tests are not standardized.
The first phase of the standardized test is the horizontal gaze nystagmus test or HGN. This is the test where the arresting officer passes a pen in front of the subject's eyes. The test is designed to look for a jerking of the eyes called nystagmus. In order to be valid, the office must follow a very precise protocol. Many officers cannot explain these protocols when questioned by an experienced DUI attorney.
Consuming alcohol does cause horizontal gaze nystagmus in most people. Because of that fact, police and prosecutors love to point to the HGN test as evidence that someone was drinking. What police and prosecutors often fail to mention is that there are many types of nystagmus. Simply observing eye jerking does not prove the source of that jerking.
Moreover, laboratory studies have found HGN in people with breath alcohol concentrations as low as .04. This level is half the presumptive limit in Oregon. Basically, the HGN is a worthless test that proves nothing more than that a person may have drank half the legal limit.
The second test in the FSTs is the walk and turn. In this test, someone is asked to walk heel-to-toe along a line. Often an office asked someone to just imagine a straight line if there isn't one on the ground already.
Most people who take this test think they are just being tested on whether or not they can walk heel to toe. The cop is really looking to see how well someone can follow complicated directions. It is considered failing if someone doesn't take the exact right number of steps, if they don't make a special type of turn, or if they don't bring their heels within an inch of their toes. This test is inherently unfair because people are never told what they are actually being tested on.
The last test is the one leg stand test. In this test the person is asked to stand on one foot for thirty seconds. Again, the cop never tells the person that he is actually looking for the way he stands, whether he looks at his foot, or how well he estimates 30 seconds.
None of these tests are fair. They are designed to fail. You should not take these test even if you have had nothing to drink. If you are asked to take these tests, you should politely refuse. If you are arrested, immediately ask to speak with a qualified DUI lawyer.
