Part 4: Know The Answers to The “Test” Before You Take It!
(This is Part 4 of the blog series, The “Other” DUI: Driving Under the Influence of Ignorance,” by top Hollywood DUI lawyer, Jordan Redavid).
If you’ve ever been had to take a test or quiz as a student in school then the feeling of being examined by an authority figure (i.e. teacher) should not be unfamiliar to you. But that doesn’t you were comfortable with it. After all, isn’t that why people are always encouraged to study prior to taking a test? To prepare for what they thought the teacher would be looking for. And doesn’t studying always alleviate some of the stress associated with taking a test, if nothing else (i.e. better results)?
So why do many Floridians refuse to study for a series of tests that could, if asked of them, determine whether or not they can drive in the future and, in some circumstances, keep their job? I’m talking, of course, about the tests that come with being investigated for DUI. Imagine if, without cheating, you could know exactly what questions the teacher would ask, and what answers they wanted to see on your exam before you ever sat down to take it? How comfortable would you be then?
While some things in a DUI investigation can’t be prepared for, most aspects can. The purpose of this blog post is to prepare those of you who, while no longer students, may very well be faced with an examination by another authority figure in your future—a police officer conducting a DUI investigation. What follows are some guidelines as to what, in my opinion, and from my experience in cross-examining, deposing, interviewing, and studying police officers who make DUI arrests, you need to know.
#1 – Reasonable Suspicion of DUI: The Trinity & Other Magic Words
To lawfully initiate a DUI investigation in Florida, a police officer only needs to have reasonable suspicion of DUI. That is not the same as “proof beyond a reasonable doubt,” which is the highest burden of proof in the world, and it is considerably less than “probable cause,” a very low standard to begin with (e.g. more likely than not). And while a “mere hunch” is not enough, you might be asking yourself: “In the context of DUI, what does it take for an officer to have reasonable suspicion?”
Florida courts have routinely found reasonable suspicion where there is evidence of a traffic infraction (i.e. speeding) plus three key observations (which most DUI lawyers refer to as “the trilogy”): (1) slurred speech; (2) odor of alcohol; and (3) red, watery, bloodshot eyes. I know what you’re thinking. “Jordan, when I drink a couple glasses of wine at dinner, I don’t slur my speech and my eyes are never affected.” Guess what? Even though you may be right, my experience as a top DUI lawyer in Hollywood tells me that once a police officer notices an odor of alcohol on a driver, he or she also conveniently notices the slurred speech and red, watery, bloodshot eyes.
Could this be because police officers know the “magic words” to put on a police report to have their investigation upheld when challenged in court? Maybe. Let’s just say that, while I’m not ready to label all DUI officers liars, I’m also not ready to say that every single driver in Hollywood, no matter their age, gender, weight, amount and frequency of alcoholic consumption, and a litany of other factors, exhibit precisely the same physical symptoms when they drink alcohol. As one of the top DUI lawyers in Hollywood, I have read hundreds, if not thousands, of police reports in DUI investigations. It’s a rare occurrence when one of them does not recite “the trilogy.”
When they don’t, there are usually other commonly-approved-of-by-the-courts observations. For example, slow, delayed responses to police orders (e.g. “License, insurance, and registration, please.”). Sometimes DUI police might be looking for weaving in or across lanes; straddling a traffic line; almost or actually causing an accident; wide turning radius; braking erratically; varying speeds; driving below the speed limit; failure to signal when turning; slow responses to traffic lights; following another vehicle too closely; having trouble rolling down window or putting car in gear; fumbling with or forgetting to provide documents upon request; difficulty exiting the vehicle; leaning on the vehicle for support; repeating questions or comments; or providing incorrect information or changing answers.
#2 – The Most Important Test (sorry, I mean “exercises”) in Your Life
The simple truth is that once you get behind the wheel of a car and drive (or, as discussed in earlier posts, are in actual physical control of a car), you have opened yourself up to the potential of being investigated for DUI. Don’t make the mistake of thinking that it can’t happen to you. In today’s society, a DUI conviction carries a stigma and can have lasting impacts on your personal and professional life. So here are some things we can at least anticipate and prepare for if you find yourself in the unfortunate position of being investigated for DUI.
During almost every single DUI investigation, the suspect will be asked to perform a series of field sobriety tests. (Note: Florida courts have rejected police officers and prosecutors characterizing these activities as “tests,” and prefer them to be called “exercises.” However, when you consider that one’s ability to perform to standards on them is a critical factor in determining whether or not the person will be arrested, they inherently feel as though they are pass/fail, and, to me at least, that’s a test.).
DUI police officers trained in investigating DUIs learn how to administer five field sobriety tests: (1) Walk-and-Turn; (2) HGN; (3) One-leg Stand; (4) Rhomberg Balance; and (5) Finger-to-Nose. These exercises, which were created and standardized by the National Highway Traffic Safety Association (“NHTSA”), call for one to divide their attention, multi-task, have incredible memory recall skills, and to perform abnormal physical tasks. These tests are so crucial to any DUI investigation (or obtaining a conviction at a later trial) that police officers spend dozens of hours being trained on how to administer them, during which they get ample opportunity to practice performing them. They are even provided with a single-page “cheat sheet” that has diagrams and fields of information to remind them what to look for when you’re performing.
Think police officers are so fair and objective that they show you that sheet of paper (the questions on the exam, if you will) so that you can see what they’re really looking for you to do? Nope. (That’s why I’m writing this post).
Think they will give you a few moments to practice performing these tasks that, in all likelihood, you’ve never seen or done before to ensure that when the test really counts you have a fair shot at passing? Nope.
All you will get is a series of rapid-fire instructions and the officer’s quasi-demonstration as to what he or she is looking for. So use the information in this post to increase your level of awareness now, before it’s the real deal.
(A) – Wait to Begin – One piece of advice that applies to all 5 field sobriety tests equally is to make sure that you do not begin performing the test until you are specifically instructed to do so. The police officer will likely be rattling off a dozen or so instructions, while simultaneously demonstrating how they expect to see it done. It’s human nature to want to mimic what you see or do as you’re instructed. But start too soon and that officer will count it against you, and later, remind the jury that you “couldn’t follow a simple instruction” to wait until told to begin, which is a sign of impairment.
(B) – Walk-and-Turn – You will first be asked to stand in the “starting position” during the instructional stage. This requires you to place one foot in front of the other, touching heel-to-toe, with your hands resting down by your sides. You will be expected to maintain this position, without losing your balance or stepping out of that position, the entire time the officer is giving you additional instructions and demonstrating. Move your front foot back to a natural standing position — even just to be comfortable while watching the officer demonstrate — and it will count against you; characterized as an inability to maintain balance or listen to instructions.
Next, you will be asked to walk on a straight line, placing one foot in front of the other, always touching heel-to-toe, for 9 steps out. Don’t raise your arms for balance; don’t step off the line; don’t create more than a 6” gap between heel-to-toe or you will be docked. After your 9th step, you will be expected to turn in a very specific manner. They want you to take a series of small pivot steps while keeping one foot down as the plant/pivot point. Even if you are so graceful as to do a super spin in one fell swoop and look like a gymnast, it will only count against you. Then, walk 9 steps back to where you started from—just as you did before (touching heel-to-toe, straight line, with hands down by your side). If you step off the line at any point, immediately correct yourself and keep going. If you miss heel-to-toe, correct yourself and keep going.
Sometimes it’s natural to want to stop the test when you feel like you messed up and restart. Most DUI cops will “let you” restart, but when you do, they later remind the jury that you had to try and perform the test 2 or 3 times. This is the most commonly administered DUI field sobriety test.
(C) – Horizontal Gaze Nystagmus (“HGN”) – The HGN test is the one you commonly see with officers asking people to follow an object with their eyes. What the officer is looking for are 3 clues that might be present in each eye: (i) whether your eye has nystagmus (a jerking movement); (ii) when the nystagmus first occurs; and (iii) whether you have distinct nystagmus at “maximum deviation.”
Now look, supposedly, you cannot control whether your eye will exhibit nystagmus, so don’t stress over this too much. It’s supposed to be involuntary. Officers describe that jerking as a windshield wiper across a dry or dirty windshield versus a clean, wet windshield where they glide smoothly.
Prior to performing HGN, the officer is supposed to ask you a series of questions. Why? They think that if they can ensure you don’t have corrective lenses; head trauma; or are taking any specific medications, if nystagmus is present, it correlates to impairment by alcohol. They may want to opine during the trial that seeing HGN prior to 45 degrees when making lateral (side-to-side) passes with the stimulus magically correlates to a 0.08 or higher. (I know, 45 degrees? How could they possibly know? They don’t use a protractor. They are trained to use other areas of the body (i.e. shoulder) as indicators, but most don’t even know that much).
The best DUI lawyers in Hollywood know how to effectively challenge HGN and, quite often, keep it excluded from the trial. That’s because in Florida this is the only field sobriety test that courts say requires “expert testimony” during a trial. That allows aggressive DUI lawyers to argue, before trial, to prevent the officer from being treated as an expert for that purpose, thereby preventing the jury from hearing about it. Even if a judge lets it in, an effective cross-examination can expose its flaws.
(D) One-leg Stand– Like the walk-and-turn, this test has an instructional and performance phase. Remember, don’t start before instructed! During the instructional stage, you will be told that, when instructed, stand on one leg, whichever you prefer, while raising the other leg in the air at least 6” off the ground; also, flex your foot, look down at that foot’s toes, and keep your hands at your side. Do this, sometimes while having to count out loud, for around 30 seconds or until the officer tells you to stop.
If you raise your hands more than 6” from your side (which, how on earth are cops measuring this anyway? So keep them pressed against your side in an abundance of caution) or put your foot down for balance, even if for a moment, just correct yourself and keep going. If you start hopping on your plant foot for balance, that, too, will count against you. So remain calm and relaxed–if possible. Try not to raise your leg so high that it creates a higher risk for losing your balance. The officer is looking for all of these things.
If you have a problem with a leg, foot, knee, ankle, back, or any other affliction that you think impacts your ability to perform, let the officer know before you begin. They try to hang their hat at trial on the “Well, I said he or she could use whichever foot they prefer, and they still couldn’t do it right.” What if you have a medical condition that prevents you from doing as instructed? Let them know. Even if you want to try to perform it afterward, that DUI officer should note that on the test report.
(E) Rhomberg Balance – Another test for balance and ability to recall specific instructions that also requires multi-tasking. During the instructional phase, you will be asked to stand with your feet together and place your hands down by your side. When told to begin, tilt your head back, close your eyes, and “estimate” the passage of 30 seconds (in your head!). When you think the time is up, bring your head back forward, open your eyes, and say stop.
The officer will again be looking for swaying, hopping, lost balance, but also things like forgetting to keep your eyes closed, counting out loud instead of in your head, or counting for way too long. Alcohol usually has the effect of delaying people’s responses. The officer will be watching his or her digital stopwatch. If you allowed 60-90 seconds to pass by before actually stopping, they will try to use that against you. Although they don’t tell you how to count (meaning, “1-2-3…” vs. “1 Mississippi-2 Mississippi- 3…”), I recommend having a method and sticking to it.
This test is not always administered. So don’t freak out if it’s not. But when it is, the best DUI lawyers in Hollywood know how to destroy it on cross-examination at trial. Still, it always helps if you know what they’re looking for now, before the test is for real. The better your performance, the better chance of beating your case.
(F) Finger-to-Nose– The last test usually administered is the finger-to-nose. You will be asked to close your eyes, with your hands out by your side, and, when prompted by a verbal order (e.g. “Left” or “Right”), use the appropriate hand’s index finger to touch the tip of your nose before bringing it back down to your side.
Here are a few key things to remember: First, keep your eyes closed the entire time. Second, you need to touch the “tip” of your index finger to the “tip” of your nose. If you do what people normally do, which is rest the pad of your index finger flush on the tip of your nose, you didn’t “do as instructed” and they will dock you for it. How silly is that? If you touch anywhere on your nose besides the tip of it, they will note that too. Third, don’t try to guess which hand the officer wants you to use. They will call it out for you. So calm down and listen. They may not always alternate evenly. Sometimes they get tricky and will do Left-Right-Left-Left to trip you up. Lastly, always remember to remove your finger after touching your nose and put it back down by your side.
If you take anything from this blog post, take this: many of the clues police are looking for during a DUI investigation, you simply cannot hide or prevent them from alleging their existence in a DUI Test Report. Whether that’s because they’re truly involuntary and your body produces them without control, or because police know what will help them in justifying an arrest, just know that you can’t control everything. Keep that in perspective.
However, what you should realize by now is that you can control certain things during the DUI investigation, and they may play a vital role in later resolving your criminal case favorably. Even the best DUI lawyer in Hollywood will tell you: the better the performances on field sobriety tests, the happier I am during the trial. performance on many of the field sobriety tests.
Again, for all intents and purposes, these “exercises” are really just tests, so treat them accordingly. They are the lynchpin in determining whether to arrest someone. But know this: rarely, if ever, are people not arrested after performing them. So don’t freak out too much—expect it, but do your best beforehand.
Would you curse out, be sarcastic, or otherwise be rude to your teacher the moment before he or she was grading your exam? Of course not, so, no matter what, try to act the same during a DUI investigation. What’s more, if, given the ammunition, the cops will use your bad attitude as a sign of impairment too.
Hopefully, you are never in the position to have to perform these tests. A DUI arrest is awfully stressful and can have major impacts on one’s life. But if you are, at least after reading this post you won’t be in the unfortunate position of hearing those instructions for the first time, while standing on the side of the road at night, with cars whizzing by, and a uniformed police officer with a gun on his or her side barks them at you only moments before you’re expected to perform them perfectly.
So please, while you may not want to practice them in your living room or at the bar before driving home, at least be aware as to what they expect of you. Remember: if you know the questions to the test before your teacher ever administers it, how much more comfortable will you feel? How much better might you perform?
This blog post was authored by top Hollywood DUI attorney, Jordan Redavid. It is not intended to be legal advice nor create an attorney-client relationship. However, if you or someone you care about has been arrested for DUI in Hollywood, Fort Lauderdale, or the South Florida area, call what some clients have called the best DUI lawyer in Florida. He is available 24/7 to give a FREE consultation. (954) 800-2155