If you are stopped for suspicion of DUI, it is vital that you know your rights when it comes to submitting to a breathalyzer test and performing the field sobriety exercises (“FSE’s”). The FSE’s you may be asked to perform are known as:
- Horizontal Gaze Nystagmus (HGN)
- One-leg stand
- Romberg Alphabet Test
You do not have to perform the FSE’s if pulled over by an officer. If you refuse the FSE’s, you will not have an automatic license suspension as you would if you refused the breathalyzer test.
If you refuse the FSE’s, the prosecutor may attempt to use your refusal to argue that you did so because you knew you were impaired.
Known as the “consciousness of guilt” argument, your defense attorney can combat this implication through several means, such as arguing that you had a documented medical issue that prevented you from successfully completing the FSE’s or another valid reason for refusing.
Should I perform FSE’s?
This is a question asked quite often. As an attorney who has handled hundreds of DUI cases, I have seen many videos of non-impaired people do poorly on the FSE’s. I have seen people who blew well under the legal limit “fail” these exercises based on an officer’s report.
Why is that?
While these tests are supposed to be designed to test your “normal faculties,” it begs the question: are these exercises really things you do routinely? Absolutely not.
Questions for Consideration
I have never walked through the produce section of the grocery store walking heel to toe for 9 consecutive steps on a straight line while counting out loud, pivoting using small steps with one foot still on the line, and proceeding to walk heel to toe back down the line while counting aloud.
How many times have you walked heel to toe during your everyday life? Probably never.
How many times have you stood on one foot, with your foot precisely six inches off the ground and hands by your side, counting aloud? Most likely never.
Have you ever found yourself waiting for a table at a restaurant standing with your feet together, eyes closed, head leaned slightly back trying to touch the tip of your nose with the tip of your index finger all while someone is telling you whether to use your right or left hand? Probably not.
It’s important to think about these scenarios, which sound quite ridiculous, to highlight that these are not everyday tasks, despite the FSE’s design to determine whether your “normal” faculties are impaired.
Different Definitions of “Normal”
Officers are trained on how to perform the FSE’s, yet they are allowed to ask you to perform these after very little, if any, instruction. Officers have worksheets to fill out and may mark you off for even the slightest of things.
Can an officer really say that using the tip of an index finger and not the middle of an index finger — a very minor difference — is a sign of impairment? Is someone impaired if they don’t walk heel to toe on steps 5 and 8 while performing this FSE on the side of the interstate with cars flying by? No.
The reality is these are not things we normally do.
Under Florida Statutes, normal faculties include, but are not limited to, “the ability to see, hear, walk, talk, judge distances, act in emergencies, and in general, normally perform the many mental and physical acts of everyday life.”
Yet, the FSE’s you may be asked to perform to determine whether you are arrested and charged with DUI are certainty not mental and physical acts of everyday life.
The decision to perform FSE’s is case and person specific. As such, it is important to keep the above in mind if you are ever stopped for suspicion of DUI.
Learning about your rights to avoid a stressful and costly legal situation is always beneficial. Thus, it is in your best interest to contact McNulty Parker Law, PLLC at (727) 610-8933 to discuss your DUI defense and legal strategy from a proven St. Petersburg DUI attorney.