If a New York State law enforcement officer stops you on suspicion of DWI, he or she may ask you to take a field sobriety test.
As during the rest of your interactions with police officers, remain polite. However, you do have the right to refuse to take these tests or to answer questions such as where you are coming from and whether you had anything to drink. You have the right to refuse a field sobriety test in New York, though this refusal is admissible in court. The tests can be subjective and people can fail for many reasons besides intoxication. For these reasons, if you did perform and fail the test, you may have grounds to challenge the results.
The Standardized Field Sobriety Test
Most often, police officers use the Standardized Field Sobriety Test, which the National Highway Traffic Safety Administration developed in the 1970s. To qualify for administering the SFST, police officers must complete a required training course. There are three parts to the test.
Horizontal Gaze Nystagmus
The horizontal gaze nystagmus assesses whether nystagmus – an involuntary eye motion – is present at an increased level that can indicate alcohol consumption. Police officers ask the driver to follow a moving object with his or her eyes. The officer moves a small object, such as a pen, at various speeds and in various directions. Only the officer administering the test can observe the driver’s eye motion.
Walk and Turn
The walk and turn test involves walking in a straight line, putting one foot in front of the other, heel to toe. The driver must keep his or her arms at the side and count the steps aloud. Lack of balance, miscounting the steps or failing to follow any of the detailed instructions all count against the driver.
One Leg Stand
Finally, the one-leg stand test requires the driver to stand with one foot up until the police officer says to put it down; generally, this is a period of 30 seconds, but the officer will typically not state this.
Failing the SFST does not have to mean a conviction
It is not hard to think of reasons other than intoxication why a person could fail one or all of these tests. Performance is also judged based on following instructions, which may be hard to hear on the side of a busy road. Various medical conditions, uncomfortable shoes and a high level of nervousness are all common reasons people fail the SFST. As a DWI conviction can have serious consequences, fighting these allegations may be necessary.
James L. Riotto is an accomplished criminal defense attorney serving clients in New York. With an extensive background in law enforcement and criminal prosecution, his approach to each case is unique and informed by years of experience with the New York criminal justice system. As a graduate from Albany Law School and before going on to start his own practice, James worked at the Albany County District Attorney's Office, where he helped prosecute many DWI offenses. His inside knowledge of the tactics used to gain convictions provides him with a particular advantage when defending against DUI and other criminal charges.
About Attorney Adam Staier has spent the last seven years practicing criminal defense law throughout upstate New York and the Capital Region. He began his legal career through internships in civil law, indigent legal representation and federal energy law regulation. Finding a passion in criminal law, Mr. Staier held internships handling both prosecution and defense…