Failure to Properly Administer Roadside Sobriety Tests

By Andrew Mishlove on July 16, 2019


Police officer conducting field sobriety testDrivers in Wisconsin who have been charged with drunk driving should speak with an OWI/DUI lawyer about their legal options. If law enforcement did not follow proper procedure during the traffic stop, sobriety test, and arrest, you may be able to have your charges dropped. The team at Mishlove & Stuckert, LLC believes that the system has to work fairly for everyone if it is to work at all.

With this in mind, our team would like to consider issues with the field sobriety test. Specifically, we want to consider what happens when a police officer fails to conduct the field sobriety test properly and why this is an important issue.

About Field Sobriety Tests

A field sobriety test is performed by a law enforcement officer during a traffic stop in order to assess if a driver is intoxicated. Typically, the field sobriety test precedes a breathalyzer test, which will measure any traces of alcohol on a driver’s breath to estimated blood alcohol concentration (BAC).

Common Tasks in a Field Sobriety Test

The National Highway Traffic and Safety Administration (NHTSA) has endorsed the Standardized Field Sobriety Test (SFST). The SFST consists of three activities to help assess a driver’s sobriety or intoxication:

  • Horizontal Gaze Nystagmus - This test measures the movement of the eyes as they track an object moving to the side. The eye involuntarily jerks as a person looks off to the side, but this jerking movement is exaggerated when a person is drunk.
  • Walk and Turn - This test involves a person taking nine or so steps in a straight line, turning, and taking the same number of steps back to the starting position.
  • One-Leg Stand - This test involves a person standing on one leg for a set amount of time in order to assess balance.

There are other non-standard field sobriety test activities that may be used, such as touching one’s nose, reciting the alphabet, or counting how many fingers an officer is holding up.

Issues with Administering the Field Sobriety Test

While administering the field sobriety test, an officer must do so in a manner that is not threatening. If a law enforcement officer takes an aggressive tone or intimidates the person taking the test, this can result in failure of even simple tasks. Our Wisconsin attorneys will note this in your case and can build some of your defense around you being frightened, stressed, agitated, or anxious because of the actions and demeanor of the officer.

Officers Failing to Follow NHTSA Guidelines

While field sobriety tests can allow for some non-standard tests to be performed, an officer failing to perform any of the standardized or common tests could be an issue. If you were asked to perform extremely difficult tasks, such as reciting the alphabet backwards, you may have been tricked into failing the field sobriety test and forced into taking a breathalyzer.

The Unscientific Nature of Roadside Testing

Ultimately, field sobriety tests are not scientific or objective measures of sobriety. If an officer uses the field sobriety test alone as proof of a driver’s intoxication, that is unacceptable. There are standards and protocols that must be followed to make sure the system is fair for everyone and not just for a select few.

Speak with a Skilled Drunk Driving Defense Lawyer

If you live in Wisconsin and would like more information about your legal options when facing a drunk driving charge, be sure to contact our team of DUI/OWI attorneys. The team at Mishlove & Stuckert, LLC is here to help. You can reach us in Milwaukee at (414) 332-3499 and in Waukesha at (262) 336-8140.

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