The document provides guidance on Florida field sobriety tests that individuals may encounter during a DUI investigation, outlining the importance of these exercises and their implications for potential DUI convictions. It details five specific tests—walk-and-turn, horizontal gaze nystagmus, one-leg stand, rhomberg balance, and finger-to-nose—with instructions on how to perform them correctly and what the officers are looking for. The text emphasizes the strategic considerations for individuals who are asked to undergo these tests and the potential impacts on their legal defense.

1. Florida Field
Sobriety Tests
During a DUI investigation, you may be asked to perform
a series of field sobriety exercises. This guide will help you
know what to expect and be prepared.

2. Table of Contents
Avoid a DUI conviction 3........................................................
The Exercises 5.........................................................................
Walk and Turn 7........................................................................
Horizontal Gaze Nystagmus 9..................................................
One-leg Stand 11......................................................................
Rhomberg Balance 13..............................................................
Finger-to-Nose 15.....................................................................
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3. Avoid a DUI conviction
A DUI conviction carries a stigma that can have lasting impacts
on your personal & professional lives.
There are some things you can at
least anticipate and prepare for
should you find yourself in the
unfortunate position of being
investigated for DUI. During
almost every stop that involves a
DUI investigation, the suspect will
be asked to perform a series of
field sobriety tests.
The simple truth is that once you get behind the wheel
of a car and drive, or 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.
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.
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4. Should I take the Field Sobriety Tests?
Generally, yes, you should take the field sobriety tests if the police request it. Some
attorneys will advise otherwise, but here is my reasoning based on my extensive
experience in defending DUI cases. If your case goes all the way to a jury trial, the
results of the tests will almost always look better to a jury than a refusal to perform
the tests.
I know how to highlight the good in your test performance and downplay anything
questionable. It’s not hard to frame a police officer’s expectations, or the exercises
themselves, as unreasonable. That puts a reasonable doubt into jurors’ minds.
If you are then arrested after performing the sobriety tests, we can use that in your
defense as well. That’s because if you follow my other advice, you will then refuse any
breath, blood, or urine test requested. This, of course, could look suspicious to a jury.
But if you submitted to the FSEs, I can use that to reason with jurors that you had
jumped through hoops and cooperated with the officer, only to be arrested. It’s no
wonder you then refused a breath test.
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5. START
The Exercises
Let’s take a look at the exercises and how to properly perform
them. Even a sober person can be tripped up, so knowing what to
expect can go a long way to keeping you out of trouble.
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 attention,
multi-task, use memory recall skills, and perform abnormal physical tasks. These tests
are crucial to any DUI investigation and prosecution. 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.
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6. The Police Will Ask Questions Quickly
Do you think police officers are so fair and objective that they will 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. Do you 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
demonstration as to what he or she is looking for. So use the information below to
increase your level of awareness now.
Before you do anything, listen and wait to begin! This
applies to all five field sobriety tests equally. Make sure
that you do not start performing the test until you are
specifically instructed to do so. The police officer will
likely be rattling off instructions while simultaneously
demonstrating how they expect to see it done.
Your ability to follow directions is a key part of the test!
It’s human nature to want to immediately mimic what you see. 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.
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7. 01
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 the starting position,
without losing your balance or stepping out of that
position, the entire time the officer is giving you
instructions and demonstrating.
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8. 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.
The walk and turn is the most commonly administered
DUI field sobriety exercise.
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.
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9. 02
Horizontal Gaze Nystagmus
The HGN test is the one you commonly see with officers asking
people to follow an object with their eyes.
Supposedly, you cannot control whether your eye will
exhibit nystagmus, so don’t stress over this too much.
It’s supposed to be involuntary.
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.”
Officers describe that jerking as a windshield wiper across a dry or dirty windshield
versus a clean, wet windshield where they glide smoothly.
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10. 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 say during trial that seeing HGN prior to 45 degrees
when making side-to-side passes 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 Miami know how to effectively
challenge HGN and, quite often, keep it excluded from
trial. That’s because in Florida, this is the only field
sobriety test that courts say requires “expert testimony”
during trial.
This aspect of the law 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.
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11. 03
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 to 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.
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12. 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. 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.
If you have a medical condition that prevents you from
preforming the tests, speak up. The officer should note
that on the test report.
Officers will try to hang their hat at trial on the excuse of, “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 the test regardless of a medical condition, the DUI officer
should note that on the test report.
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13. 04
Rhomberg Balance
This is 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
time is up, bring your head back forward, open your eyes, and say stop.
It always helps to know what police are looking for
before the test. The better your performance, the
better chance of beating your case.
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14. 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 stop watch. 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 worry if
it’s not. But when it is, I 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.The walk
and turn is the most commonly administered DUI field sobriety exercise.
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15. 05
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.
The officer will tell you which arm to use during the
exercise. There is no pattern, so listen carefully to the
instruction before bringing the tip of your finger to your
nose. An officer may try to trip you up by alternating
arms unevenly.
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16. 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.
305-938-9939
www.redavidlaw.com
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