DUI Finger to Nose Test

May 3, 2016

Preliminary Alcohol Screening Test (PAS)

 

Los Angeles DUI Attorney Explains Field Sobriety Test

Often, a DUI investigation will involve an attempt by the police to administer some field sobriety tests.  The field sobriety tests (FST) are a series of tests used by law enforcement to determine if a person is impaired.  In California, field sobriety tests are voluntary and you have a right to refuse to submit to them.  Do not confuse field sobriety tests with a mandatory post-arrest, evidentiary chemical test which can be either breath or blood.  California has implied consent statute found in CVC 23612 that requires all drivers to submit to a chemical test after a DUI arrest.  Failure to do so can increase punishment for anyone arrested for a DUI in Los Angeles.  For example, Los Angeles DUI prosecutors can charge a special allegation requiring 48 hours in jail when the person refuses to submit to a chemical test after a DUI arrest.  California DMV consequence for a refusal to submit to a chemical test are a lot harsher and even on a first offense will result in one year license suspensionLos Angeles DUI lawyer specialize in difficult DUI cases and represented numerous client with great results in refusal DUI prosecutions.

Because the field sobriety tests are voluntary, it is the opinion of Los Angeles DUI attorney that you need to politely decline to submit to them.  The tests are not testimonial in nature and therefore do not fall within the protection of privilege against self-incrimination of the 5th amendment to the U.S. Constitution.  The test are also very subjective and despite you thinking that you did well, the police officer is often quick to determine that you did not perform as explained and demonstrated.

There are two types of field sobriety tests: standardized and not-standardized.  If a test is standardized, it was verified by a scientific study and often validated by subsequent studies.  The standardized tests have a percentage of “false positive”, meaning, a person who is not over the legal limit but the investigator decided that he was.  A non-standardized test does not have it and because of that, even a slight deviation from “perfect” performance can cause a “fail”.

Los Angeles DUI Attorney Explains DUI Finger to Nose Test.

DUI Finger to Nose Test is not a standardized test and there are no scientifically accepted studies that show a correlation between failing to do the DUI Finger to Nose Test as instructed and a level of intoxication or impairment.  If a DUI investigator, such as a CHP officer or a DUI LAPD officer, asks you to do a finger-to-nose test, he is probably not trained well because the National Highway Traffic Safety Administration (“NHTSA”) did not recommend this test for sobriety testing.  NHTSA recommends only three tests, a Horizontal Gaze Nystagmus (“HGN”),  a Walk-And-Turn test and a One-Leg-Stand test.  Various manuals put accuracy of these tests between 68% and 85% accuracy.  Many states and police agencies considered DUI Finger to Nose Test but decided it was not accurate enough for police investigations.

DUI Finger to Nose Test is as good as “picking-up-coins” test (favored by some police departments years ago) and holding the ankle test.  Even standardized field sobriety test have relatively low reliability coefficients and thus can be effectively attacked on cross examination.

The instruction to the DUI Finger to Nose Test requires the person investigated for drunk driving to touch the tip of the nose with the tip of the finger while tilting the head back as far as possible and keeping the eyes closed.  The DUI driver have to stand still with hands extended horizontally while the officer calls our each hand (left, left, right, left, right etc…) trying to confuse you.  Not only this test is not validated by any studies, but it also does not have standard “clues”, that are used to determine when would you fail this test.  For instance, there is no scoring system to show that a person passed the test.  Many people will simply touch the nose with a pad of the finger – that, in view of a police officer is a fail because only the very tip of the finger has to be used.  A police officer can note the speed with which the test is performed, failing you when you are do it too rapidly or too slow.  Some police departments use forms that determine performance on this test, the form has a mark for “completely missed”, which is not specific enough to show how poorly the test was performed.  Contrast finger-to-nose test with a one leg stand test where a single step of the line is not sufficient evidence of impairment because NHSTA studies and determined that only specified number of clues will be sufficient to show impairment.

DUI Finger to Nose Test is based on a clinical condition known as ataxia, which implies inability to coordinate movement because of impairment of the nervous system.  The Finger-To-Nose test is similar to Romberg balance test which also requires closing of the eyes.  In essence, depriving a DUI suspect of sense of vision can cause a significant sway from side to side or even falling over if a he is under the influence of alcohol or drugs.

Study Shows Unreliability of DUI Finger to Nose Test

In 1977 study, Burns determined that both Finger-to-Nose test and Romberg test only show presence of alcohol but do not predict with any accuracy impairment or BAC level.  The error rate in 1977 Burns study was 47%.  In other words, the police officers used in the study wrongfully determined impairment and arrest almost half of all people who were not under the influence of alcohol.

The eventual study accepted by NHTSA was conducted in 1983 with a accuracy of around 80%.  The study was conducted in a lab and applied to roadside conditions.  Because scientific approach have to replicate the conditions of the tests as much as possible, a roadside police testing of DUI suspects can not be as accurate as a lab study and must adjust for roadside conditions.  The results of the study must be skewed to protect the public.  In other words, a person can perform differently depending on circumstance and being in a relaxed lab environment would definitely cause less people to “fail” the test, then being on a side of the road on a cold nigh with a police squad car lights flashing.

Los Angeles DUI Attorney Can Help You

Los Angeles DUI Attorney is an experienced litigator who can defend your DUI or DUI related arrest.  Our job starts the minute you get arrested and we do not stop until we get the best possible result in your case.

Los Angeles DUI lawyer will fight for you to get your driver license back and to avoid license suspension if possible.

If you were arrested based on bogus field sobriety test you owe it to yourself to hire an attorney who can defend you in court and at the DMV.  The DMV proceeding are as important as court and, if not defended properly, can cause severe driver license consequences.  We specialize in DUI defense and DMV defense and have the knowhow to navigate very complicated DMV land and the courts.

Call (818) 921 7744 attorney directly for a free immediate consultation.

We are taking calls after hours and during the weekend.

 

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