Field Sobriety Exercises (FSE)

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THINGS YOU SHOULD KNOW ABOUT FSE's
(Field Sobriety Exercises)

•WERE YOU GIVEN the FSE's?

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•WHAT ARE FSE's ANYWAY?

•ARE the EXERCISES ACCURATE?

•WERE theY ADMINISTERED PROPERLY?

•WERE theY EVALUATED FAIRLY?

•WERE theY DONE VOLUNTARILY?

If you participated in Field Sobriety Exercises and were arrested for DUI, there is a 99.9% chance that the arresting officer will state in his arrest affidavit and sworn "field sobriety report" that you failed them or did poorly! Oftentimes, even a specially trained DUI officer will administer and evaluate the FSE's inaccurately, so having a Qualified DUI Firm that specializes in DUI Defense and has the qualifications to properly challenge the results of your Field Sobriety Exercises is crucial to your defense! We may be able to demonstrate that your performance was not poor or that the officer failed to follow FSE protocol, thereby minimizing the effectiveness of the officer's results, or even eliminating their value altogether, which may be the difference in whether or not you BEAT your DUI charge!

Our DUI TEAM challenges FSE's

RON SHOLES, P.A. has a team approach to defending you against your DUI Charge!

RON SHOLES, P.A. has an "in-house" investigator who reviews each and every DUI case, oftentimes going to the location of the alleged traffic pattern, stop or where FSE's were actually performed. This alone makes the difference in many of our DUI cases.

RON SHOLES, P.A. DUI attorneys share in the responsibility of defending you on your DUI Charge and oftentimes you will meet with not only the primary attorney handling your case, but possibly our investigator and other attorneys as well.

RON SHOLES, P.A. DUI attorneys are specially trained in the administration and evaluation of Field Sobriety Exercises having completed the same field sobriety test training as that attended by DUI enforcement officers, an intensive twenty-four (24) hour course of instruction from the National Highway Traffic Safety Administration (NHTSA).

RON SHOLES, P.A. has DUI attorneys that are qualified Field Sobriety Instructors, having completed the FSE instructor training course consisting of an intensive forty (40) hour course whereby the attorney's were required to pass a written examination and demonstrate 100% proficiency in the administration and evaluation of FSE's! Unless the Officer who arrested you was a qualified FSE Instructor (and most are not), he was never required to demonstrate 100% proficiency in the administration of FSE's and therefore, he probably wasn't 100% proficient this time!

RON SHOLES, P.A. has a former prosecutor on staff who has prosecuted hundreds of misdemeanor and felony DUI's and brings a "prosecutor" perspective to our DUI defense practice.

So, what are FSE's?

Are they really anything other than Circus Tricks?

Do they really measure your "Normal Faculties?"

Well, Field Sobriety Exercises (FSE's) are psychophysical test which are used to assess a persons physical and/or mental impairment. they are supposed to focus on the abilities needed for safe driving. these tests are often referred to as "divided attention" tasks. they require a person to concentrate on more than one task at the same time. To safely drive a care, a person needs to be able to simultaneously control steering, breaking, and acceleration; react to constantly changing driving environment; and perform many other tasks. Alcohol affects one's ability to adequately divide attention, thus causing drivers to concentrate on more difficult tasks while ignoring simpler ones (i.e. ignore a traffic signal while concentrating on one's speed). Even if impaired, most people can successfully concentrate on a single task fairly well, but when impaired, most drivers cannot successfully divide their attention between multiple tasks at once. A Qualified DUI Firm knows what to look for in your case to try and disprove your impairment and to shift the focus on the officer's shortcomings in the administration and evaluation of the FSE's. Florida Jury Instructions defines "normal faculties" as your ability to "see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and to normally perform the many mental and physical acts of our daily lives." Does that definition of "normal faculties" sound anything like one-leg-stand, or finger-to-nose or walk-and-turn exercises? Of course not. Too many Attorneys lose sight of what "Normal Faculties" means under Florida Law - it doesn't mean perform a one leg stand or do a heel-to-toe or a finger-to-nose exercise these exercises are not our normal - mental and physical acts of our daily lives - they are nowhere close to our daily mental and physical acts, so how can they be used to judge such normal faculties? Because attorneys don't challenge them, that's how. Most people have never tried these exercises before so no, they are not good indicators of our ability to drive or do our daily activities.

Divided attention tasks are designed to evaluate mental and physical capabilities a person needs to safely drive a care. they include information processing; short-term memory; judgment and decision-making; balance; steady, sure reactions; clear vision; small muscle control; and coordination of simultaneously. A test must also be reasonably simple for the average non-intoxicated person to perform. the problem is that people do not do these tasks regularly and it can be easily demonstrated to most jurors that the exercises are not necessarily easy, especially if not done under the ideal circumstances in which the scientific studies were conducted.

The most common FSE's used by the police include the three standardized tests consisting of the Horizontal Gaze Nystagmus test, the Walk & Turn test, and the One Leg Stand test. these three tests have been validated as reliable indicators of intoxication, although they are not 100% accurate. Other commonly used, but non-standardized, tests include counting backwards, saying the alphabet (or a portion of it), finger-to-nose count, and the stationary balance (Rhomberg) tests.

So, are FSE's ACCURATE anyway?

The State Attorney should know that the National Highway Traffic Safety Administration (NHTSA) standards dictate that if the Officer deviated from the correct administration of your tests, the validity of the results may be compromised. Since the arresting DUI Officer was supposed to be following NHTSA procedures, it is imperative that his or her administration of the exercises be exploited by your DUI Attorney!

The Southern California Research Institute (SCRI), sponsored by NHTSA, conducted extensive research associated with the proper administration and reliability of field sobriety testing. Relying on these studies, the federal government has since concluded:

• That the "ONE LEG STAND" test has been shown to be ONLY 65% RELIABLE in detecting drivers with unlawful blood alcohol levels;

• That the "WALK & TURN" test has been shown to be ONLY 68% RELIABLE in detecting drivers with unlawful blood alcohol levels;

• That the "HGN" test has been shown to be ONLY 77% RELIABLE in detecting drivers with unlawful blood alcohol levels.

• That any test given to you other than the above three, (i.e. "alphabet test" or "finger to nose test,") lacks endorsement of use by the federal government as NHTSA has no studies to demonstrate their effectiveness.

Note: these statistics were secured using "ideal" testing conditions on persons with no known medical conditions. the SCRI-NHTSA study conceded that not having ideal testing conditions would further reduce the percentage of reliability of results. It is imperative that your DUI Attorney exploit the testing conditions and your medical history as it applies to the accuracy of these exercises!

HORIZONTAL GAZE NYSTAGMUS (HGN)

(the Eye Test)

Although this is supposed to be the most reliable exercise at determining impairment, this is the most difficult test for a DUI officer to administer. For that reason, this is the test they most often get wrong! But it takes a DUI attorney who knows how to administer this test to figure it out! Your Qualified DUI Attorney should have the procedures down cold as this exercise counts for 1/3 (33%) of the standardized exercises you were probably required to do!

This test refers to the involuntary jerking of the eye as it gazes to the side. When this occurs, the person is unaware of the jerking, and cannot control it. This involuntary jerking becomes noticeable as persons' blood alcohol increases. This is the most reliable of the FSE's. However, Nystagmus is also a natural, normal phenomenon.

When the HGN test is administered, the officer is required to hold a stimulus (usually a pen) 12-15 inches in front of your eyes and ask you to follow the stimulus with you eyes, without moving your head. the officer will always start with the left eye and they are looking for 3 specific clues:

CLUE #1 - Lack of Smooth Pursuit: As the eye moves from side to side, does it move smoothly or does it noticeably jerk (bounce)? the jerking is similar to how windshield wipers jerk across a dry windshield. there is a standardized pace the officer is to have the eyes move side to side. From the center of the face, they are to move the eye all the way out to the side in approximately 2 seconds, then 2 seconds back to center, approximately 2 seconds to the other side, and 2 seconds back to center. they are to repeat the procedure. If they have the eyes move too fast, not only are they performing the test improperly, the government has admitted that quick movement of the eyes may cause Nystagmus, thereby invalidating the results!

CLUE #2 - Distinct Nystagmus at Maximum Deviation: When the eye moves as far to the side as possible and is kept in that position for several seconds, is there distinct jerking (bouncing) of the eye. the eye is to be moved all the way to the side, and kept there a minimum of 4 seconds. Interestingly enough, some people exhibit slight jerking of the eye at maximum deviation even when unimpaired! Also, if the eye is moved to the side too quickly, this may cause the Nystagmus, thereby invalidating the results!

CLUE #3 - Onset of Nystagmus Prior To 45 Degrees: As the eye moves towards the side, does it start to jerk (bounce) before it reaches a 45-degree angle? When moving the eye out to 45-degrees it is important to take the full 4 seconds when checking for onset. If the stimulus is moved to fast, the officer could take your eye beyond 45-degrees, or if the eye is move to 45-degrees too quickly, this may cause the Nystagmus, thereby invalidating the results!

the maximum number of clues in each eye is 3, for a total of 6 clues. the original research has shown that if 4 or more clues are present, the person is intoxicated! Most DUI officers fail to take into consideration any possible medical conditions as a contributing factor to Nystagmus, or they fail to consider their strobe lights, traffic lights nearby or other lights in the area as a contributing factor to Nystagmus, or they fail to consider other factors which may affect this exercise! This test has been shown through scientific studies to be accurate 77% of the time; therefore, it is inaccurate 23% of the time!

WALK & TURN

This divided attention test consists of the instruction phase and the walking phase. During the instruction phase, the person must stand with the right foot directly in front of the left foot with the heel and toes touching, keeping their arms at their side, while listening to the instructions. One's attention is divided between keeping their balance and listening to and remembering the instructions. the instruction phase of the test takes at least 45 seconds to complete. If you use yours arms for balance in this awkward position of step out of the position, it will be taken as a sign of intoxication.

During the walking phase, the person takes 9 heel-to-toe steps, turns in a prescribed manner, and takes 9 hell-to-toe steps back, while counting the steps out loud. the steps are taken down a straight line, and if an actual line is not present, the person is instructed to walk down an imaginary line. the walking phase divides a person's attention between keeping their balance, counting out loud, taking the proper number of steps, tuning in the prescribed manner, while keeping their arms at their side.

the officer is looking the 8 specific clues:

1. can't balance during instructions;

2. starts to soon;

3. stops while walking;

4. doesn't touch heel-to-toe;

5. steps off line;

6. uses arms for balance;

7. loses balance on turn or turns incorrectly; and

8. takes the wrong number of steps.

the original research has shown that if 2 or more clues are present, the person is intoxicated! Our firm has determined that there are over 100 possible opportunities for the officer to "find" 2 clues. For example, it only takes you one (1) time to miss heel-to-toe by one-half (1/2) inch (out of the eighteen (18) possible occurrences) for it to constitute a "clue of impairment." the way we calculate your performance and often provide it to the State it ends up that if you have 4 clues you may actually score a 96% accuracy, or a grade of an "A"! This test has been shown through scientific studies to be accurate 68% of the time; therefore, it is inaccurate 32% of the time!

ONE LEG STAND

This divided attention test consists of the instruction phase and the balance & counting phase. During the instruction phase the person must stand with their feet together, keeping their arms at their side while listening to the instructions. One's attention is divided between keeping their balance and listening to and remembering the instructions.

During the balance & counting phase, the person must raise one leg approximately 6 inches off the ground, arms at their side, toes pointed out and looking at the pointed toes, and keeping both legs straight. While looking at their toes, they are to count 1001, 1002, 1003, etc. until they are told to stop. During the test, if at anytime a person puts their foot down, they are instructed to pick it back up and continue counting where they lift off.

the officer is looking for 4 specific clues:

1. sways while balancing

2. using arms for balance;

3. hopping; and

4. putting foot down.

The original research has shown that if 2 or more clues are present (i.e. putting foot down 1 time and having a couple seconds of sway), the person is intoxicated! This test has been shown through scientific studies to be accurate 65% of the time; therefore, it is inaccurate 35% of the time!

COUNTING BACKWARDS

(NOT A VALIDATED TEST)

This divided attention test requires a person to count out loud a set of numbers in reverse order. For example, the person is instructed to start with a specific letter, D, and stop at a specific letter, T. This divides the person's attention because they have to remember the specific letter to start with, say the letters in sequence, and remember the letter to stop with. Anything less than 100% perfection will be viewed as a sign of intoxication.

FINGER-TO-NOSE

(NOT A VALIDATED TEST)

This test required a person to touch the tip of their nose with their index finger approximately six times (3 from right and 3 from left) while holding their head back and eyes closed, they must raise the proper hand as instructed touch the top of their nose (approximately six (6) times) and return their hand to their side without being told to do so. Practically anything less than 100% perfection will be viewed as a sign of intoxication.

RHOMBERG-ALPHABET

(NOT A VALIDATED TEST)

This test requires a person to stand with heels and toes touching, holding their head back, with eyes closed, and saying their ABC's in a non-rhythmic fashion (not singing). The officer is looking for any swaying, opening of the eyes, failure to tilt head back and failure to properly recite the alphabet. All officers should admit that some sway is expected from even sober persons, but it may take some work! Also, singing any portion is considered to be a sign of impairment.

Try these field sobriety tests at home with someone evaluating you and contact me with your results. How many tests did you fail without having anything to drink?

Even though officers have testified that all non-intoxicated people should be able to successfully perform the Field Sobriety Exercise (i.e. 100% accurate), the National Highway Traffic Safety Administration, through their extensive research, has remarkably acknowledged that:

•  these tests lose their sensitivity if repeated;

•  sober people have difficulty with balance;

•  Leg problems can affect these tests;

•  back problems can affect these tests:

•  middle ear problems can affect these tests;

•  age can affect the tests;

•  footwear can affect these tests; and

•  weather conditions can affect the tests.

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