Why sober people fail Michigan field sobriety tests.

By Attorney James Czarnecki|Czarnecki & Taylor PLLC|NOV 6, 2022

First, what are field sobriety tests?

Sobriety tests are designed to assess a person’s level of intoxication. Field sobriety tests typically involve performing various physical and mental tasks in order to determine whether the person is under the influence of alcohol or some other substance. While these tests can help a police officer, sober people can fail them as well. In this blog, we will discuss some reasons sober people fail Michigan field sobriety tests and why their results should be viewed with caution. The most shocking fact is that there is no conclusive evidence that a sober person will perform better on a field sobriety person than a person who is impaired by alcohol.

Police uses field sobriety tests, sometimes called roadside tests, when they suspect that a person is operating while intoxicated, OWI in Michigan. An officer asks the individual to perform specific tests while noting the person’s balance, coordination, attention to instructions, etc. The officer will record the results to support probable cause for an OWI arrest.

Depending on the facts of the particular case, an experienced criminal defense attorney can challenge an OWI arrest based on field sobriety tests. The attorney can show that the officer did not have probable cause to arrest the person because the field sobriety tests were not reliable. The police cannot lawfully arrest a person for an OWI unless the officer has “probable cause” to support their belief that person committed a crime. Courts will find the probable cause standard satisfied when there is a reasonable basis for believing that the person may have committed a crime.

 If the attorney can show that the police officer did not have probable cause to make an OWI arrest, the arrest and blood alcohol analysis may be suppressed. One way to challenge probable cause is to attack the field sobriety tests.

Field sobriety tests can be challenged at trial to show that the driver was not intoxicated.

Field sobriety tests are not good indicators of intoxication because sober people can fail them. The tests are highly misleading and prejudicial. The danger is that a court or jury may place too much emphasis on them. The field sobriety tests receive too much credit in court. Science does not support the reliability of field sobriety tests. If they are not reliable, they should not be used to support an arrest and should not be introduced as evidence in an OWI trial. 

Field sobriety tests are not reliable indicators of intoxication

Despite widespread use by law enforcement, field sobriety tests are unreliable. Many variables call into question the dependability of field sobriety tests in determining a Michigan driver’s inability to operate a motor vehicle.

The FSTs that Michigan police administer are controversial because sober people can fail them. The problem is the prosecutor uses the failures against the defendant at trial. Another problem is that officers use their subjective judgment to determine whether the person failed the tests. Essentially, the officer determines whether the individual performed the tests correctly. Field sobriety test studies show that many people are falsely accused, arrested, and convicted of drunk driving (OWI) because of failing or badly performing a field sobriety test.

Field sobriety tests are not a scientifically reliable method of determining a person’s inability to operate a motor vehicle. Yes, intoxicated drivers will fail them. But sober people fail Michigan field sobriety tests. That is the problem of the misleading use of FSTs.

You should note that a driver does not have to perform the FSTs at the officer’s request. They are optional. However, people believe they must comply with an officer’s request. Since the officer interprets the test the way the officer sees fit, the person performs the tests, usually fails, and then they is arrested for an OWI.

It is important to note that, aside from field sobriety tests, other factors can support an arrest for an OWI. For example, police officers can:

• describe the person’s erratic driving
• show results of Preliminary Breath Tests
• eyewitness accounts
• accidents
• the description of the individual – bloodshot eyes, the odor of intoxicants, slurred speech
• presence of alcohol in the car

The problems with those factors are beyond the scope of this article. While there are challenges to the elements in the list, this article will focus on the issues associated with field sobriety tests. Challenging field sobriety tests is an essential aspect of an OWI defense.

Another reason that sober people may fail Michigan field sobriety tests is because they lack certain skills or physical abilities required to complete the tasks. For example, walking in a straight line with your arms outstretched requires good balance and coordination, which some people may not have due to age or health conditions. Similarly, many field sobriety tests require you to track an object with your eyes while following it with your head or body, which can be difficult for people who suffer from vision problems or other visual disorders.

Problems with Michigan field sobriety tests.

Michigan police and departments across the country use FSTs to test a person’s coordination skills. There are three tests that the National Highway Traffic Safety Administration has standardized: (1) Horizontal Gaze Nystagmus (HGN) Test, (2) walk ane turn, and (3) one-leg stand with head tilt.

Despite the lack of scientific basis to support FSTs, every day, Michigan police officers ask drivers to perform other tests: counting backward and stopping at a number, alphabet, touching fingers to thumb while counting to 4, balance test, and touch a finger to nose. As discussed earlier, the officer then uses the failures to establish probable cause to make an OWI arrest. Some of these tests are non-approved field sobriety tests to establish probable cause. Those tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

The National Highway Traffic Safety Administration (NHTSA) published several training manuals concluding that the walk-and-turn was only 68% accurate. The one-leg stand test is only 65% accurate. The studies did not discuss how medical conditions, injuries, age, and weight affected a person’s inability to perform the tests even while sober. Overall, field sobriety tests are not a scientifically proven method to reliably make an OWI arrest.

Finger Dexterity Test

Even though NHTSA has not determined that this test is standardized, Michigan police officers still use it as a basis to support an OWI arrest. Nevertheless, police officers will administer it to determine if a driver is under the influence of alcohol or other substances that cause impairment. Aside from the fact that this test is not scientifically validated, many people cannot perform this test sober.

To take this test, the officer will ask you to use your thumb to touch the tip of your fingers while counting 1,2, 3, 4, and then 4,3,2,1. Without any objective, concrete standards to judge a person’s performance, the police officer will “look” to see if you are touching your fingers precisely. Based only on the officer’s interpretation, the officer will look for signs of impairment. Signs of impairment could be not touching the exact tip of the finger to the tip of the thumb, not using the right order, concentrating too much, and performing the test slowly.

Our office once represented a client who could not perform the finger to thumb test because of damage done to his hands because of a work accident. Our client told the officer he could not perform the test correctly. The officer still asked the client to do the test. Of course, he failed. In court, we successfully challenged the arrest because of the medical issues with his hands among and other issues.

Problems with the finger dexterity test

First, there is no scientific basis linking the test to the ability to safely operating a motor vehicle. There have been only a few studies showing that the test is a reliable indicator of impairment.

Another problem with the test is the lack of a strict standard to critique a person’s performance. Since reliable, objective standards upon which to judge the test do not exist, every officer will be free to reach their own conclusion. This means what one officer sees, another may not. So, the results will vary.

A person may have a medical condition that will affect their ability to perform the test according to the officer’s standards. As described earlier, our office represented a client charged with an OWI offense where the officer asked our client to perform this test. The officer’s dash-cam recorded the entire incident. Immediately after the officer made the request, our client told the officer that he had an accident at work that prohibited his fingers from moving correctly. Nevertheless, the officer requested he perform the test. Of course, the client failed.

At court, we successfully challenged the arrest and had the case dismissed after an evidentiary hearing. Other arguments had been made, but one of them related to the finger dexterity test. We presented evidence that included x-rays, showing the damage an industrial accident had on our client’s hands. Of course, he couldn’t pass the test, we argued. The court agreed that the field sobriety test was not reliable. This is but just one example of why sober people fail Michigan field sobriety tests.

Straight Line Walk and Turn (Heel to Toe)

While the instructions vary from officer to officer, the general instructions are as follows:

• Walk an imaginary line, heel to toe, for precisely nine steps 
• Turn as specified,
• Keep your arms at your sides and do not lift them out for balance, 
• Count your steps  
• Turn around and walk back nine steps 

Each officer will make their own determination whether a person performed the test correctly. If the person slightly tilts, wobbles, or drifts off the imaginary line, the result will be a failure.

Problems with the Walk and Turn

Several problems exist with this test. First, what line is the person asked to walk on? The person’s line may differ from the officer’s. The officer does not draw a line on the ground.

Another problem is that the officer asks the person to perform the test on the side of the road. The weather could affect a person’s balance. It could be cold, windy, and dark. The patrol car’s flashing lights may distract the person. The road may be uneven. There could be loose gravel. Also, a person must perform the test under the stress of an arrest. Another problem is that people don’t walk like that every day. If you are not used to performing these kinds of tasks, you may struggle to perform them accurately and consistently.

To make it even more confusing, the officer rarely gives the person any sign of what they are looking for during the test. The officer rarely, if ever, demonstrates the test for the person. Why would they? If the dash-cam records the officer wobbling, tilting, and swaying, the test will lose all credibility at trial.

Studies by the National Highway Traffic Safety Administration regarding the walk and turn test have concluded that it is only accurate approximately 65% of the time. So, 35% percent of the time it is wrong. Those aren’t exactly reliable results.

There are many problems with this and as with any other field sobriety test. Science does not support them. The tests are designed to be difficult to perform. So, it should not come as a surprise that a sober person can fail the field sobriety tests. Trainers tell police that sober people will fail these tests but they use them anyway.

During trial, we asked a police officer to perform this test. The officer tried this test but swayed during the turn but balanced himself by using an outstretched arm. Officers may “cheat” to pass the test while performing it in court but, the defendant does not get the benefit of using a “cheat” method on the side of the road.

One Leg Balance Test

This test is one of the three “standardized” deemed validated. But, this doesn’t the results are reliable. To perform this test, the officer will ask a person to raise one leg off of the ground about 6 inches with hands at the side. The person may be asked to count to a specific number, sometimes with their eyes closed.

While the person is performing this test, the officer will see if the person sways, puts a foot down, sticks their arms out, or hops. If the person does any of these, the officer may determine that the person is intoxicated.

Problems with the balance test

The ability to perform the test correctly falls is solely based on the officer’s opinion. This test is only accurate 65% of the time. Phrased another way, 35% of the time, sober people will fail the field sobriety test.

Sober people can fail the test if they have back problems, wear high heels, are overweight, are elderly, have leg issues, have, middle ear problems, vertigo, etc. Weather conditions can also affect a person’s ability to perform this test. Just think how a slight breeze might affect a person’s ability to stand on one leg.

Here is an excellent example from one of our cases. My colleague went to trial on an OWI offense. During the trial, she asked the officer to get off the stand and perform the one-legged stand test. While the officer performed the test, he slightly bent his support leg at the knee. He still swayed and fought to maintain his balance. My colleague asked,” I see you bent your knee to help with your balance. Did you tell my client that he could do the same?” The officer replied, “No.” My colleague also asked, “I noticed you swayed a little when you stood on one leg. Was the test difficult?” The officer replied, “It was an acceptable amount of sway.” Then my colleague asked, “Well, officer, who determined that it was an acceptable amount of sway?” “How is my client’s sway not acceptable like yours?”

Experienced defense attorneys know what to look for and how to ask these questions. A great criminal attorney knows the officer’s training, the background of the field sobriety tests, the lack of science to support them, and how to challenge the tests in court.

Horizontal Gaze Nystagmus Test

Nystagmus is the medical term used to describe the involuntary jerking of the eyeballs. The theory is that when someone is intoxicated by alcohol or drugs, eyeball jerking becomes more visible. Law enforcement uses the HGN test to evaluate an individual’s eyes to determine if that person is impaired.

To perform this test, the officer will initially “evaluate” your eyes to see how they function while at rest. If a person’s eyes cannot track correctly, the officer may not have the person perform the test.

If the officer determines that the individual’s eyes are “normal,” the officer will hold a pen about a foot from the person’s nose and ask them to follow it from side to side using just the eyes.

The officer looks for three things:

• do either of the person’s eyes jerk while following the pen – this is called lack of smooth pursuit
• the officer will see if eye jerking (nystagmus) starts before the person’s eyes get to a 45-degree angle
• the officer will look to see if there is “nystagmus at maximum deviation” – this means that the person’s eyes jerk and bounce within seconds while the person’s eyes are looking completely to one side

Problems with the Horizontal Gaze Nystagmus Test

Even though this test is standardized, it is accurate only 77% of the time under optimum conditions. When the officer is conducting the test, the officer doesn’t know if the person has any neurological disorders or eye problems. So, 33% of the time, sober people fail the test. Also, there may be medical reasons a person could fail this test with nothing to do with alcohol or intoxication.

Our office challenged this test in court on more than one occasion. During cross-examination, we revealed the officer had our client perform the test while looking directly into the headlights, flashers, and searchlight of the patrol car. How could anyone’s eyes stay smooth and not jump around under those conditions? In that case, the officer did not ask our client to perform the test under reasonable conditions.

Other reasons sober people fail Michigan field sobriety tests

1. Physical ailments/conditions. Many people who drive have medical conditions that could affect their ability to perform balance and coordination tasks. While people can safely operate a motor vehicle, they cannot stand on one leg or walk a straight line. People may have neurological conditions that cause balance problems. People who are overweight may not do as well as those in better shape.
2. Nerves. Being stopped by the police can be a traumatic situation for most people. Being investigated for an OWI will undoubtedly cause people to be nervous. When people are nervous, they may have difficulty focusing on the task at hand. They may not hear the instructions correctly. They may not be able to focus. Almost all police officers will fail a person for not following the instructions.
3. Pressure of the situation. One common reason that sober people may fail a field sobriety test is if they are simply stressed about being tested for intoxication in front of others. It can be intimidating to perform poorly on such a test, especially if there is a possibility of being arrested for driving under the influence. If you are not used to performing these kinds of tasks, you may struggle to perform them accurately and consistently.
4. Being tired. It should come as no surprise that people who are tired do not do well on fine motor skill tasks. While they may operate a motor vehicle safely, they cannot the intricate tests requested by a police officer.
5. Lack of coordination: Some people just lack good coordination. We all know people who are just “clumsy.” So, while some people can’t “walk and chew gum,” the police should not expect them to perform some of these tests in a way that is acceptable to the officer. Remember, the individual officer interprets the results in a way that they see fit. So, while you or I would say that a person acceptably performed the test, the officer most likely will not.
6. The officer’s subjective interpretations. If an officer stopped a person for swerving or crossing a line late at night, the officer has already formed an opinion that the person may be operating while intoxicated. So, when the officer asks the person to perform the field sobriety tests, the officer will engage in confirmation bias. “Confirmation bias” is the tendency to interpret evidence as confirmation of one’s existing beliefs or theories. The officer will look for reasons to confirm the officer’s initial hunch the person is operating while intoxicated.

As this article shows, there are many reasons sober people fail Michigan field sobriety tests. This is especially true if the officer is looking for reasons to support their initial hunch.

Contact Czarnecki & Taylor to provide aggressive defense against your OWI charge.

Overall, there are many factors that can contribute to a sober person’s failure during field sobriety tests. Some people may not be physically or mentally capable of performing the tasks, while others may struggle with the challenges because they are tired, anxious, or distracted. Ultimately, it is important to remember that these tests are often unreliable and should only be used as one piece of evidence in determining whether someone is under the influence. So if you fail a field sobriety test despite being sober, don’t despair – there are many other factors that can contribute to your performance. Instead, understand that you have legal rights that protect you from unfair treatment by law enforcement officials.

If you are facing a Michigan OWI charge, you need an experienced and effective law office on your side. At our firm, we have the knowledge and skill necessary to help you navigate the complex legal process ahead of you.

One reason that our law office is so effective when representing people facing OWI charges is because we understand the specific challenges and obstacles that come with this type of offense. We know how to handle these cases from all different angles, ensuring that your rights as a defendant are protected throughout every step of your case. We have an extensive track record of success representing people charged with misdemeanors or felonies.

One quality that sets Czarnecki & Taylor apart from other firms is our ability to handle complex cases that require specialized knowledge and experience. Our firm’s impressive track record for success and aggressive Michigan criminal defense is unparalleled for achieving exceptional results. Czarnecki & Taylor has a well-earned reputation among judges, courts, city attorneys, prosecutors, police, and other defense attorneys for defending our clients.

Besides having extensive experience handling DUI/OWI charges in Michigan, we also bring a personalized approach to each case that we take on. We know that no two situations are the same and can tailor our representation to meet your specific needs and goals.

If you are facing an OWI charge in Michigan, call us today to learn more about how our law office can effectively represent you. Learn more about how we win Michigan OWI cases.

Have you been arrested for a Michigan OWI? We can help. Czarnecki & Taylor PLLC’s experienced attorneys will handle your case with care and help you through every step of the process. For a free consultation, call us today at (586) 718-2345 or online for a prompt response. We are available 24/7 and have weekend and evening appointments.