Updated on September 26th, 2022 at 04:26 pm
Field Sobriety Testing in Virginia
What You Should Know
If you are a suspected DUI driver in Virginia, police officers will ask you to perform one or more roadside field sobriety tests as part of their DUI/DWI investigation.
Can You Refuse to Take Virginia Roadside Field Tests?
Virginia does not impose penalties for refusing to take a field sobriety test during a traffic stop. And even if you submit to the tests and pass, there’s no guarantee you’ll not be arrested. However, every DUI field sobriety test has a specific administration process that law enforcement officers are supposed to follow.
The goal of these tests is to measure how well you can multitask.
Harrisonburg DUI Attorney Bob Keefer is certified as a Standardized Field Sobriety Test Instructor. He comprehensively understands the science behind these tests and knows how to analyze the officer’s test administration and performance.
Having a skilled defense attorney that’s proficient with these tests is important in building your defense against a DUI charge.
How Should I Handle Field Sobriety Tests in VA?
If asked, you should politely refuse to submit to these standard tests. Virginia courts still allow officers to testify about your performance even if they incorrectly administered the test. This violates the fundamental purpose of scientific field sobriety testing, which holds that they are only valid if administered per the stipulated protocols.
The FSTs are categorized into two:
- Standardized tests
- Non-standardized tests
Standardized tests are those the federal government scientifically validated over 30 years ago, but the non-standardized tests were not validated, even after extensive testing.
Validation means that if the officer administers the test in the same manner they were created, the officer can tell within a certain percentage whether a person is impaired. However, it does not mean that the officer will be able to tell for sure whether you were intoxicated.
What are the 3 Common Field Sobriety Tests?
The common FSTs in Virginia include:
- Horizontal gaze nystagmus
- one-leg stand test
- walk-and-turn test
One Leg Stand Test
In Virginia DUI Cases, the one-leg stand is the test that most jurors and judges will say, “If they can pass this test, they were not drunk.” The problem is this field sobriety test – more so than any other test – is designed for failure.
The one-leg stand test requires you to stand with your hands firmly at your sides with both feet together while the officer gives you instructions. You then raise either leg approximately six inches from the ground while keeping your leg straight.
You are instructed to count one thousand one, one thousand two, and so on. The officer will time you for 30 seconds. You are instructed to look at your foot while performing the test but where you look is not part of the testing criteria.
The officer will look for signs that you could not follow his instructions, such as if you:
- Sway while standing
- Put your foot down
- Raise your arms from your side
- Hop during the test
In Virginia, if you do two or more of these things, the officer will grade your performance as indicative of a BAC of .08 or higher.
Problems With This Test
This test was not designed to measure alcohol levels at .08. It was validated for a BAC of .10 or higher. Furthermore, like all field sobriety tests, this test was validated in a controlled environment, not on the side of a Virginia road with various weather elements, passing vehicles, and other distractions.
Police are often taught to stiffen their leg and buttocks while performing this test to gain more balance during instructions. This is not a trick they give to suspects on the side of the road. Furthermore, people with depth perception issues, joint disorders, injuries, or a history of head trauma cannot adequately perform these roadside sobriety tests. Moreover, most people over 30 years of age suffer a decline in their ability to balance.
The one-leg stand is a voluntary DUI field test. That means there is no punishment if you politely refuse to perform this test. But the officer will not tell you that the test is voluntary. Instead, officers are trained to use command presence to make their request seem like an order or instruction rather than a request.
Walk & Turn Test
In Virginia DUI cases, the walk-and-turn test requires you to stand in a position the officer instructs you to stand in while he gives you the instructions to the test and demonstrates the test for you.
After he makes sure you understand the test, you are to begin performing it. You will be graded on the test’s instruction and walking phases. A possible DUI arrest and conviction could occur if you fail.
The officer is looking for several clues of impairment while administering this test and will look at your:
- Ability to stand with your hands by your side with your right foot in front of your left foot during the instruction phase
- Ability to walk nine steps down the line and back while touching heel-to-toe
- Ability to keep your hands by your side the entire time (not use your arms for balance)
- Ability to complete the test without stepping off the line
- Ability to walk without stopping
- Ability to turn in the way the officer instructed you to turn after taking your first nine steps
The test’s purpose is to see whether you can stand while the officer instructs you and if you can remember what the officer instructed you to do while you perform the test.
One of the most common complaints by people who take the walk and turn test is that walking in such a constricted manner is difficult. It’s even more difficult when under the added pressure of the threat of DUI arrest and going to jail while walking on the side of the roadway.
People with any back, hip, leg, or ankle problems are not proper candidates for the test.
You Should Refuse the Test
You are not required to take this test under Virginia DUI law, and there are no penalties for refusing to do so. While there is no pass or fail for this test, you need only show two of the six clues as indication of impairment to provide the officer evidence, which may lead to probable cause for your arrest.
The validity of this test is highly questionable if the officer fails to give the instructions exactly as the test was validated or if you take the test in inclement weather, on a slope, hill, or anything but a smooth, level surface.
The walk-and-turn field sobriety test has never been scientifically validated as a roadside test but was validated in an enclosed environment without the fear of arrest of the test subjects or other distractions.
Horizontal Gaze Nystagmus (HGN) Test
In Virginia DUI cases, the most familiar field sobriety test is the Horizontal Gaze Nystagmus test (HGN), commonly known as the eye test. The officer will have you stand still and look forward while he moves his finger or another object in front of your eyes. There are many medical and factual defenses to this test’s validity.
In the HGN test, the officer looks to see if you can follow his finger with your eyes, whether your eyes track smoothly, and whether your eyes jerk from side to side. The HGN test is a medical test that was designed to test for neurological disorders.
Medical teaching does not allow any medical professional to evaluate your level of intoxication based on the movement of your eyes. The only place where that is satisfactory is DUI enforcement.
Problems with the HGN Test
People with astigmatism are not proper test subjects, and neither are people who have ever suffered a concussion, head injury, eye injury, or other neurological disorders. Officers are instructed to note that you have suffered one of these injuries or have one of these conditions and administer the test anyway.
Officers often tell you they will consider your medical condition in their evaluation. The problem is that officers do not have a medical background and have no way to consider what impact an injury or disorder has on your ability to perform the test properly.
Other problems with how this test is administered in real life versus how it was administered during the government’s research are that there were no environmental factors that affected the outcome of the test during the government’s testing. It is well established now that flashing lights, passing vehicles, wind, and other environmental factors lead to incorrect test interpretation or administration by officers.
Virginia law does not require you to perform the Horizontal Gaze Nystagmus test, and you should politely decline if the officer asks you to perform it. It will help if you aren’t rude or argumentative with the officer.
You do not have to – and should not – justify your refusal to take this field sobriety test to the officer. The more you talk and argue, the more evidence you give that will be used against you as an indication of impairment.
Consequences of Refusing to Submit to a Preliminary Breath Test
Like with field sobriety tests, you are not obligated to take a preliminary breathalyzer in Virginia. These tests are voluntary and used to establish reasonable suspicion leading to a DUI arrest.
Failure to give your preliminary breath sample can lead to a DUI arrest. However, law enforcement cannot submit this as evidence against you for a DUI charge. But the case is different with breathalyzer tests.
Submitting to a breathalyzer or blood test is covered under Virginia’s Implied Consent law. Refusing to take these tests at the police station is a civil offense that may attract legal penalties, including a one-year license suspension with no chance of acquiring a restricted license for 30 days and six demerit points.
For subsequent refusals within 10 years, you attract a three-year license suspension, a $2,500 fine, and a jail term.
Luckily, our defense lawyers can challenge such cases with strong defenses, including a reasonable reason for refusal, proving police officers didn’t follow testing procedures or handled breath test evidence improperly.
Providing Effective Defense Against Refusal Charges
There are many different defenses to each DUI field sobriety test. For instance, some tests are not valid for people who have suffered head, neck, back, or leg injuries. And other tests are not valid for people who have eye problems. Still, other tests are not valid for people with attention deficit disorder or mental health issues, such as PTSD.
Contact Us for Proficient Representation
If you have been arrested for DUI, contact Harrisonburg DUI Attorney Bob Keefer for a free, no-obligation case consultation. Bob is a certified instructor in the standardized field sobriety tests. As a qualified criminal defense attorney, he will evaluate your performance and the officer’s instructions to you and measure your performance using the criteria under which this test was validated.
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When You Need a Traffic Lawyer,
Keefer Law Firm Can Help.
- Attorney Keefer is one of the few people in Virginia to call himself a NHTSA Certified Field Sobriety Instructor.
- He has completed the DOT Certified Breath Technician course on the EC/IR II, Virginia’s breath tester for evidence.
- He was a founding member of the DUI Defense Lawyers Association and is a member of the National College for DUI Defense.
- Attorney Keefer has more than 30 years of experience providing legal representation throughout Virginia.
- Our office contains the Alco-Sensor III, which is also used by law enforcement for preliminary breath testing.
- We offer free consultations for traffic offense and DUI cases.