When the police make a stop for a suspected DUI, they begin gathering evidence at the roadside. The police officer will likely conduct a series of test to determine if the driver is driving under the influence (DUI). Three tests are commonly conducted: the horizontal gaze nystagmus test (HGN); the walk and turn test; and, the one leg stand test. Washington State Patrols Forensics Lab provides instructions and scoring guide for the tests. Understand these Washington’s Roadside Sobriety Tests if you are stopped on suspicion of a DUI.
Follow The Pen Light
The scoring guide indicates how easy it is to fail the test. In the HGN test, the driver will be instructed to follow the movements of a penlight, or other object, without moving his head. The police officer is looking to see if the pupils move in a jerky motion. However, eye fatigue, along with other factors, can cause a jerky reaction in the absence of alcohol. Also, we need to get real. The HGN results cannot be verified other than by the police officer’s observations. The movements of the pupils are so small that a body camera is not likely to record the pupil’s reactions.
Walk, Turn and Do What?
The walk and turn test is equally easy to fail. According to the manual, the person suspected of a DUI is instructed to take nine steps heel to toe, turn and continue making nine more heel-to-toe steps. If you miss a heel-to-toe, that is considered evidence of impairment. If you make an improper turn, that too is considered evidence of impairment. The requirements for a proper turn can be confusing. The manual states the following: “When you turn, keep your front foot on the line, and turn by taking a series of small steps with the other foot.” If the turn is not executed correctly, that is evidence of impairment according to the manual. Also, if the person taking the test extends his or her arms for balance, that is considered to be a sign of impairment.
Stand On One Leg
The third test is the one leg stand test. This test requires the suspect to stand on one leg and raise the other foot approximately six inches while keeping the raised foot parallel to the ground. At the same time, the suspect is to count out loud. The test lasts thirty seconds. Swaying, putting your foot down, or using your arms for balance are all considered evidence of impairment. The flaws in this test are readily apparent. Obviously, some people are not going to have the stamina to stand on one leg for thirty seconds. Also, the test is conducted by the roadside; any slope on the shoulder of the road can cause a person to lose balance or sway. Moreover, an inner ear infection or other health related issues can affect the test.
Preliminary Breath Test
Another test that may be used is a preliminary breath test. You do have the right to refuse the preliminary breath test without a penalty being imposed. The results of the preliminary breath test cannot be used against you in court. However, the results of the preliminary test can be used to establish probable cause for an arrest.
Evidence In Court
The Washington’s roadside sobriety tests are important for two reasons. First, they can be used to establish probable cause for an arrest. All of the tests, except the preliminary breath test, can be introduced as evidence against you in court. Also, the police officer’s observations can be admitted as evidence in court. For example, police reports typically state that the driver had bloodshot eyes, a strong odor of alcohol, slurred speech, and stumbled. Experienced attorneys can tell you how often they have seen police reports that cited a strong odor of alcohol and slurred speech, but when the test results came back, no alcohol was detected.
Once an arrest is made, the person arrested can be transported to a station or clinic where additional tests can be performed. The State of Washington is an implied consent state. Implied consent means by driving on the roads and streets of Washington, you give consent to a breath test or a sample of your blood being drawn. That being said, you can refuse to take the tests, but your driver’s license can be suspended. Moreover, the Washington statutes give police the authority to seek a warrant to allow a blood sample to be drawn. If arrested for a DUI, you can have additional tests performed by a person of your choice who is certified to conduct the test.
The breathalyzer and blood analysis are the typical tests used in the State of Washington to measure blood alcohol level and the presence of other intoxicating substances. A blood alcohol level of .08 and higher is defined as legally impaired for people over the age of 21 operating a private vehicle. For those under the age of 21, a reading of .02 and higher is defined as driving under the influence. A THC level of .05 and higher is the legal limit for people over the age of 21. For those under the age of 21, there is a zero tolerance level for the presence of THC.