The process of a DUII investigation is usually very predictable. Most officers will follow guidelines from the Standardized Field Sobriety Test Manual (“SFST Manual”) developed and published by the National Highway Traffic Safety Administration (“NHTSA”). This post is meant to briefly discuss the process law enforcement officers in Oregon typically follow in a DUII investigation.
According to the SFST Manual, there are three phases to a DUII investigation: (1) Vehicle in Motion, (2) Initial Contact, and (3) Standardized Field Sobriety Tests (“SFSTs” or “FSTs”). During the first phase, the officer watches the car for multiple potential indicators of intoxicated driving. These indicators include driving over the speed limit, driving under the speed limit, failing to stay within the lane, drifting repeatedly within the lane, or other abnormal driving behaviors. After watching the car, the officer will activate their lights and pull the car over. This begins the second phase, initial contact.
During initial contact, law enforcement will contact the driver at the window and ask, “license, registration, proof of insurance.” While the driver is looking for these documents, the officer is sniffing for the smell of alcohol or marijuana, looking for an alcohol bottle or can in the cupholder, and looking for a marijuana pipe or other paraphernalia. The officer will also watch the driver’s movements to see if they are moving slowly. They also look at the driver’s eyes to see if they are watery or bloodshot, or if the driver is slurring their words. Typically, if the officer sees any of these indicators, they will want to conduct the formal fields sobriety tests and will ask the driver to step out of the car.
There are three SFSTs that every officer tries to complete during a DUII investigation, and one FST that they use if they suspect marijuana consumption. The first test is the Horizontal Gaze Nystagmus Test. In this test, the officer uses a pen or their finger and moves their finger back and forth while watching the driver’s eyes. If the driver’s eyes are skipping as the pen goes back and forth, that is an indicator of impairment. If the driver’s eyes are shaking when the pen stops, that is an indicator of impairment. This test is especially good at identifying alcohol intoxication.
The second SFST is the Walk and Turn test, where the officer has the driver walk back and forth on an imaginary line. This is an easy test to fail, even when sober, because only two indicators are needed for the officer to believe the driver is impaired, and there are eight different indicators in that test, including stepping off the line, failing to touch heel-to-toe, turning around incorrectly, raising arms for balance, and so on.
The third SFST is the One Leg Stand test. In this test, the driver lifts one foot off the ground and, while staring at the raised foot, counts up to 30. This test can be failed even when sober if the person has balance problems. The indicators in this test include swaying, raising arms for balance, putting the raised foot down, and hopping.
When an officer suspects the driver is under the influence of marijuana or other drugs, they will often ask the driver to conduct the Modified Romberg test. This test has the driver tilt their head back and estimate the passage of 30 seconds. If the driver is within 5 seconds of the actual amount of time, then the driver passes the test.
Because these tests are standardized, they must be followed to the letter, or the test can be thrown out by the court. As such, having an experienced attorney review the case is important to ensure whether the officers followed their training.
IF YOU ARE SUSPECTED OF DUII, YOU HAVE A RIGHT TO REFUSE TO CONDUCT FIELD SOBRIETY TESTS. HOWEVER, THE OFFICER WILL ADVISE YOU THAT REFUSAL TO PARTICIPATE IN FIELD SOBRIETY TESTS MAY BE USED AGAINST YOU IN COURT. EVEN SO, WE RECOMMEND THAT DRIVERS ALWAYS REFUSE TO CONDUCT FIELD SOBRIETY TESTS.
IF YOU ARE BEING ASKED TO GIVE A BREATH SAMPLE IN A DUII INVESTIGATION, OUR RECOMMENDATIONS DEPEND ON YOUR INDIVIDUAL CIRCUMSTANCES. CONTACT OUR OFFICE IF YOU HAVE QUESTIONS ABOUT THE BREATH TEST.