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Challenging a Nevada DUI Field Sobriety Test

  • By: Mace J.
  • Published: December 19, 2019
Challenging a Nevada DUI Field Sobriety Test

How To Challenge The Results Of A Field Sobriety Test (FST) After A DUI Arrest In Nevada

In the state of Nevada, it is illegal to operate a vehicle while under the influence of drugs or alcohol. The majority of arrests for Driving Under the Influence (DUI) occur after a field sobriety tests (or more commonly called ,roadside tests) When a police officer pulls a driver over and suspects that they are intoxicated, they will ask them to perform a series of actions on the side of the road. These actions are designed to test their physical and mental capabilities to see if they are impaired. To pass the test, all of the actions must be completed correctly. This post takes a closer look at Nevada’s field sobriety tests, including how you can challenge the results in court after a DUI arrest.

An Introduction To Nevada Field Sobriety Tests (or Roadside tests because they are performed on the side of the road)

The field sobriety tests that are used  in the state of Nevada are provided by the National Highway Traffic Safety Administration (NHTSA). These tests allow police officers to determine how intoxicated a driver is. But, just because you do not  perform these roadside tests well does not automatically mean that you are intoxicated. Sometimes people have medical conditions  that affect their performance of these roadside tests. The three types of tests are outlined below.

1. The Horizontal Gaze Nystagmus Test (HGN)

Officers conducting this test use a pen or their finger  to track the gaze of a driver who is suspected of being intoxicated. The driver’s eyes should be able to follow his pen or his finger from one side to the other.. If the driver’s pupils noticeably jerk during the test, it is a strong indication that they are intoxicated. This test can also be conducted with other objects besides pens and fingers,  if the officer so chooses.

2. The Walk-And-Turn Test (W&T)

During this test, the driver is asked to walk in a line, putting one foot directly in front of the other. They are required to take nine steps in one direction. They must turnaround  quickly using little steps  and go back the same way, taking another nine steps. During the test, the driver is required to leave their arms down at their side. They are also instructed  to count out each step as they walk. If the driver can’t walk in a straight line, has to stop, or stumbles because of balance issues, it could be a sign that they are under the influence of alcohol or drugs. However many people can not perform this test ,stone cold sober.

3. The One-Leg Stand Test (OLS)

The one-leg stand is arguably the most difficult portion of a typical Nevada field sobriety test. During this test, the driver is asked to stand on one leg, holding their other foot 6 inches above the ground. They are told to  stand in that position long enough for them to count to 30.Some-times the officer will say count one, one thousand, two, two thousand, etc If the driver loses their balance or is unable to keep their foot off the ground, it could be a sign that they are intoxicated. However many people also can not perform this test ,stone cold sober.

Anyone who is suspected of driving under the influence will usually be asked to perform these tests. As a driver, you have the right to refuse a field sobriety test. Many people think  that refusing to take the test could reflect negatively on you, making it harder to get a good outcome in your case. I disagree. I don’t think taking the FSTs helps you at all. Remember it is the officer’s subjective observations that are entered in his report. If he suspects that you are under the influence that will affect his evaluation of your performance.

Along with the field sobriety test, the police officer may use a breathalyzer to evaluate your blood alcohol content. Depending on the circumstances or the practices of the officer, they may also request chemical testing to establish more evidence that you are intoxicated. Do NOT take a portable breath test at the scene. They are inherently unreliable and in Nevada the actual reading is inadmissible. However if arrested you should take a breath or a blood test at the police station if you don’t you will lose your license for at least one year.

Can Certain Factors Influence The Outcome Of A Nevada( Roadside)  Field Sobriety Test?

Even though tests like these are standardized, their accuracy levels are far from perfect. Information published by the National Highway Traffic Safety Administration, for instance, shows that the accuracy of the walk-and-turn test is just 68%. Inaccuracies can occur for many reasons with this test. In some cases, people simply aren’t coordinated enough or lack the dexterity to perform the test correctly .Or they may be suffering from a medical condition such as vertigo or  tinnitus ( ringing in the ears) Or they may have an ear infection that affects their balance. In other cases, the officer may fail to administer the test the right way, so the results are not trustworthy.

Drivers with obesity issues or medical problems may also struggle to pass  standard field sobriety tests. The location of the test can also affect the outcome. For instance, if the roadway has a lot of bumps or dips, walking in a straight line without stumbling is much more difficult. In  addition, sometimes the tests are conducted on the side of a busy freeway with cars zipping by at a high rate of speed or when it is really cold and people may shiver. This will adversely affect their performance

Can You Challenge A Field Sobriety Test In Court? YES!

If your DUI case goes to trial  in the state of Nevada, you have a right to challenge the results of your field sobriety tests. Since the accuracy of these tests is relatively poor, you can use that as part of your defense. Some of the ways that you could argue against the validity of the results of the test include:

1. Calling the accuracy of the field sobriety test into question. The accuracy of field sobriety tests is far from perfect. If the police officer administered the tests incorrectly or if they asked you to perform tests that they shouldn’t have, you can also use those points as part of your defense.

2. The police did something unlawful after the stop. For instance, if the police officer forcibly removes you from your vehicle, that is against the law. You could use that to get the DUI charges thrown out. Any other conditions that could have affected the results of the test should also be mentioned.

3. You weren’t driving under the influence. If you weren’t intoxicated while you were driving, you weren’t breaking the law. In that case, the field sobriety test should never have been administered.

4. You had a bad collision, your airbag went off and you have a concussion. This will affect your ability to follow instructions and do the tests properly.

5. You were really fatigued. Legendary Green Bay Packers football coach, Vince Lombardi said “Fatigue makes cowards of us all. It could also affect your ability to do Field Sobriety tests.

Any errors in the testing process could cause you to get arrested or convicted of driving under the influence. If you have been wrongly charged as a result of a field sobriety test, reach out to a DUI lawyer in Las Vegas to make sure that you have the most effective legal defense in Nevada to challenge your arrest in court.

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About the Author Attorney Mace Yampolsky has been achieving successful outcomes
during pre-trial negotiations as well as in the courtroom, defending
clients on nearly all types of criminal defense cases.

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