Introduction to Field Sobriety Exercises in Florida

Offered by The Defense Group
A DUI Defense Law Firm

WARNING!! While the information that follows is important and informative, the most important piece of information is our recommendation. NEVER, EVER TAKE THESE FIELD SOBRIETY EXERCISES! The officer has already decided to arrest you when he or she asks you to participate in these. NOBODY does well enough to help their case or change the officer’s decision to make an arrest. The ONLY purpose of these exercises is to strengthen their case against you. DON’T HELP THEM! Just say NO!

For those readers who have already made the decision to take these exercises when stopped by the police, the information below is offered to show that all hope is not lost.

What Are Field Sobriety Exercises?

The “Field Sobriety Exercises: are a set of three standardized physical and cognitive tasks designed to assess a person’s level of impairment. The National Highway Traffic Safety Administration (NHTSA) has designed and approved three primary exercises: 

• the Horizontal Gaze Nystagmus (HGN), 
• the Walk and Turn W&T), and 
• the One-Leg Stand (OLS), 

 These exercises are designed to measure coordination, balance, and the ability to follow instructions. Often referred to as “FSEs,” they were designed by NHTSA at the request of the International Association of Chiefs of Police. Right! The cops funded this project in order to get three standardized exercises on which almost everybody would show “clues of impairment.” 

In Florida, these exercises are commonly used during DUI Stops, purportedly to help officers determine if a driver is under the influence. In reality, the police have almost always made the arrest decision prior to offering the FSEs. Their real motive is to try to collect more admissible evidence to use against the driver. The results of these exercises can serve as evidence in court, making it crucial to understand their implications. If you are reading this after already making the mistake of participating in the FSEs, the information below can help you better understand the exercises and possible defenses. If you refused to take these when stopped or if you have not yet had the opportunity to make this decision, don’t take them! Ever!!

Exactly What are Field Sobriety Exercises? 

Field Sobriety Exercises are “standardized” exercises used by law enforcement to assess a person’s impairment due to alcohol or drugs.

NHTSA publishes a comprehensive manual explaining each of these exercises and the way they are to be correctly administered. There is a “Standard” version of the Manual, and also an “Instructor’s Manual.” Each exercise has its own set of criteria and indicators of impairment. Let’s dive into the specifics of each exercise to better understand how they work and what officers are looking for during a DUI stop.

The first exercise, the Horizontal Gaze Nystagmus (HGN) Exercise, focuses on eye movements. 

The second, the Walk and Turn exercise (W&T), evaluates balance and the ability to follow instructions. 

Finally, the One-Leg Stand (OLS) exercise also assesses balance and coordination.

The police (and the prosecutor) claim these exercises are objective measures of impairment, but various factors will influence their accuracy, including medical conditions and environmental factors. Understanding these exercises can help your attorney better navigate the legal maze if you ever find yourself in a DUI situation. The police often use a series of filtering questions that an officer is supposed to ask regarding any medical conditions, physical limitations, past surgeries, current prescription medications, and other reasons that may disqualify a driver as an appropriate subject for the use of these exercises. You are not required to answer (and should not answer) ANY of these questions! I used to teach DUI topics to the police in the Police Academy. The real reason for these questions is to take away possible defenses you might try to assert later. It is a trap!

Horizontal Gaze Nystagmus (HGN) Exercise

This is the exercise the cops claim is most science-based. The Horizontal Gaze Nystagmus (HGN) exercise is one of the most commonly used field sobriety exercises in Florida. This exercise was already a useful tool in emergency rooms across the nation. It was designed to help ER physicians diagnose concussions in patients who may have suffered head trauma. This is a reason that this exercise is not appropriate for anyone who has recently been involved in a car accident. This exercise involves observing the eyes of a suspect as they follow the horizontal movement of an object, such as a pen or flashlight. The office holds an object (often a pen or stylus) in front of a driver, instructing them to keep their head facing straight ahead but to follow the pen with their eyes. The officer then looks for involuntary jerking of the eyeball, known as nystagmus, which becomes more pronounced when a person is under the influence of alcohol. Note that the primary concern is jerky eye movement as the pen or other object is moved smoothly and “horizontally” left to right, multiple times. There is also a condition known as “vertical nystagmus,” but it is less relevant to impairment from alcohol. A reminder—never take this exercise.

Indicators of Impairment in HGN Exercise

During the HGN exercise, the officer will look for “clues of impairment.” To do this they look for three specific indicators in each eye:

• Inability to follow a moving object smoothly: 

When a person is impaired, their eyes may exhibit jerky movements rather than smooth tracking.

• Distinct jerking when the eye is at maximum deviation: 

This refers to the pronounced jerking that occurs when the eye is moved as far to either side as possible. As a party trick, you can have someone who appears to be impaired look at a pen or finger that is about 45 degrees to the left or right of their straight-ahead view. Ask them to keep the pen in view at that position. As you watch their eyeballs, you will see them giggle or vibrate as the nerve endings fight to return to straight ahead. Don’t let that person drive home. If you are that person, don’t drive home.

• Onset of jerking prior to 45 degrees of center: 

If the jerking begins before the eye has moved 45 degrees from the center, it is considered (by the police) as a clue of impairment.

If two or more clues are observed between the two eyes, the suspect is predicted to have a Blood Alcohol Concentration (BAC) of 0.08 or greater.

Exactly What is the Horizontal Gaze Nystagmus (HGN) exercise? 

The HGN exercise is a field sobriety exercise where an officer observes the suspect’s eyes for involuntary jerking while following a moving object. The theory is that any involuntary jerking is evidence of possible alcohol impairment. Again, to avoid the “argument,” just refuse to take the exercise!

It’s important to note that while the HGN exercise is a valuable police tool, it is not infallible. Several factors can affect the results, including medical conditions, past medical history, and certain medications. For instance, seizure medications, barbiturates, phencyclidine, inhalants, and other depressants can all influence nystagmus. Ambien, sometimes prescribed as a sleep aid, can also affect performance.

Therefore, understanding the limitations and potential errors in the HGN exercise is crucial for anyone facing DUI charges. I know I keep repeating this, but if you simply refuse to participate, none of this will matter. Just say NO!

Common Mistakes in Administering HGN Exercise

Even though the HGN exercise is designed to be “standardized,” mistakes can still occur during its administration. Some common errors include:

• Improper Instructions: The officer may not provide clear or proper instructions, leading to confusion and incorrect performance by the suspect. Today it is common for there to be video/audio footage of the administration of the exercises, so an experienced DUI defense attorney can attack the officer’s errors.
• Incorrect Positioning: The officer must position the object at the correct distance and height from the suspect’s eyes. Failure to do so can affect the exercise results. An experienced attorney watching a video of the FSEs may be able to see this error. Again, a body cam video from the cop administering the exercise can be evidence of police errors.
• Environmental Factors: Poor lighting or distractions can impact the suspect’s ability to follow the object accurately. These exercises are most frequently administered at night, when the surroundings are dark, passing headlights are distracting, and flashing emergency lights interfere. 
• Medical Conditions: Conditions like eye disorders, brain tumors, multiple sclerosis, and recent head injuries can cause nystagmus, leading to false positives. Even the use of contact lenses can interfere. 

Given these potential issues, it’s essential to have an experienced DUI attorney who can review the administration of the HGN exercise. Challenging the accuracy and reliability of the exercise can be an important defense strategy. Let me say it again—if you have not already done so,— Never take these exercises.

Legal Defenses Against HGN Exercise Results

Experienced DUI defense attorneys at The Defense Group have the skill and training to attack these results. Several legal defenses can be employed to challenge the results of the HGN exercise. These include:

• Attack The Officer’s Training: Only officers certified to administer and interpret the HGN exercise should present its results in court. If the officer lacks proper certification, your lawyer can move to exclude the testimony, and the evidence can be deemed inadmissible. Information on individual officer training can be obtained through a Public Records Request under Florida Statutes (Chapter 119.)
• Highlighting Medical Conditions: An experienced DUI defense attorney from The defense Group can demonstrate that medical conditions, rather than alcohol impairment, caused the nystagmus. This can weaken the prosecution’s case. Diabetes, inner ear problems, seizure disorders, and other circumstances can offer an alternative explanation for any observed impairment. 
• Pointing Out Exercise Errors:  We can draw attention to any deviations from the standardized exercise procedures and use these departures to challenge the validity of the exercise results.
• Pointing out that the exercises call for extraordinary body positions and balance skills that are not reflective of “normal faculties” is another way to attack these exercises.

Your attorney’s ability to understand the intricacies of the HGN exercise and its potential vulnerabilities can dramatically impact your defense strategy. While the HGN exercise is a widely used tool in DUI investigations, it is still vulnerable to attack. By understanding its limitations and potential errors, your DUI defense attorney can better navigate the legal defense architecture and build a robust defense. If you find yourself facing DUI charges, it’s crucial to seek the expertise of a skilled DUI attorney who can challenge the evidence and protect your rights. You can reach an experienced DUI defense attorney at www.defensegroup.com/dui , or call 321-DEFENSE.  By the way—did I mention—NEVER PARTICIPATE IN THESE EXERCISES!!

Walk and Turn Exercise

The Walk and Turn (W&T) exercise is another well-known standardized field sobriety exercise used in Florida DUI investigations. When you see video on TV, this is the exercise most frequently shown. This exercise requires the suspect to stand in a stationary, uncommon, and awkward position, while the officer explains the exercise. It then requires the subject to take nine steps, heel-to-toe, along a straight line, turn using “baby steps”, and return in the same manner. During each of these steps the suspect is required to (1) watch his or her feet, (2) count the steps out loud, (3) keep your feet on the line, (4) touch heel to toe on each step, and (5) keep both hands within 6” of their sides. After the 9th step, the suspect is instructed to take a series of “baby steps” to execute a turn. This is not the way people have learned to turn around their entire lives. It has nothing to do with a “normal faculty.” Additionally, the suspect must not start by taking the first step until specifically instructed to do so. In total there are 93 possible opportunities for the test to show a “clue of impairment.” The officer looks for several indicators of impairment during this exercise. This exercise is totally unfair. If you show 2 clues of impairment, you fail. You got 91 of 93 steps correct, but you fail! If this were a “test” you would pass with an “A” (a 97.8% score). This further underscores why you should never take any of these exercises.

Clues of Impairment in Walk and Turn Exercise

The Walk and Turn exercise assesses the suspect’s ability to follow instructions and maintain balance. The officer will look for the following clues:

• Inability to keep balance while listening to instructions: If the suspect struggles to maintain balance while the officer is giving instructions, it could indicate impairment. Remember that the initial position is totally abnormal. Nobody stands that way in their ordinary life. 
• Starting the exercise before instructions are finished: Impaired individuals might begin the exercise prematurely, indicating difficulty in following directions. Your instruction to wait until instructed is given at the very beginning, while you are trying to figure out how to balance like walking a tight wire. Not recalling that instruction later, after the entire exercise instruction has been given is deemed a clue of impairment. 
• Stopping while walking to regain balance: Pausing during the exercise to regain balance is a sign of potential impairment (or so the cop will testify!)
• Not touching heel-to-toe: Failing to walk heel-to-toe can indicate a lack of coordination, often linked to alcohol impairment. Almost touching the heel of one foot to the toe of another is not good enough.
• Failure to count each step aloud.  Right! You can perform all of the physical tasks perfectly, but if you forget to count aloud, each step on which you fail to sing out counts as a separate clue of impairment.
• Using arms to balance: Extending arms for balance is another indicator of difficulty maintaining stability. All you have to do is allow an arm to move more than 6” from your side for the cop to count it as a clue of impairment.
• Losing balance while turning: Struggling to turn smoothly can suggest a lack of motor control. You are asked to turn in a manner that is uncommon, but if you hesitate, or seem to have a balance problem, the argument is that you are too intoxicated to drive.
• Not using the “baby step” method of turning. Your whole life you have used a “pivot” turn like the military or a marching band to turn 180 degrees. If you turn “normal” instead of this silly method described by the cop, they conclude you must be intoxicated.
• Taking an incorrect number of steps: Not following the exact number of steps instructed shows an inability to adhere to simple directions. Yea. An early turn or a 10th step means that you are too impaired by alcohol to drive.

Exhibiting two or more of these 93 clues suggests a BAC of 0.08 or greater. Does this help explain why you should never, ever take these exercises?

The Walk and Turn exercise is also considered a “divided attention” exercise. This means it requires the suspect to focus on both mental and physical tasks simultaneously. NHTSA claims that sober individuals typically find this exercise straightforward, but those impaired by alcohol or drugs may struggle with the coordination and concentration required. In fact, the skills needed to do well on these exercises have little to do with the ability to safely drive a vehicle. 

Common Mistakes in Administering the Walk and Turn Exercise

Despite its “standardized” nature, errors can occur during the administration of the Walk and Turn exercise. Common mistakes include:

• Improper Instructions: If the officer does not provide clear and concise instructions, the suspect may perform the exercise incorrectly.
• Incorrect Line: The exercise requires a straight line, but if the line is uneven or not clearly marked, it can affect the suspect’s performance. Officers have been known to try to use a crack on the pavement which is uneven. 
• Environmental Factors: Poor lighting, uneven surfaces, or adverse weather conditions can impact the exercise’s accuracy. Remember that the side of the road is almost never a “level” area. That’s why water runs off of the roadway. The roadway is crowned, and the steepness of the crown is greatest the nearer you are to the side of the road. So, most drivers are asked to perform these exercises on a hill, while other traffic drives by creating a wind or burst of air that pushes them downhill. 
• Medical Conditions: Physical disabilities, prior surgeries, being overweight, inner ear issues, or injuries can affect a suspect’s ability to perform the exercise correctly. The undiagnosed result of a recent car accident can also affect your performance. 

An experienced DUI defense attorney can point out to a jury all of these problems. 

Remember, it makes no difference what the cops or the State would like to argue if you NEVER TAKE THE EXERCISES.

One-Leg Stand Exercise

The One-Leg Stand exercise is the third “standardized” field sobriety exercise designed by NHTSA. In this exercise, the suspect is instructed to stand on one leg, approximately six inches off the ground, and count aloud by thousands (e.g., one thousand-one, one thousand-two) until told to put the foot down. The officer times the subject for 30 seconds and looks for clues of impairment.

During the One-Leg Stand exercise, the officer will look for clues of impairment such as: 

• Swaying while balancing: Difficulty maintaining a steady stance can indicate impairment. Yea! It is completely normal for people to stand on one leg while being intimidated by a cop.
• Using arms to balance: Extending arms to maintain balance is a sign of potential intoxication. Isn’t using your arms for balance the “normal” response to losing your balance?
• Hopping to maintain balance: Hopping is an attempt to regain stability, which can suggest impairment. I’m pretty sure this is another “normal” response to losing your balance when standing on one foot.
• Putting the foot down: Lowering the raised foot before the exercise concludes indicates difficulty maintaining balance. Surprise! There are people that find this exercise so abnormal, and unpracticed, that they sometimes have to put a foot down in less than 30 seconds.

Exhibiting two or more of these indicators is claimed to suggest a BAC of 0.08 or greater. The cumulative total of impairment indicators from all three exercises provides the State with added evidence in DUI cases. These exercises are almost impossible to perform flawlessly, and therefore you should NEVER agree to take them. 

Common Mistakes in Administering the One-Leg Stand Exercise

Despite its standardized nature, errors can occur during the administration of the One-Leg Stand exercise. Some common mistakes include:

• Improper Instructions: If the officer does not provide clear and concise instructions, the suspect may perform the exercise incorrectly.
• Environmental Factors: Poor lighting, uneven surfaces, or adverse weather conditions can impact the exercise’s accuracy.
• Medical Conditions: Physical disabilities, inner ear issues, or injuries can affect a suspect’s ability to perform the exercise correctly.

These factors can introduce significant variability into the results. If you were too impaired to remember to refuse the exercises, it is crucial to have an experienced DUI attorney who can challenge the administration and interpretation of the One-Leg Stand exercise. 

Legal Defenses Against One-Leg Stand Exercise Results

There are several legal defenses that can be employed to challenge the results of the One-Leg Stand exercise. These are identical to the defenses listed above for the other exercises. Remember that the very best defense is to refuse to take the exercises in the first place.

Impact of Medical Conditions on One-Leg Stand Exercise Performance

Medical conditions can significantly affect a person’s ability to perform the One-Leg Stand exercise. Conditions such as inner ear disorders, musculoskeletal problems, neurological issues, and can all impair balance and coordination. Additionally, age and weight can also play a role in a person’s ability to successfully complete the exercise. If you are over 60 years old or over 30 pounds overweight, these exercises may not be valid in predicting impairment from alcohol. When we advise that you refuse to participate in the exercises, remember that this advice also applies to answering any questions from the officer. Questions about your medical history are intended to take away potential defenses. 

While we have continued to caution against taking the FSEs, an even more important caution is this –NEVER TALK TO THE COPS WITHOUT AN ATTORNEY PRESENT. An officer will not ask you a question unless they hope that your answer will help them arrest and convict you. Don’t help them!

If you did answer any questions from the officer, it’s essential to communicate any medical conditions to your attorney, as this information can be helpful in challenging the exercise results. 

How to Challenge the One-Leg Stand Exercise in Court

An experienced DUI defense attorney can challenge this exercise in court. Challenging the One-Leg Stand exercise in court involves scrutinizing the officer’s administration of the exercise, the suspect’s medical conditions, and any environmental factors that may have influenced the results. An experienced DUI attorney can use these factors to cast doubt on the reliability of the exercise and potentially get the evidence dismissed.

While the One-Leg Stand exercise is a widely used tool in DUI investigations, it is not without its flaws. By understanding its limitations and potential errors, you can better navigate the legal landscape and build a robust defense. If you find yourself facing DUI charges, it’s crucial to seek the expertise of a skilled DUI attorney who can challenge the evidence and protect your rights.

What are the penalties for refusing a field sobriety exercise in Florida?

There is no penalty in Florida for refusing the FSEs. Refusal to take an approved test for alcohol can result in a 1-year suspension of your driving privilege for a first refusal and up to a year in jail for any subsequent refusal. There is no comparable sanction for outright refusal to do the “silly animal tricks” (FSEs). Don’t let an officer mislead you or bully you into taking these exercises!

How can medical conditions affect field sobriety exercise results?

Medical conditions can significantly impact the results of field sobriety exercises. Conditions such as inner ear disorders, neurological issues, and musculoskeletal problems can impair balance and coordination, leading to false positives for impairment. It’s crucial to inform your attorney about any medical conditions that could affect your performance on these exercises. 

Are field sobriety exercise results always admissible in court?

No! Field sobriety exercise results are not always admissible in court. Their admissibility can be challenged based on the officer’s training, the conditions under which the exercise was administered, and the suspect’s medical conditions. An experienced DUI attorney can use these factors to argue against the inclusion of the exercise results in court. 

CONCLUSION:

We have tried to offer you an overview of the design and use of Field Sobriety Exercises in Florida. We hope that this information is helpful to those readers who have already been arrested and who decided to participate in the FSEs. These exercises are a powerful tool in the police arsenal, but there are ways for an experienced DUI defense attorney to attack the observations.

If you are fortunate enough to be a reader prior to any DUI arrest (and in any event before any future DUI stop), then our advice in dealing with the police is rock solid and consistent.

1. Never, ever talk to the police when they initiate the conversation. Whether stopped while driving, approached at home, or at work, or confronted in public, if the police are initiating the contact, then NEVER ANSWER ANY QUESTIONS WITHOUT AN ATTORNEY. 
   1. Be polite and soft-spoken. “Sir” or “Ma’am” is fine (don’t worry about “mispronouning” or “misgendering” anyone.) 
   2. Do not even answer to deny an accusation of misconduct. That is a temptation. Simply advise the officer that you elect to invoke your right to remain silent—and then remain silent. 
   3. Be politely uncooperative.
   4. Stand your ground—you really do not have to answer their questions.
   5. When in doubt, “Shut up!”
2. Refuse consent to search you, your vehicle, or any of your property. They may search anyhow, but don’t let them off the hook by agreeing.
3. If you have a smartphone, video your entire interaction with the cops. You have the right and they do not have the right to make you turn it off. You are not required to delete anything you have already recorded.
4. Never try to participate in the Field Sobriety Exercises.

WHY THE DEFENSE GROUP?

Experience-There are many law firms in Central Florida that advertise DUI Defense as one of their areas of practice. Websites are good but we know they are just a form of advertising. They are authored and designed by the firms to showcase their value. Direct referral by a friend who has used a firm in the past is good, but usually, the firm they recommend is the only firm they have ever had to deal with. They have no context to compare that firm with any other. The Internet offers tools you can use to try to make an informed decision. Google Reviews is a pretty good indicator, but the best firms may not be the same firms that aggressively seek and harvest reviews.

A few important factors to consider:

• Experience: The Defense Group has four lawyers with a combined legal experience of over 140 years. We will gladly compare that to any criminal defense law firm in the State. Not all experience has the same value. Look for relevant experience. The lawyers at The Defense Group include the following in their respective resumes:
  • Former police officer and Police Sgt. with 10 years of law enforcement experience. (Included serving as DUI Enforcement supervisor for the Gainesville Police Department.)
  • Made and supervised hundreds of DUI arrests.
  • Former General Counsel to the Orange County Sheriff’s Office for 4 years.
  • Former Police Legal Advisor to 11 different municipal police agencies for 4 years.
  • Past President of the Florida Association of Police Attorneys.
  • Graduate of the FBI National Academy (Quantico Virginia) Course for Public Service (police) attorneys.
  • Certified instructor in the FDLE Regional Police Academies, teaching DUI-and law-related topics.
  • Adjunct Professor in the Masters in Criminal Justice program at Rollins for 2 years.
  • Assistant State Attorney for the 18th Judicial Circuit, prosecuting and supervising the prosecution of DUIs.
  • Assistant State Attorney in both the 8th and 9th Judicial Circuits, providing police training. 
  • Assistant Attorney General for the State of Florida.
  • Cumulatively we have successfully represented hundreds of DUI cases over the past 40 years.
• Focus: When you go to a law firm website, look for a tab near the top that discloses “Practice Areas.” See how many areas of law the firms claim to be expert and experienced at. If the firm lists Family Law, Personal Injury, Criminal Law, Immigration, Wills & Estates, etc., you might be concerned about how much focus is on DUI defense. 
  • If you have a heart problem, you should look for a cardiologist. 
  • If you are a diabetic, you might go to an endocrinologist. 
  • A podiatrist would be a good choice if you have a foot problem. 
  • If you needed a neurosurgeon, would you go to a general practice firm of primary care doctors with 200 years of experience in fields of practice unrelated to your neurological issues, or would you go to a firm of neurologists?

 The experience in some firms might be 100 miles wide, but only half an inch deep. DUI and Criminal Defense is what we do. 

• No divorces. 
• No real estate law. 
• No wills or trusts. 
• No personal injury suits. 
• No Workers’ Compensation. 
• No Landlord-tenant cases. 

Support: The attorneys at The Defense Group are members of the National College of DUI Defense, the Florida Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, and the Central Florida Association of Criminal Defense Lawyers.

The experienced DUI defense team at The Defense Group is available to meet and offer a case analysis and strategy session.

Call 407-831-1956, 352-742-9090, or 321-DEFENSE for an appointment.

 Visit us at https://www.defensegroup.com/dui for additional information.