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After a driver has been pulled over for suspected drunk driving, officers will typically require a person to complete Field Sobriety Tests.
These tests usually include walking a straight line toe to heel, standing on one leg and counting to 30, and a test called the Horizontal Gaze Nystagmus test, or HGN. Chicago police also frequently ask motorists to touch their nose with their eyes closed and their head tilted back.
The HGN test involves following an object such as a flashlight or pen with your eyes while holding your head still. Almost everyone's eyes will jerk when they are moved far enough to the side. The theory behind the test is that a persons eyes will jerk sooner if the person is drunk. Defense attorneys have argued for years that this test is of dubious reliability, since many other things can cause a nystagmus. In 2007, the Illinois Supreme Court held in People v. McKown that courts cannot take judicial notice of the admissibility of an HGN test. This means prosecutors would have to establish a scientific foundation for the reliability of the test through an expert witness before it can be admitted. To date, our office has not seen this happen.
The other tests do not require experts. Illinois courts have held that no expert testimony is needed nor is a showing of scientific principles required before a jury can be permitted to conclude that a person who performs badly on the field-sobriety tests may have been impaired. Therefore, the officer's subjective observations of a person's performance are admissible.
The easy answer to this question is take them if you will pass them. However, the question is far more difficult than that. As noted above, testimony regarding Field Sobriety tests is easily admitted and consists of the officers opinion that the motorists stepped off of an imaginary line or raised his arms too high while standing on one leg. Refusing to take the tests prevents this. On the other hand, a refusal to submit to field sobriety tests may be admitted into evidence against a DUI defendant. People v. Roberts, 115 Ill. App. 3d 384, 450 N.E. 2d 451, 71 Ill.Dec. 16 (2d Dist 1983). But a person who refuses can then offer his or her explanation. For example, our office recently tried a DUI case in which the defendant explained that during an accident the defendant hit his head and felt too groggy to perform the tests.
Many police agencies remove the subjective element by having video cameras on their squad cars to videotape the tests. Our office has won and lost cases based on tapes. Video does not lie. If there are no tapes, a thorough cross-examination of the officer can be done with the aid of National Highway Transportation and Safety Administration DWI Detection and Standardized Field Sobriety Testing Manual. This manual is used by most law enforcement agencies to train their officers in the proper way to conduct the tests. The manual itself concedes that not administering the tests properly compromises the validity of the results. Steven R. Hunter has effectively questioned many officers and established that they conducted the test incorrectly, thus compromising their conclusion that the driver was drunk.
So in the final analysis, you should take the test if you feel you can pass them, and decline to take them if you doubt you will pass them. If you have any reason to doubt your ability to pass the test based on injury or illness, refuse to take the test and explain to the officer why you cannot perform the test.