Field Sobriety Tests: “No, thank you. North Dakota law does not require me to take these tests.”
Last year I wrote an important article on standardized field sobriety tests. In this article, I want to focus on improper testing procedures by law enforcement officers. As noted in the previous article, this is one of the main reasons you should not take the field sobriety tests. I want to focus on this particular issue because over the last year, I have observed numerous, troubling deviations from the approved scientific method.
The Horizontal Gaze Nystagmus test, the Walk and Turn test, and the One Leg Stand test are all scientific tests. However, they are only scientific tests if the officer follows the approved scientific method for conducting the particular test. If the officer deviates from the scientific approved method, then the test is no longer valid, reliable, or accurate. In short, the “test” is no longer based on science, but becomes an exercise in junk science.
As noted in my previous article, “even if the officer does not following testing procedures, the tests will be admissible, at least in the administrative hearing.” Unfortunately, everything is admissible at the administrative hearing. Even if the officer testifies that he conducted the test contrary to the approved method. For example, recently, a Fargo police officer admitted that he conducted the Horizontal Gaze Nystagmus test contrary to his training and the scientific approved method. The hearing officer did not care. It was admitted into evidence. However, Cass County District Judge Tom Olson recently disagreed. Judge Olson ruled that the test and test results were not admissible because the scientific methods were not followed.
Recent knee and back surgeries, recent leg injuries, and being over the age of 65 are all scientific factors which should exclude the performance of the Walk and Turn test and the One Leg Stand test. Over the last year, I have observed these facts in various cases. Unfortunately, in each and every case, the hearing officer has allowed these test results to be admitted despite the science.
In sum, the general rule is that a person subject to a DUI investigation should not take the standardized field sobriety tests. “No, thank you. North Dakota law does not require me to take these tests.”
There are always exceptions to the rule. For example, if you are a great athlete, have only consumed two drinks, and you believe that you will pass the tests, then it would be acceptable to perform the Walk and Turn test and the One Leg Stand test. But even then it is somewhat risky because you do not know if the officer will follow the approved scientific method during the tests.