Question: I live in Cumming, GA and after work I met a friend at a restaurant in Cumming.  I was driving home and a Forsyth County deputy sheriff stopped me.  He said I was speeding and that my tag light was out.  When I pulled over the cop asked for my driver's license and he asked me if I'd been drinking.  I gave him my license and he told me to get out of the car.  He asked me some questions and then asked me to do some tests.  I think I looked pretty bad on the tests because I hurt my back playing football in college and also in a car accident about two years ago.  I don't think those physical tests are valid because I didn't really have that much to drink.  Can they use those against me in court?

Answer: The tests that you took are known as “field sobriety tests.”  Developed by the National Highway Transportation Safety Administration in Washington, D.C., they are utilized by police departments to attempt to determine if a driver is intoxicated.  The battery of tests that have been sanctioned by NHTSA are:

1. One-Leg Stand (OLS) test
2. Walk-and-Turn (WAT) test
3. Horizontal Gaze Nystagmus (HGN) -- eye test

The Forsyth deputy sheriff is supposed to administer the tests properly and then “grade” them.  Grades are provided by the deputy in the form of “clues.”  (A Cumming police officer will administer the same tests when trying to make a DUI arrest.) For instance, on the walk-and-turn test, the deputy may state that he observed 5 of 8 clues.  The amount of clues are alleged to correspond to the driver's level of intoxication.

You wrote that you have back problems.  That could certainly greatly impact your performance on the tests.  (The HGN test, being an eye test, would not, of course, be impacted by a back problem.)  A DUI lawyer would argue that, because of your physical impairment, the OLS and the WAT test should be inadmissible in court or, if they are admitted, that they are of no probative value because of your bad back.  We think it best that a motorist decline to take the field sobriety tests.

We think the tests can make even a sober driver seem impaired, and the tests are not always correctly administered by the police officer.  (A Forsyth deputy and a Cumming police officer will attempt to have a DUI suspect take the field sobriety tests.)

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We at the Sherman Law Group try to answer as many questions as possible on our blog.  If you have a question, email it to us and we'll do our best to answer it.  No names will be used.  Speak to an experienced Cumming and Forsyth County DUI lawyer at the Sherman Law Group by calling 678-215-4106.