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Why was I arrested if I passed the field sobriety test?

Posted by Steven McNicholl | Jun 26, 2019 | 0 Comments

Imagine you are pulled over by a police officer.  You know you have had a drink or two but not enough to make you impaired.  Smelling the alcohol on your breath, the officer asks you to step out of the vehicle.  He tells you, “I want to perform a series of field sobriety tests just to determine if you are OK to drive.”  You think, “Great, I am sober and completely capable of passing this officer's test.”  He tells you to follow his pen from side to side without moving your head.  No problem for you, that is pretty easy.  He tells you to walk heel to toe for ten paces, counting as you go and then turn around and repeat.  Of course you can do that, you are not under the influence and you have great balance.  He asks you to tilt your head back, close your eyes, and estimate when thirty seconds have elapsed.  Well, that is pretty difficult sober but you are able to estimate with only two or three seconds off.  Awesome.  You must have received a passing grade on your field sobriety test, right?  There is no way you will be arrested now.  Well not exactly.

​Is a Field Sobriety Test an Actual Test?

Field sobriety tests are a battery of tests an officer can perform on a suspected driver who is under the influence.  According to some researchers, officers who use the horizontal gaze nystagmus test, the walk-and-turn test, and the one leg-stand test can identify an impaired driver 90% of the time.  That is a great track record.  Is a field sobriety test really a test that can be passed if you perform great?  The answer is no, it is not a pass or fail test at all.  Your performance is only used by the officer an indicator of impairment.  Let me explain why.

Probable Cause for an Arrest

An officer cannot place you under arrest unless he has probable cause that you have or are committing a crime.  If an officer suspects you have are driving while under the influence for example, he must find enough evidence to support his probable cause in order for you to be arrested.  Think about what an officer does when he makes initial contact with you at your car window.  Typically he will ask you if you know why you were pulled over.  Usually you are courteous and roll down your window to answer.  This gives the officer a chance to smell alcohol either on your breath or coming from your car.  He is listening to the way you answer, does he hear slurring of words or confusion in your voice.  He is building facts that he can put in a report that will allow him to further detain you to find more evidence in order to satisfy probable cause.  Each fact is an indicator of possible impairment.  But, by themselves they do not mean you are driving under the influence.  Now to the field sobriety tests and ultimately why you cannot pass or fail.

I passed why I am being arrested?

When you are performing the tests, the officer is observing if you are swaying, that is an indicator of impairment.  He is giving you complex instructions that you must execute.  An inability to perform is an indicator of impairment.  If you fall over or otherwise cannot keep your balance, this is an indicator of impairment.  If you ask the officer to repeat instructions multiple times, that is an indicator of impairment.  Do you see the pattern now?  The tests do not really matter at the end of the day.  The officer is looking to develop his indicator in order to justify arresting you for driving under the influence.  Even if you perform all the tests spectacularly, the officer may observe swaying or maybe you did not here an instruction and asked him to repeat one time.  The officer notes your red eyes.  Sure, maybe you have an excuse for your performance.  Maybe you lost your balance because you stepped on piece of gravel or you were not wearing the most appropriate shoes for a walk-and-turn test.  Maybe you are terrible and estimating seconds.  Read more about Field Sobriety Test (FST) here.

But at the end of the day, everything the officer does is to establish indicators of impairment in his report in order to justify placing you under arrest for driving under the influence.  Your performance on the field sobriety tests is only one small consideration in the entire process the officer is trained to walk you through.  So do not be excited if you feel you are doing excellent on the field sobriety tests and do not beat yourself up if you are having trouble performing as instructed.  DUI's are complicated cases with lots of moving parts.  Your performance on the field sobriety test rarely determine the outcome of your case in court.  There are significantly more important factors that will decide your case.  Read more about DUIs here.

Have you recently been pulled over and been subjected to a field sobriety test?  Call the Law Offices of Steven McNicholl at (951) 405-0990 to receive a free analysis of your case and determine what can be done about your case.

About the Author

Steven McNicholl

Steven McNicholl is a criminal defense attorney serving clients in Southern California.  He has the experience necessary to bring intensity and focus to every case ensuring you receive the dedication and vigorous defense you require in your case.


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