In determining whether a driver is intoxicated, police officers use a variety of clues, tests, and machines. However, the most effective tools they use are their mouths. Officers do not ask casual questions, they gather evidence.

Police will ask several kinds of questions. “Have you have had anything to drink?” “How much have you had to drink?” “When did you have your last drink?” “Where did you drink?” If nothing else, they want you to talk to them so that they can tell whether you are slurring your speech or giving incoherent answers. Do not answer any questions.

During a traffic stop, an officer may or may not have the right to order you to do any number of things including asking you to step out of your car or searching you and your car. However, even if an officer does not have the legal right to do something, he can always ask and get permission.

Legally, there is a fine line between an officer ordering you and an officer asking you to do something. If you ever have any doubts about whether you are required to obey police officers, clearly and politely ask them whether they are ordering you.

If they are not ordering you to do something, you can decline. If they are ordering you, politely obey the order and hire a good DWI attorney. Any evidence found by violating the driver’s rights may not be admissible in court.

Police officers look for erratic driving, empty or open alcoholic beverages, glassy or blood shot eyes, slurred speech, or loss of balance. When they see any combination of these things, they may decide to ask you to perform a field sobriety test (FST).

FSTs are a series of completely voluntary exercises or tests used to determine sobriety. Many of these tests are difficult and can easily be failed by a sober person. You are not required by law to submit to an FST. The police cannot make you take them. Never take an FST.

If an officer orders you to take an FST, the results of that FST may be excluded from evidence at your trial. If you feel that the officer in your case pressured or manipulated you into taking a FST notify your DUI attorney immediately.

The FSTs used by the police in Virginia vary between regions, jurisdictions, and individual officers. Often, officers use variations of the same test that may or may not be more complicated. Most of the tests examine two things: 1) muscle control and 2) ability to follow instruction.

Do not take a FST. FSTs are meant to be difficult, and some sober people cannot pass them. Because these tests measure the ability to follow instructions, the tests begin as soon as the officer is speaking. Failing to follow any instruction is considered evidence of intoxication.

Some of the typical tests include:

•  walking heel-to-toe on a straight line, and then turning and walking back a specific number of steps

•  standing on one leg without moving your arms and legs

•  saying the alphabet, starting from a random letter and progressing forward

•  counting between two given numbers, either forward or backward

•  touching your nose

•  touching your thumb and fingers in a specific order

•  performing the Rhomberg Balance test (close your eyes, tilt your head back, and stand still for 30 seconds)

•  the Horizontal Gaze Nystagmus (HGN).

Of course, performing the physical aspects of these tests gracefully is important, but the driver must also follow the instructions exactly. Often, the police officer will talk quickly over the noise of traffic, and the driver must try to pay attention while under a large amount of stress.

Wind, rain, snow, temperature, lighting, headlights, gravel, uneven pavement, lightning, thunder, passengers, language barriers or even the police officer can distract the driver and cause him to fail.

Do not be bullied into taking a Field Sobriety test. They are 100% voluntary and drivers never do as well as they think they will. If you have a physical or mental condition that prevent you from performing well on these tests, do not take the any of the tests and tell the officer about your condition.

There is one FST that does not have anything to do with coordination and little to do with instructions: the Horizontal Gauze Nystagmus (HGN) test. Nystagmus is when a person’s eyes quiver involuntarily. Everyone’s eyes exhibit at least a minimal amount of nystagmus under natural conditions but this shaking can become exaggerated under certain conditions, including intoxication.

Police officers will perform this test by asking the driver to follow a finger or a pen visually as it is waved back and forth in front of the driver’s face. They will often shine their flashlight in the driver’s eyes while doing this in order to observe any eye tremors.

The HGN test is actually several tests (sometimes including the vertical gauze nystagmus test). The officer first looks for a lack of “smoothness” as the eyes track back and forth. The officer then looks for tremors when the eye is looking to the extreme left and right. Finally, the officer looks for tremors while the eyes look toward each other at an angle of less than 45 degrees. The driver will be utterly unaware of whether or not their eyes are shaking, and the shaking is uncontrollable.

HGN can be caused by preexisting medical conditions or onsite conditions, but few who have it know that they have it, and thus most people cannot inform the police of preexisting HGN. Because of this, drivers should not submit to an HGN test.

There is rarely anything to be gained by taking any FST. FSTs are voluntary; you do not have to take them. Refusing to take an FST is very weak evidence of guilt.