Oregon DUII Collateral Consequences
Oregon DUII Frequently Asked Questions
Oregon Driver's License Suspensions
Oregon Field Sobreity Tests (FSTs)
Oregon drivers stopped and investigated for Driving Under the Influence of Intoxicants (DUII) are almost always asked to perform Field Sobriety Tests (often abbreviated FSTs). Field Sobriety Tests are also often abbreviated and referred to as SFSTs (as-in "Standardized Field Sobriety Tests"). The tests are referred to as "standardized" tests because they are intended to be administered the same way every time they are used, nationwide, based on studies from the National Highway Traffic Safety Administration (NHTSA).
Field Sobriety Tests are supposed to help law enforcement gauge whether or not a given driver may intoxicated and under the influence of alcohol or controlled substances. However, many law enforcement officers in Oregon do not know how to properly administer Field Sobriety Tests in a manner that is both fair to the test subject and scientifically valid. Most officers have gone through, at most, a few days of training and fancy themselves experts in human psychology and physiology.
Most law enforcement officers in Oregon begin field sobriety testing by asking drivers to "voluntarily" get out of their vehicles to "do a few tests." The officer will often say "I just want to make sure you're okay to drive." This statement will often seem to indicate to the driver that the officer wants to driver to do a few tests, but the driver will ultimately may be allowed to drive away. Most officers intentionally mislead drivers with this statement knowing full-well that they will be arresting the driver irrespective of how the driver does on the Field Sobriety Tests.
Officers, especially seasoned officers, are very well practiced in the art and science of deceit. Yes, you read that correctly: Officers are trained to lie and mislead suspects in order to obtain incriminating evidence. Make no mistake about it: drivers who are being investigated for DUII are "suspects" whether they know it or not. One of the most obvious tactics officers will use in investigating drivers for DUII is to ask them "How much have you had to drink?" This question, of course, assumes that the driver has had anything to drink at all. Officers will also attempt to ask "Is there any lawful reason you were speeding?" This is known as a compound question because in answering the question, the person responding is required to accept facts presented in the question (i.e. that the driver was actually speeding). A more subtle and dishonest technique that officers use to mislead drivers is with their body language and hurried speech.
The law in Oregon is clear: the performance of Field Sobriety Tests is akin to consenting to a search. Drivers have an absolute right to refuse Field Sobriety Tests. However, officers almost never tell drivers that they have this right. Instead, officers typically combine body language and smooth talking to attempt to provide further information with the officer can rely upon in making his/her arrest. Here's how it is done: Most officers make their request of drivers for Field Sobriety Tests in an intentionally hurried fashion. Officers will also make the request while stepping to the side of the driver's door with a hand or body motion to indicate that the driver needs to step from the vehicle. The fact of the matter is that the vast majority of drivers who are asked to perform Field Sobriety Tests report later that they had absolutely no idea that they had the right to refuse the tests.
So why would a driver want to refuse the tests? Because they are extremely difficult to do, and most officers are not interested in fully explaining each test to you in sufficient detail for you to understand what you are being asked to do. Would you be willing to take any other complicated physical balancing test in life with less than one minute instruction? Then why would you be willing to take a test that could result in your going to jail with less than one minute instruction?
The first test often given is the Horizontal Gauze Nystagmus Test (HGN). The HGN test measures the involuntary horizontal (i.e. side-to-side) jerking or bouncing of your eyes which increases with intoxication by alcohol. Most officers use a pen or small flashlight (i.e. a stimulus) and ask you to watch the stimulus as they move it back and forth across a horizontal plane. The officer is looking for a lack of smooth pursuit (i.e. that you are unable to keep your eyes smoothly on the stimulus), a distinct and sustained nystagmus at maximum deviation (i.e. that your eyes bounce when looking far off to the corner), and onset prior to 45-degrees (i.e. that your eyes bounce about half-way from looking straight ahead to looking far off the corner).
The HGN test has the ability to be a decent indicator, but it is arguably one of the most difficult tests for and officer to administer correctly. The test subject can't be swaying and there must not be any distractions (i.e. patrol lights or traffic) behind the officer and in front of the test subject. The officer must also keep a steady pace with the stimulus and have a sharp attention for what to look for.
The third test often given is the "One Legged Stand." This test is pretty simple in principal, but when was the last time you balanced on one foot non-stop for 30 seconds before going for a drive in your car? The "One Legged Stand" test is pretty easy to understand, but can still be very difficult to do. Similar to the "Walk and Turn" test, many people with balance problems, or any injuries to their back, legs or feet have no hope passing the "One Legged Stand" test.
The above-described three tests are considered the battery of Standardized Field Sobriety Tests (SFSTs). There are other "non-standardized" tests that can be given, as well as a Drug Recognition Evaluation by a Drug Recognition Evaluator (DRE). If you have been asked to perform these other tests, or for more information, please contact our office at (541) 382-4404.
Romano Law, P.C. and Michael G. Romano are licensed to practice in the state of Oregon only. The information provided on this website is offered for informational purposes only. It is not offered as legal advice and does not constitute legal advice. Romano Law, P.C. does not seek to represent you based upon your visit to or review of this website. This website may be considered advertising under the rules of the Oregon Bar Association. You should not make legal decisions based upon brochures, advertising, or other promotional materials. If you would like to schedule a consultation to discuss a specific legal matter, please contact our offices.