In Hawaii do I have to do the Roadside Field Sobriety Tests?
This article will focus on Hawaii law as it stands now with regard to Roadside Field Sobriety Tests. In order to answer this question, you must understand what the tests are, what they are not and how they are used in Hawaii.
Field Sobriety Tests or “FSTs” are a series of roadside coordination tests. In the late ‘70s and early ‘80s, they were tested for efficacy and three were “validated” (that means they correlate to a particular blood alcohol concentration–it does not mean they are “valid”). The three tests are the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and the One-Leg-Stand (OLS).
The HGN is a test where an officer waves a pen or finger back and forth in front of your eyes. You watch the object travel back and forth and if the officer sees a jerkiness (nystagmus) to the movement at specific instances, the officer records this a “cue” or “clue.” The officer is looking for the cues at three different instances in each eye, which gives a total of six cues. The test is not reproducible. There are many innocent reasons for nystagmus. In addition to natural nystagmus nystagmus may also be caused by things including nicotine and caffeine. The tests is totally subjective.
The WAT consists of a person walking a specified number of steps in a particular way down a straight line, turning as indicated and walking back. Make two or more mistakes that the officer is looking for, and you have failed. The test is designed to make people fail. One could do more than 98% of the test properly and still fail. Officers often “double-dip” on cues. In other words, if a person steps off of the line once, that person would also miss touching heel-to-toe. That’s one mistake, but two cues and a failure. In Hawaii, even if the officer and prosecutor cannot later establish that the officer was properly trained, the officer can still testify about his “observations” and that might include a variety of things that are not even cues.
The OLS consists of a person standing on one leg, and counting to thirty. If the person does two or more things that the officer is looking for they are cues. The officer will have told you to do many things and he will still testify to those things that are not cues as well as the cues he says he observed. Although many people cannot do this test in the middle of the day without any alcohol or medicine in their body, the officer will expect you to have the balance of a gymnast. This is again, not able to be reproduced in court. No jurisdiction in Hawaii employs dashcams to record the performance of these tests.
Is performance of the SFSTs a search under the Fourth Amendment?
The Hawaii Supreme Court has not yet answered this question. Different states have arrived at different answers. It seems obvious however that making a person perform decidedly unusual walking and balance acts would expose to the public, and the officer, things about yourself that you do not normally expose to them. Thus it would be a search. A good DUI attorney should challenge even the request to perform the SFSTs. What does this mean to the driver at the side of the road who has to decide whether to submit to the unfair, biased and unusual testing? To answer that question one has to examine how the tests are used in court in Hawaii.
How are SFSTs used in court in Hawaii?
The manuals used to teach police officers SFSTs explain that they correlate to a particular blood alcohol concentration. That is, it can provide probable cause to believe a person has a certain blood alcohol level. The manuals also explain that the SFSTs are done to screen for arrest, again meaning they are to determine if there is probable cause to arrest the person. Unfortunately in Hawaii officers and the court do not separate out the different aspects of the charge of DUI, impairment and blood alcohol concentration. Officers will testify frequently in court that cues observed, or observations from the SFSTs, point to impairment. This is because caselaw and officers have become accustomed to proving the impairment charge based in large part on performance of the SFSTs. The blood alcohol level is based on a chemical test.
If SFSTs are used to prove impairment, am I allowed to refuse to perform SFSTs?
Officers will, upon proper questioning, admit that SFSTs are used to establish probable cause. Officers will however, upon questioning from the prosecutor, testify that performance on the SFSTs proves impairment. Since your performance, geared to be a failure, can be used to establish probable cause for a legal arrest and also to convict you of impairment DUI, there is no benefit to performance of the SFSTs no matter how well you think you will do. There is no crime for refusing to perform SFSTs. There is also currently no court approved inference of guilt based upon refusal to perform the SFSTs. Under current law you may refuse to perform SFSTs. Under current law you should strongly consider refusing SFSTs.
If I refuse SFSTs will I be released?
In all likelihood, no. Police officers are taught that their presence commands obedience. Whether because they are polite or because they become bullies, officers will try everything to get you to agree to do what they want, whether it be a search of performance of SFSTs. At trial an officer will frequently testify that they asked you if you would consent to doing the SFSTs and that you agreed. That is a very flat statement without any context. Clients will often tell me that the officers crowded them, became angry, came nose to nose with them, put them in handcuffs, roughhoused them and took other action when the person either refused SFSTs or contemplated refusing SFSTs. You have the right to refuse to do them. What you are doing when you perform SFSTs is giving the police officer additional information to justify the arrest and convict you later. If the officer has already made up his mind to arrest you, if you refuse you will not be released. Additionally, if the officer was unsure whether or not to arrest you, your refusal will either offend him because you had the guts to stand up to him or will confirm in his mind that you are hiding information and thus are guilty. In many cases, you will likely be arrested anyway. There are certainly many innocent reasons for declining to take the roadside tests other than you believing you may be impaired.
Does refusing SFSTs benefit me?
As discussed above, in many cases initially it may not seem that way because of how the police are treating you. Remember however that what you are doing is making it more difficult for them to convict you. The officer may not like that, but it is certainly in your best interest. Additionally, there is no statutory penalty for refusal of SFSTs linked to your drivers license in Hawaii.
The police cannot physically force someone to walk on a straight line, stand on one leg, or do any of the other roadside coordination exercises. Testing requires a great degree of cooperation from the subject.
Finally, remember that the test looks to the lowest common denominator. If you have a bad back, or had a long day, or that workout from this morning really taxed your legs, none of that is considered and the smallest deviation will be counted against you. Even if you have more significant problems such as documented ruptured disks, recent knee or hip replacement all the officer will say is that he will take it into consideration. They are not taught how to do that and in fact there is no way to do that.
Remember also, while someone can fail a FST, one cannot pass. Even where a person exactly performs every portion of a FST, the result is “inconclusive.” If a person does not take the FSTs, the result is also “inconclusive.” So, the smart thing to do is to start out with the best possible result–inconclusive–and remain there. Declining to take the tests has the same result the same as passing and is the smart thing to do.
About the Author-
Kevin O’Grady has a practice that is more than 90% DUI defense. For DUI criminal charges in Hawaii state and federal courts for the four years preceding 2015 97% of his clients do not have a DUI conviction when the case was finally completed. Originally from New York he has been a reserve Maricopa County Deputy, a Deputy Prosecutor for the city of Scottsdale Arizona, a Special Assistant United States Attorney and Chief Prosecutor for the Ak-Chin Indian Community, Special Assistant United States Attorney and Domestic Violence Prosecutor for the Salt-River Pima-Maricopa Indian Community, A Trial Counsel and Senior Trial Counsel with the United States Army. He is a Major in the United States Army Reserve and a Judge Advocate. He is certified as a JAG to handle all Article 32 Preliminary Hearings as a Preliminary Hearing Officer including Article 120 (rape and sexual assault) cases. He has handled cases from murder to rape to drugs to assault. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. He is also trained on the Intoxilyzer 8000. He is a member of the Arizona State Bar, the Hawaii State Bar, certified under Article 27(b) to appear in Courts-Martial cases, admitted to the State bars of Arizona and Hawaii, the Federal District Courts of Arizona, Hawaii and the Northern District of Texas, as well as the United States Court of Appeals for the Ninth Circuit. He is a member of the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the Hawaii Association of Criminal Defense Lawyers. He is also an Arizona Peace Officer Standards and Training Law Instructor. Mr. O’Grady lives in Kailua with his wife and two sons.
If you would like to contact the author, please visit: http://www.CriminalAndMilitaryDefenseHawaii.Com