The arresting officer has been skillfully trained to ask questions and collect evidence to prove your guilt, not innocence. You do have the right to remain silent. You should take full advantage of that right. And, you should contact an expert DUI attorney immediately.

If you have had anything more than a very small amount of alcohol to drink, do not submit to any field sobriety tests. All you will be doing is helping the arresting officer to build a case against you. Generally, that is the primary purpose of these tests. Many completely sober people will have difficulty passing the standard field sobriety tests, especially if they are older or overweight.

“Field sobriety testing” (or FSTs) as performed on the streets, roads and highways throughout the United States, is not a scientific indication of a person’s level of intoxication. There are no conclusive studies confirming the results of any field sobriety test to legal intoxication. The best studies show a very questionable rate of accuracy.

Only three of the tests available to police officers have been given any real “scientific” legitimacy by the National Highway Traffic Safety Administration (NHTSA). These three tests are:

  • The Walk-and-Turn Test
  • The One-Leg-Stand Test
  • The Horizontal Gaze Nystagmus Test

All of the other tests are not validated in any official or scientific manner. In fact, many of the tests involve closing your eyes and balancing. Without a visual frame of reference, no “balance” test can truly measure a person’s sobriety or level of intoxication.

Thus, tests such as the well-known Finger-to-Nose Test and the Rhomberg Balance Test should be avoided, if requested to be performed by the police. Other tests, such as counting backwards or reciting the ABCs backwards, or counting one’s fingers in a specified sequence, have no scientifically proven correlation whatsoever to one’s ability to operate a motor vehicle safely.

Officers regularly testify in court that FSTs are gauged to measure “divided attention.” Because, when you drive, you must divide your attention between several tasks at the same time (such as steering the vehicle, breaking, accelerating, navigating, watching for traffic, and signaling). The idea or theory is that alcohol impairs one’s ability to divide his or her attention.

You have the absolute legal right to refuse to submit to field sobriety testing (FSTs). If you decide to take the tests, the officer will make his or her own interpretation and opinion concerning your performance on the tests. Therefore, these tests are in actuality very subjective and non-scientific measures. Also, it is important to keep in mind that the officer is already investigating you for DUI and thus, in all likelihood, is planning to arrest you for a DUI even if you do take the FSTs.


The major downside of refusing to take the field sobriety tests (FSTs) is that the prosecution will argue that you refused out of a “conscious knowledge of guilt.” The district attorney or prosecutor will try to make the judge or jury believe that you refused to take the tests because you knew you were driving drunk and would fail the tests. This issue can be defended.

The other biggest drawback is that the police officer will probably arrest you immediately. However, the officer would likely have arrested you anyway, after the field sobriety tests (FSTs). And, then the police officer would have his or her opinion of your performance on those tests to testify about in court as justification and validation of the officer’s belief that you were, indeed, DUI.

For all of these and many other reasons, it is very important to contact and obtain the services of a highly trained DUI defense attorney specialist, as soon as possible, after being stopped for a DUI. Qualified legal counsel can help you to avoid the common mistakes that people make in these situations. And, a DUI specialist lawyer can also assist you in avoiding the most serious consequences of a DUI arrest. The sooner you can get DUI expert criminal defense attorneys on your case, the better will be the likely outcome. 


In every DUI defense case, Attorney Bartley E. Herron’s first goal is to get the case dismissed. Often this is successful. Every client wants his or her case dismissed and no client wants to have to go to trial. However, if trial is necessary, at Herron Law, LLC we are ready for the task and experienced in obtaining winning trial results.

Failure on the field sobriety tests can be challenged. By carefully reviewing all of the police reports, police officer statements, audio and video recordings of arrests, and laboratory findings of any chemical tests which were also obtained, it is possible to successfully challenge the police officer’s determination of the driver being intoxicated.

The subjective components of the field sobriety test can be magnified and exploited by a trained DUI specialist attorney. The reality that these tests are not true scientific measures can be brought to the jury’s awareness by the expert testimony of a forensic scientist for the defense. A good defense team, with expert forensic scientist witnesses can often educate and convince the court or jury that the prosecution’s case cannot be proven beyond a reasonable doubt – leading to a “not guilty” verdict for the accused defendant.

If you have taken and failed field sobriety tests resulting in your arrest for DUI, it is especially important for you to contact a DUI defense expert attorney, at once. Attorney Bart Herron is in court nearly everyday successfully defending persons accused of DUI. He can put his skill and knowledge to work for you. Herron Law, LLC has an excellent defense team. Please call us right now, so we may best help you to successfully get out of the mess you are currently in.