Colin McCallin March 4, 2014

In our DUI practice, we sit down with our clients and discuss the facts of their case with them. One of the questions we often get asked is, “Should I have done the roadside tests with the officer?” The answer is an emphatic no, and this blog shall discuss why.

Roadside tests, also called Standard Field Sobriety Tests (SFST’s for short) are tools that police officers use to determine whether or not a person is under the influence of alcohol, drugs, or both. The most common tests that are used are the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand, although some police officers use other maneuvers, such as having the subject recite the alphabet, or count to 30.

Performance of these tests is completely voluntary on the part of the DUI suspect, meaning that an officer can request to have them done, but there is no penalty or sanction if the suspect refuses.

Police officers like to tell the suspect that they are having the suspect perform the tests to make sure they are OK to drive. However, in most cases, if the police officer is having this person exit his car to perform these maneuvers, the officer has already made the decision to arrest the suspect. They want to take the suspect through the roadside tests in order to bolster their case against the suspect and to further document the officer’s belief that the suspect is DUI. This is how they are trained. Suspects perform the roadsides because they believe that if they do them, they will be let go. This is rarely the case.

Many of my clients have told me, “Colin, I nailed those tests. I was able to do them perfectly and the officer is lying when he says I failed them.” The inherent problem here is that these tests are very subjective, and the cop is the one who has the final say over whether a person passes or fails. In Colorado, most police cars are not equipped with dashboard cameras that would depict the roadsides, so we are also left only with the police officer’s version of events.

The tests are also much more complicated than people realize. The officer will explain how to perform the tests in a very specific way, and the slightest deviation from his directions will result in a “clue,” or indication that the person is under the influence. In other words, officer is not only looking for imbalance or swaying on the part of the suspect, but also whether the suspect can follow directions. A suspect may be able to walk a line perfectly, but if he takes 10 steps instead of 9, the officer may say that he failed. As discussed above, the cop is the one who has the final word over whether the DUI suspect did or didn’t follow directions, not the suspect.

Because of this subjectivity, and because the roadsides are not required by law, we always advise our clients to politely refuse the taking of these roadside tests. The reasoning is very similar to why we advise our clients to remain silent when being questioned by an officer. We have to assume that no good can come from it. While there exists a small percentage of cases where an officer really is on the fence as to make an arrest or not and wants to utilize these tools to assist him in this decision, these circumstances are by far the exception and not the rule.