OWI Defense Starts with Challenging the Standard Field Sobriety Tests in Wisconsin OWI Cases
Any OWI defense attorney will tell you that a big part of an officer’s decision to arrest you is the field sobriety tests they ask you to perform. So obviously, an aggressive OWI defense includes challenging those tests. Anyone who has had the pleasure of taking these tests knows the difficulty in “passing” them. Although the filed sobriety tests do not seem overly difficult, they are very subjective. That means your ability to properly complete the FSTs is open for interpretation.
Standard Field Sobriety Tests in Wisconsin
There are three standard field sobriety tests in Wisconsin. Although some individuals are asked to say the alphabet backwards, or from the letter C to Q (without signing!), those are not that common. The following three tests are common and are the standard tests given in drunk driving arrests.
- Horizontal Gaze Nystagmus – HGN
- Walk and Turn
- One Leg Stand
For each one of these FSTs, the officer is looking for “clues.” In most circumstances, the officer must observe a certain number of clues before they have probable cause to arrest you. In both the Walk and Turn and One Leg Stand tests, part of the clues include just following direction and performing the test as instructed. You may feel like you aced the tests, but due to the specific clues and subjective nature, law enforcement may have a different opinion.
Contesting the Field Sobriety Tests in Court
The horizontal gaze nystagmus test, or HGN, is usually the first test you will take. This is also the one test you really won’t have a clue if you passed or not. The officer will instruct you to focus on the tip of his or her pen or finger. They will then ask you to follow that pen with just your eyes. As you look from side to side the officer is looking for three clues in each eye.
Whether or not the officer actually observes these clues (spoiler: they will claim they did!) there are potential challenges or defenses to these allegations. One argument is that there are numerous medical conditions that can cause a nystagmus outside of intoxication. More recently, some criminal defense attorneys have been litigating the validity of the tests itself.
Both the Walk and Turn and One Leg Stand FSTs are more physical in nature. They are also very direction specific. What I mean is that if you don’t touch heel to toe, or turn the wrong way, it will count against you. Furthermore, be careful in how you interpret the officers instructions. Many times they will tell you it is fine if you put your foot down, just pick it back up and continue. What they don’t tell you is that if you put your foot down it will also count against you.
These field sobriety tests can be difficult to follow exactly as the officer instructed. It can also be absurd on how and where they want you to do the tests. It is important to point out all of these disadvantages to the jury or judge in court. An aggressive argument often goes a long way.
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