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Standard Field Sobriety Tests in North Dakota

There are three standard field sobriety tests.  These tests are only circumstantial evidence that the driver was intoxicated.  An officer may not use the results of these tests to quantify a BAC.

The first standard field sobriety test is the “one-leg stand”: divided attention test.  There are certain regulations in implementing this.  First, it must be on an appropriate testing site: safe area where driver will not be hurt if he/she falls (a hard, flat, and dry surface).  It should not be administered for drivers over 65 years old, with a physical impairment, or over 50 lbs. overweight.  The driver must raise one foot six inches off the ground while keeping arms at his/her side.  Once in position, count to 30 out loud before putting foot back down.  The officer looks for specific clues of intoxicating including excessive swaying, using arms to balance, hopping to maintain balance, putting foot down, or inability to complete the test.  Two or more of the indicating behaviors may constitute failure.

The second standard test is the “walk and turn”: divided attention test (listening to and following instructions while performing a physical task).  The officer places the driver into an awkward stance, where the driver is expected to remain for a prolonged period of time while listening to the officer’s directions.  The driver takes 9 heel-to-toe steps forward, pivots, then takes 9 heel-to-toe steps back while counting aloud the number of steps taken.  The officer looks for signs including missing steps, taking an incorrect number of steps, having difficulty maintaining balance, turning incorrectly, failing to count steps out loud, using arms to balance, or not completing the tests.  Two or more indications may constitute failure.

The final standard test is the “Horizontal gaze nystagmus test.”  The officer asks the suspect to look at an object (ex. Pen).  While the object is moved back and forth, officer watches suspect’s eyes for lack of smooth pursuit.  If nystagmus (involuntary jerking of the eyes) is detected, the suspect will likely be arrested.

All of these tests are admissible, but they may be challenged based on specific circumstances (ex. Inadherence to the regulations).   There are also non-standard field sobriety tests such as saying the alphabet backwards, other counting tests, etc.

The most common and reliable method is to use a breathalyzer.  The test is presumed to be reliable and accurate if the tester complies with the state methods.  If a person refuses to cooperate with an attempt to follow the approved methods of testing (ex. Hiding chewing tobacco in his mouth despite orders to remove and rinse mouth), the person cannot later challenge the foundation for admissibility of the test results on the ground that the approved methods were not followed.  Deviations in testing procedure may cause a test to be inadmissible (ex. If an officer fails to start the test at “zero”).  However, small mistakes (ex. Wrong date) will not itself invalidate the test.  The state has the burden to prove that the machine was working correctly, and if it can do so, then the test will be admissible.

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