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Balance Test in a DUI Traffic Stop

If you are watching an old episode of COPS on TV, it can be funny to see a drunk driver failing field sobriety tests. However, when you are on the side of the road talking to a police officer, the situation is very different. In a lot of cases, the driver may have had a couple of drinks but feel fine driving home. Unfortunately, the police can skew their tests to arrest a driver who is right at the legal limit. 

As part of the traffic stop, the Oakland Police Department officer will ask the driver to do some roadside tests. There are various field sobriety tests that law enforcement have developed over the years, including the head-back balance test. The head-back balance test is not one of the 3 standardized field sobriety tests but some cops may try to use the unendorsed test as a way to make a DUI arrest. 

Field sobriety tests are not 100% accurate and there are a lot of ways to fail these tests, even if the driver is completely sober. Under California law, field sobriety tests are not mandatory. There are no penalties for refusing a field sobriety test. However, police officers in the East Bay may make it seem like you don't have a choice. You can end up failing these tests just because the sheriff's deputy gave the wrong instructions. 

If you were arrested for drunk driving in Alameda County or Contra Costa County, you do not have to plead guilty just because you failed some field sobriety tests. Before you lose your license and plead guilty, talk to an experienced California DUI lawyer about your options. Contact East Bay DUI defense attorney Lynn Gorelick.

Field Sobriety Tests in California Drunk Driving Stops

Field sobriety tests, also known as roadside sobriety tests, have been developed that are supposed to test a driver's impairment levels. Some of these field sobriety tests are more accurate than others but none are 100% accurate in all situations. Unfortunately, drivers on the side of the road are at the mercy of what a police officer observes instead of how much alcohol they've consumed. 

The National Highway Traffic Safety Association (NHTSA) has endorsed 3 standardized tests for use in roadside traffic stops. For police officers to conduct these tests, the NHTSA has developed training through the Standardized Field Sobriety Testing (SFST) course. 

The SFST course is supposed to provide a clear, consistent, and standardized evaluation system for traffic stop DUI evaluations. The 3 standardized field sobriety tests include: 

Over the years, several other tests were used that were alleged to be a good evaluation of impairment. These tests are not part of the standardized NHTSA tests but some officers still use these tests, which may be even less accurate than the standard tests. Some of these other tests include: 

  • Romberg Balance Test 
  • Tracing Test (a paper and pencil exercise) 
  • Backwards Alphabet Test 
  • Finger-to-Nose Test 
  • Finger Count Test
  • Numbers Backward Test 
  • Hand Pat Test

What Is the Modified Romberg Balance Test?

The modified Romberg balance test (MRB) is a version of the Romberg balance test that is used by medical professionals to gauge disequilibrium or ataxia from sensory and motor disorders. For example, if a patient has spinal column disease, it can impact their upright postural control. First developed in the mid-1800s, the Romberg test is a neurological test to gauge balance and equilibrium.  

As originally developed, the Romberg test begins with the patient taking off their shoes and standing with their feet together, arms held out to the side of the body or crossed in front. The patient is asked to stand with eyes open, then eyes closed, while trying to maintain balance. The Romberg test is scored by the number of seconds the patient can stand with their eyes closed. 

The modified Romberg balance test has been used by law enforcement to gauge sobriety. However, the test remains very subjective. According to the NHTSA Advanced Roadside Impaired Driving Enforcement, the three indicators to check during the MRB are: 

  • Estimation of the time estimation of 30 seconds
  • Observation of tremors (eyelid and/or body or muscle)
  • Observation of sway (front-to-back, side-to-side, and rotational)

Conducting the Modified Romberg Balance Test

Like other tests, the MRB is a "divided attention test," where the officer records how much time actually elapsed during the estimated 30 seconds, until the subject opens their eyes and says stop. If the subject continues to keep their eyes closed for 90 seconds, the officer is supposed to stop the test and record the time. There are two parts of the test, the instruction stage and the balancing stage, as follows: 

Instruction Stage

  1. Stand straight with your feet together and your arms down at your sides. 
  2. Remain in this position while I finish giving the instructions. 
  3. Do not start the test until I say “start.”
  4. Ask if the subject understands the instructions. Make sure to obtain a verbal response from the subject. 
  5. “When I tell you to start, I want you to tilt your head back slightly and close your eyes.” DEMONSTRATE how the head should be tilted, but DO NOT CLOSE YOUR EYES while demonstrating. 
  6. “Once you have closed your eyes, I want you to remain in that position until you think 30 seconds have gone by.”
  7. “As soon as you think 30 seconds have passed, open your eyes, tilt your head forward, and say ‘Stop.'” 
  8. Do you understand? Make sure to obtain a verbal response from the subject.                                                                                                                                                                                                                                 

Balancing Stage

  1. Look at your timing device and pick a convenient time to start the test. 
  2. Tell the subject to tilt their head back and close their eyes. 
  3. Tell the subject to begin or start the test. 
  4. Keep track of time while the subject performs the test. 
  5. Check the subject for the presence of tremors (eyelid and/or body) and sway. 
  6. When the subject opens their eyes, ask them “how much time was that?”
  7. Record how much time actually elapsed from the start of the test until the subject opened their eyes or was told to stop. 
  8. Document their “exact” verbal response.

The Head Back Balance Test Is Not Required 

Field sobriety tests in California are not mandatory. Like a roadside breath test, or preliminary alcohol screening (PAS) device, these tests are not required. If you refuse the field sobriety tests, you may still end up under arrest. However, if you don't do the tests, the results of the test cannot be used against you to justify the arrest. If you want to know more about how to challenge the prosecutor's evidence in a California DUI case, talk to your experienced East Bay DUI defense lawyer

DUI Defense in the East Bay

If you are arrested for drunk driving in the East Bay, talk to a DUI defense attorney about your legal rights. East Bay attorney Lynn Gorelick has more than 38 years of DUI defense experience and understands how to approach each case for the greatest chance for success. Representing individuals in Alameda County and Contra Costa County, Lynn Gorelick knows how to fight DUI charges. 

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