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Can the Police Require a Finger to Nose Test?

When the police in California pull a driver over on suspicion of drunk driving, the officer may ask the driver to complete some roadside tests. There are several field sobriety tests that police have tried over the years, including the finger-to-nose test. Putting your finger to your nose with your eyes closed is not one of the standardized sobriety tests. However, some police officers may still use the unendorsed test as a way to justify an arrest. 

Field sobriety tests are not always accurate. In California, roadside drunk driver tests are not even required. As a driver, you have the right to refuse a field sobriety test with no penalty. Unfortunately, law enforcement in Oakland and the East Bay still rely on these tests to justify an arrest, even if the officer gave the wrong instructions or was not accounting for outside interference. 

If you were arrested for a DUI in the East Bay after doing roadside sobriety tests, you do not have to plead guilty just because you failed these faulty tests. Before you plead guilty and lose your license, talk to an experienced California DUI lawyer about your options. You may have a stronger case than you realize. After a DUI arrest in the East Bay, contact East Bay DUI defense attorney Lynn Gorelick.

Field Sobriety Tests in California Drunk Driving Stops

There have been several field sobriety tests developed over the years. Some of these tests are “more accurate” than others but none of them are 100% accurate. At some point, the National Highway Traffic Safety Association (NHTSA) endorsed 3 tests as the standardized field sobriety tests. However, some police still use the unendorsed tests. 

The NHTSA helped develop standardized training program for law enforcement officers with the Standardized Field Sobriety Testing (SFST) course. The SFST course was developed to try to provide a standard evaluation for roadside impairment. The standardized field sobriety tests include: 

There are additional tests that some law enforcement officers have used, and continue to use. These tests may have been deemed less accurate, more prone to false-positives, or difficult to administer under road conditions. Some of the unendorsed field sobriety tests include: 

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

What Is the Finger-to-Nose Test?

The finger-to-nose (FTN) test is supposed to determine whether a driver may be impaired by alcohol or other drugs by testing their reactions involving balance and sight. According to the NHTSA Advanced Roadside Impaired Driving Enforcement, the procedures for FTN are: 

  • The subject is told they will be given a series of commands.
  • The subject is told to stand with feet together, arms down at the sides, facing the examiner.
  • The officer demonstrates the stance.
  • The subject is told to close their hands, rotate the palms forward and then to extend the index fingers from the closed hands.
  • The officer tells the subject they will be asked to touch the tip of the index finger to the tip of the nose.
  • The officer demonstrates to the subject how they are expected to touch the fingertip to the nose.
  • The officer demonstrates with, "When I say ‘left,' touch the tip of your left index finger to the tip of your nose."
  • The officer tells the subject they are expected to return the arm to the side immediately after touching the fingertip to the nose. 
  • The officer demonstrates the movement of the fingertip to the nose by standing at an angle to the subject so they can see the proper method for touching the nose.
  • The subject is told to tilt the head back slightly and to close the eyes and keep them closed until the officer says to open them. 
  • The officer demonstrates the stance with head tilted back, arms at the sides with index fingers extended, and reminds the participants they should not close their eyes during the instructions for safety reasons.

Like other SFSTs, the finger-to-nose test is a divided attention test. The police officers look for a number of possible indicators that the driver may be impaired by drugs or alcohol. Indicators include: 

  • Losing balance
  • Starting the test early
  • Failing to follow instructions
  • Touching too high or too low on the face
  • Repeats with the other arm before returning hands to the side
  • Continuing beyond what was instructed

Like all field sobriety tests, the finger-to-nose test can be very subjective. There are many legitimate reasons why a driver could "fail" the test, even if they were not impaired by alcohol. 

Finger to Nose Test Is Not Required 

When the police make a traffic stop they may look for signs of impairment. If the police suspect the driver is drunk or high, they may try and gather evidence of impairment. Signs of impairment can be used to give the officer probable cause to make an arrest. The police want this information to justify the arrest. Without any indications of impairment, an arrest without probable cause may be an unlawful arrest. 

Field sobriety tests are not mandatory in California. Just like the preliminary alcohol screening (PAS) device, also known as a breathalyzer, these tests are not required. Without submitting to the tests, there are no test results to submit to the jury. You may still be arrested for a DUI after you refuse the SFSTs but you can still end up under arrest if you "pass" some of the tests. 

Problems With Field Sobriety Tests

The police and prosecutors rely on field sobriety tests to show a driver is impaired. However, there are many problems with these tests and a sober driver could "fail" the test, according to the police. Some of the reasons why an unimpaired driver could fail a field sobriety tests include: 

  • Health conditions
  • Ear infections
  • Inappropriate footwear
  • Heavy traffic close to the driver
  • Flashing police lights
  • Uneven pavement
  • Illness 
  • Number of misses
  • Tremors

The police officer could have also given the wrong instructions or failed to properly administer the test. Any of these could be reasons why you may want to refuse a field sobriety test. Your best defense after a drunk driving arrest in Oakland and the East Bay may be to contact an experienced DUI defense lawyer who understands how to handle cases just like yours. 

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 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 is familiar with the local diversion programs, prosecutors, and judges involved in cases just like yours. 

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