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Unapproved And Approved FSTs In Florida: What’s The Difference?


The Field Sobriety Tests are usually an important component of a DUI prosecution. If the defendant provides a chemical sample, the FSTs establish probable cause for the demand of a sample. If there was no probable cause, the chemical test result is usually inadmissible in court. Additionally, in a significant number of cases, prosecutors must use FST results to establish guilt beyond a reasonable doubt.

Not all FSTs are created equally. Additionally, many of these tests, even the ones the government has approved, have some serious flaws. Only an experienced Tampa DUI attorney can identify these flaws and attack the state’s evidence. This approach usually leads to a successful resolution of DUI charges. This resolution could be a complete dismissal of charges, a plea to a lesser-included offense that has fewer direct and collateral consequences, or a not guilty verdict at trial.

Unapproved Tests

The National Highway Traffic Safety Administration has only approved three field tests for use in court. Unapproved tests are therefore technically inadmissible in court. Strategically, it could be best to exclude these tests, so the jury never learns about them or their results. Other times, that’s not always the best approach.

Romberg’s balance test, the head-back and finger-to-nose test, is a good example. Scientifically, this test deprives the subject of the three components of balance. So, it accurately measures this ability, an ability which alcohol impairs. The three components of balance, at least according to Moritz Romberg, the man who invented the test, are:

  • Vestibular function (knowing the position of one’s head),
  • Vision, and
  • Proprioception (knowing one’s body position).

Many officers are hard-pressed to explain these complex topics to jurors. So, it might look like the officer is evaluating things s/he does not understand. Allowing officers to testify about this test is almost like metaphorically giving them enough rope to hang themselves.

Other unapproved tests include reciting the ABCs and counting backwards. Frequently, officers administer these tests first. When defendants are physically and mentally fatigued, they often do not do as well on the tests that count. If jurors see this process for themselves, they are more likely to question the officer’s conclusions about the approved FSTs.

Approved Tests

The DUI eye test, heel-to-toe walk, and one-leg stand are the three approved field sobriety tests in Florida.

Most people have taken a Horizontal Gaze Nystagmus test. Subjects must track moving objects, like fingertips, with their eyes without using their heads. Nystagmus is also known as lazy eye. Many people have a lazy eye. But the symptoms are so mild they don’t know about this condition. In other words, a pre-existing condition, as opposed to alcohol intoxication, often causes nystagmus. For this reason, many Hillsborough County judges only allow prosecutors to use HGN results for limited purposes.

The HTW and OLS are both divided attention tests. These tests measure mental acuity, which is basically the ability to follow directions, and physical dexterity. Fatigued individuals have a hard time walking a straight line and standing on one foot. Furthermore, it’s almost impossible for any individuals with any mobility impairments to successfully complete these tests, whether they are drunk or sober. 

Reach Out to a Dedicated  Hillsborough County Attorney

A criminal charge is not the same thing as a criminal conviction. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. After hours, home, and jail visits are available.

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