Posted by duijim in on February 6, 2020
You’re pulled over for suspicion of DUI in Atlanta, and the officer asks you to take a field sobriety and breathalyzer test. What do you do? The smart answer is you do neither.
That’s because here in Georgia, you don’t have to take their tests.
You don’t want to incriminate yourself, field sobriety and breathalyzer tests are not known for their accuracy. In fact, they’re notoriously unreliable. If they show a false result – which they often do – you could lose your driver’s license and be on the hook for hefty fines.
One common field sobriety check is the Romberg Test. It’s so unreliable that it’s not even among the three standardized field sobriety tests of the National Highway Traffic Safety Administration (NHTSA).
How Is the Romberg Test Performed?
The Romberg Test began as a way to diagnose medical conditions by judging a patient’s balance. Law enforcement has put its own spin on its purpose and the way it’s given.
For the medical use of the Romberg Test, the patient would start by standing with their feet together, arms crossed, and eyes open. Then, they’d close their eyes and try to maintain their balance. The doctor would make notes of any problems with the patient’s balance, and go from there.
Easy enough.
Law enforcement, though, has its own Modified Romberg Test, and it’s a doozy.
- One version of their test is for you to stand with your feet together, head tilted back and eyes closed. Then, you’re supposed to guestimate when 30 seconds have passed. When you feel 30 seconds have elapsed, you’re supposed to say, “Stop.”
- Another version is the Romberg Alphabet Test. Standing with your feet together and head tilted back, you’ll be asked to recite the alphabet – the whole thing, from A-Z – in a non-singing and non-rhyming way.
During the Modified Romberg Test, the officer is looking for a host of signs to tell if you’re impaired. These include:
- The amount of swaying – if there is any
- How close you are on the actual passing of 30 seconds
- Any tremors or shaking of the eyelids or other parts of your body, and
- Your overall ability to follow instructions.
Here’s the rub: because the Modified Romberg Test is not one of the standardized field sobriety tests of the NHTSA, the officer is not required to follow any guidelines when conducting the test.
Yet another problem is the fact that legal medication, and a person’s age and medical condition, can produce the exact failing results the officer is looking for.
What Does Georgia Law Say About the Romberg Test?
In addition to not having to take a field sobriety test in the first place, the Georgia Supreme Court said it places very little faith in the accuracy of the Romberg Test.
In an appeal of the 2017 case Mitchell v State, the court agreed with the defendant that there is no scientific proof that the Romberg Test is accurate when judging if a driver is under the influence of alcohol or drugs.
That case leaned heavily on the 1982 case of Harper v. State, which has become the cornerstone of much of Georgia law.
In Harper, the court ruled that evidence could be kept from a jury if there’s no scientific foundation for its effectiveness or accuracy.
Why Should I Skip the Field Sobriety Test?
The answer is simple: there is nothing to gain, but plenty to lose by taking a field sobriety test.
If the test produces a negative result the officer will arrest you for DUI and take you to jail.
By refusing to take a field sobriety test, you’re not incriminating yourself.
Of course, the officer can get a search warrant for a blood or urine test, but that will take longer. By the time the test is eventually performed, the blood alcohol concentration (BAC) reading will most likely be far lower than a field sobriety or breathalyzer test would have shown.
Even better news for you is the fact that your refusal to take either test cannot be used against you later in court.
While your driver’s license may be taken if you’re charged with suspicion of DUI, it will be returned if your criminal defense attorney wins your case in court.
The Bottom Line
The lesson here is that there is no good reason to give police officers evidence that could cause you a lot of grief and money. Instead of taking their tests, politely refuse and contact a DUI attorney so they can begin working on your defense.
Yeargan & Kert, LLC
Atlanta DUI Lawyer
1170 Peachtree St NE #1200
Atlanta, GA 30309
(404) 467-1747