The Law offices of Arnold & Smith - John Price Carr House
You cannot reason with the unreasonable;
When it is time to fight,
WE FIGHT TO WIN.

Our office continues to operate during our regular business hours, which are 8:30 am - 5:30 pm, Monday through Friday, but you can call the office 24 hours a day. We continue to follow all recommendations and requirements of the State of Emergency Stay at Home Order. Consultations are available via telephone or by video conference. The safety of our clients and employees is of the utmost importance and, therefore, in-person meetings are not available at this time except for emergencies or absolutely essential legal services.

DWI Field Sobriety Tests

First and foremost, everyone should understand that they should never perform any field sobriety tests if asked by a North Carolina law enforcement officer. In fact, you should refuse to perform a field sobriety test – as it is simply just a request. Indeed, many adults who are completely sober may perform a field sobriety test in a manner – due to a variety of environmental or physiological issues - that an officer may interpret as an indication of impairment. Nonetheless, it is important to know and recognize the types of field sobriety tests that may be requested of you if you are stopped in Waxhaw, North Carolina.

Types of Field Sobriety Tests

There are several types of field sobriety tests used by North Carolina law enforcement officers when performing a DWI stop. The issue is that depending on the individual’s specific characteristics – such as age, weight, relative balance, and physical fitness – a person may fail the DWI field sobriety test even if he or she is not under the influence of alcohol or drugs. The most common DWI field sobriety tests include:

  • Walk and Turn test: One common field sobriety test used in North Carolina DWI stops by law enforcement officers is referred to as the “walk and turn” test. During this test, the driver is asked to exit the vehicle. He or she is then asked to walk, heel-to-toe, along a straight line. Generally, the law enforcement officer asks the individual to stop after nine paces and turn around by planting one foot down and making several smaller steps in a circle, and then return down the straight line walking heel-to-toe to where the person began. In fact, starting the test too early is considered a sign of impairment. Whether or not someone passes the examination is a subjective decision made by the already suspicious officer.
  • One-leg stand test: Numerous law enforcement officers across the nation, including in North Carolina, use the “one-leg stand” test when investigating a DWI. This test requires the individual to balance upon one leg for a certain length of time – typically, up to 30 seconds. An officer will ask the person to select one and lift it six to eight inches off the ground with his or her toe pointed while still keeping his or her arms at either side. In order to pass this test, the individual must not wobble and must keep his or her toe off the ground the entire length of time.
  • Nystagmus tests: These three eye tests are commonly employed by law enforcement officers during field sobriety tests. The term nystagmus is defined by the National Highway Transportation and Safety Administration (NHTSA) as an involuntary jerking or bouncing of the eyeball that happens after the ingestion of central nervous system depressants – including alcohol. One common nystagmus test is the “horizontal gaze nystagmus” during which an officer slowly and steadily moves an object in front of the center of the persons’ face to his or her left ear. This is then repeated to the right ear. The officer is looking for the eyes inability to smoothly follow the object. Next, the officer will look for “distinct nystagmus at maximum deviation.” The officer will move the object again from the center of the person’s face to his or her left ear but this time hold it in place for several seconds. The officer is looking to see whether or not the person’s gaze on the object includes bouncing or jerking of the eye. This same process is repeated for the right eye. Finally, an officer will employ a test to look for the “angle of onset of nystagmus prior to 45-degrees.” The officer moves an object at a speed that should take about four seconds for it to arrive at the person’s left shoulder. If the person’s eye shows nystagmus before the object is 45-degrees from the center of his or her face, the officer notes this. The process is repeated for the right eye.
Your Constitutional Rights

It is essential to be aware that when a law enforcement officer pulls someone over, a number of constitutional rights are involved. While it is true that a North Carolina law enforcement officer may ask for proof of driver’s license, vehicle registration, and vehicle insurance, you have the right under the Fifth and Fourteenth Amendments not to incriminate yourself. Beyond having the commonly known “right to remain silent,” you also have the choice of whether or not to undergo a field sobriety test. Understand, however, that refusing to perform one can be used against you in a court of law. Also, refusal to cooperate may result in license revocation and other penalties depending on your driving history. Finally, if you choose to invoke your Fifth Amendment right against self-incrimination and an officer persists, you should then ask to have legal representation present before responding to any questions. You have this right to counsel under the Sixth Amendment of the U.S. Constitution. This requires law enforcement officials to cease questioning you until your attorney is present.

If you or someone you know has been pulled over in Waxhaw or the greater Union County area for driving while impaired or for driving while under the influence of alcohol, contact the experienced criminal defense attorneys at Arnold & Smith, PLLC. Our attorneys have experience fighting for those accused of DWI in courtrooms across North Carolina. Give one of our experienced DWI defense attorneys a call today.