If you've ever been pulled over on suspicion of drunk driving in Wisconsin, you've likely already participated in one or more field sobriety tests or FSTs.

Don't be fooled by what police might say when telling you what the test is for. These tests are designed with the intention of identifying sufficient reason or probable cause to arrest you on suspicion of driving under the influence — nothing more.

While you might be asked to take any number of FSTs, there are only three standardized field sobriety tests (SFST's) recommended by the National Highway Traffic Safety Administration (NHTSA):

In this article, we'll will give you a better understanding of why law enforcement requests FSTs, what is involved in the horizontal gaze nystagmus test and explain the consequences of submitting (or not submitting) to this field test. 

Related: 15 Ways to Beat a Drunk Driving Case in Wisconsin

"Would you please step out of the vehicle?"  

Upon hearing this or a similar phrase, you can almost be certain the next words you hear will be the police giving you field sobriety test instructions. Remain calm, then consider politely refusing.  

It is important to know, as long as you are not operating under a Commercial Drivers’ License (CDL), you are NOT REQUIRED by law to take Field Sobriety Tests.  

"Many people in Wisconsin don't realize they're not required to do field sobriety tests." - Pat Stangl

One of the best things you can do is to politely refuse FSTs, including blowing into a preliminary breath test or PBT. This small, handheld device is commonly referred to as a Breathalyzer. 

If you are facing criminal charges, contact an experienced attorney to discuss your case.

Taking the Horizontal Gaze Nystagmus Test 

You may already be familiar with this standardized field sobriety test, though you may not recognize it by name. This test is designed to check for involuntary eye movement, an uncontrollable act that can occur with increased alcohol consumption—though it can also occur due to a number of other factors.  

In this test, you will be asked to keep still and follow a stimulus (flashlight, pen, finger or other object) only with your eyes. The officer administering this test will be checking each of your eyes for the following factors to use as evidence of uncontrollable eye movement, or nystagmus, to support their suspicions that you were under the influence of an intoxicant while driving:  

  1. Lack of smooth eye tracking as you follow the object back and forth

  2. A clear and extended state of nystagmus or jerking of your eye, at the extreme limit of gaze or maximum deviation

  3. Jerking of your eyes (nystagmus) before your gaze reaches a 45-degree angle

From what seems like a simple test, police can potentially record up to 6 cues or indicators of intoxication (including pupil dilation or size), to use in establishing probable cause of OWI and as evidence of driving under the influence.  

In addition, if your vision tracks evenly but your eyes still jerk, police may consider that indicative of drug use. 

Related: Drug Charges in Wisconsin: What You Need to Know

Consequences of Failing the HGN Test 

You will likely be arrested if you test positive for any of the above factors, though there are many reasons besides intoxication which might cause nystagmus.

This type of uncontrollable jerking or shifting optical movement can be caused by inner ear conditions, brain issues such as stroke history, injury, allergies, stress and other conditions.  

In addition to health issues, the accuracy of the horizontal gaze nystagmus test is dependent upon many factors, including proper instructions, proper administration of the test, environmental conditions, light conditions, weather conditions, age and many other factors.  

If you submitted to the HGN test and were arrested for OWI in Wisconsin, but do not believe you were intoxicated at the time of your arrest, it is very important you consult a knowledgeable criminal defense attorney to help with your case. 

Consequences of Refusing the HGN Test 

Remember, once the police pull you over on suspicion of drunk driving, they need to establish probable cause that you are, indeed, drunk. Collecting evidence will help them to accomplish this. By willingly submitting to these largely-unreliable tests with often-inaccurate results, you risk inadvertently helping to create evidence law enforcement can use to charge you with OWI in Wisconsin.  

Again, it is within your legal right to (politely) refuse to take the horizontal gaze nystagmus or other tests in the field after you are pulled over for suspicion of OWI in Wisconsin. 

If you do refuse to take FST's, you can expect to be arrested for refusing to submit to field sobriety testing, as the police will likely interpret your refusal as probable cause of DUI. Stay calm and know you may be helping your case by not assisting police in gathering subjective and potentially-inaccurate evidence to be used against you. 

Once you get to the police station, you will be required to submit to chemical testing (blood, breath, etc.) according to implied consent

Try to remain polite and cooperative, and contact an experienced OWI attorney as soon as you are able. 

Defending Against OWI Charges in Wisconsin  

If you have already submitted to the HGN test or other FST's in Wisconsin and were charged with OWI, don't lose hope.  

Field sobriety test administration, conditions and results are all subjective at best, meaning it is possible your results may not be accurate and could even be found inadmissible in court. 

There are many other factors resulting from the subjectivity of field sobriety tests your lawyer can explore with you, including your health. If you haven't already contacted an aggressive and proven criminal defense attorney, it is in your best interest to do so right away. 


Two OWI Defense Success Stories

OWI Victory: Evidence Thrown Out

"I was charged with an OWI/PAC with a very high alcohol concentration. Frankly, I didn't think anything could be done to help my situation. I spoke to a friend of mine who recommended that I contact Pat Stangl. I ended up hiring Attorney Stangl and I cannot even believe the result he obtained for me. Attorney Stangl believed that he had an argument that the manner in which I was stopped was not legal because the only basis for the stop was my high mount brake light was not operating. Under the Wisconsin Administrative Code that is reason to stop a vehicle, however Attorney Stangl came up with a very unique legal argument and at the hearing to challenge the stop, through his experience and expertise, caught the County flat footed. Attorney Stangl was able to exploit the fact that the County failed to offer certain evidence regarding that third brake light. The matter was briefed by the parties and I must say Attorney Stangl is a brilliant legal strategist and an excellent writer. The court agreed with Attorney Stangl’s analysis and granted the motion and all the evidence against me was thrown out including the .22 blood test!"

Rich Hoops

OWI Victory: Charge Dropped

"Patrick is an amazing lawyer who was a life-line in a case that seemed hopeless. I was charged with a 3rd OWI while inside a bar because two eyewitnesses said I had been driving erratically. I did agree to a Breathalyzer even though I didn't drink until I got to the bar. I didn't agree to the blood draw because I just thought something wasn't right about the arrest, and because I have a language processing difficulty, I really didn't understand what was going on. I was then charged with a refusal. My mother had heard of Mr. Stangl through another client of his, and we decided to contact him. He met with us right away in person, assured us that he would do his best for me although no promises could be made. Throughout the court appearances, Mr. Stangl was always in contact not only by letter but also in person beforehand. If we called him, he got back to us quickly. I always felt confident with him especially since he was one of the few people who understood my disability whereas I felt that the arresting police and the DA did not. Patrick had several plea bargains offered to him for my consideration from losing my license forever to reckless driving. By investigating the reliability of the eyewitnesses, he was able to convince the DA to drop the OWI and charge me with inattentive driving, a misdemeanor. I still can't believe how lucky I am. With any other lawyer, I would be in jail now facing a big fine, ignition interlock and all sorts of other difficulties. This great result only happened because Patrick never dropped the ball. He knows the law inside and out, and he fought tooth and nail for me. I am forever grateful. If you need a lawyer, Patrick Stangl is the BEST!"

Andy G.

FREE 10-Minute Consultation

If you need help to fight drunk driving charges in Madison or elsewhere in the state, Attorney Pat Stangl is happy to offer you a FREE 10-minute consultation to discuss your case and explore options for your defense against OWI, DUI, DWI, PAC, BAC or other criminal charges. Click the link below to get started.

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