In the One-Legged Stand, the officer requests you stand with one leg out in front of you, approximately 6 inches off the ground, with the raised foot pointed up and both legs straight, hands at your side. You will be asked to count out loud “one-one thousand, two-one thousand,…” until you reach thirty. The “clues” the officer is looking for in this test is raising your arms for balance, hopping, dropping your foot early, or swaying.

The next test is the Walk-and-Turn. In this test, the officer will ask you to stand heel to toe while he or she gives instructions. They will explain that they want you to walk a straight line (sometimes on an actual line, sometimes a line is not available), making contact heel-to-toe, for nine steps, while watching your feet, counting out loud, and keeping your hands at your side. At the ninth step, you are to keep your lead foot on the line, and turn using your other foot by taking small steps around in a half circle. Then repeat the nine steps back. The “clues” that are looked for are starting the test too soon, using hands for balance, stepping off line, missing heel-to-toe by more then a 1/2 inch, an incorrect turn, a wrong number of steps, stopping the test early or not maintaining balance during instructions.

The last test is the Horizontal Gaze Nystagmus (HGN). To explain this test, it is necessary to define Nystagmus. Nystagmus is the involuntary twitching of the eyes. Nystagmus can be caused for several reasons, one is alcohol impairment. The test is performed by the officer asking you to follow a stimulus while holding your head still. The officer is supposed to move the stimulus from left to right and right to left, watching each eye for certain “clues.” The test is looking for six “clues”, three for each eye: lack of smooth pursuit, distinct Nystagmus at maximum deviation, and onset of Nystagmus prior to 45 degrees. In other words, while performing the test, the officer is looking to see if your eyes do not track smoothly, to see if you have ‘distinct’ Nystagmus when your eyes are all the way to one side, and to see if Nystagmus starts prior to the stimulus reaching 45 degrees from the center of your face. It is a common misbelief that this test is looking for whether you can follow the stimulus without moving your head, and while the officer will make note of it, it is not the primary purpose of the test. Therefore, no one but the officer knows whether you ‘passed’ the test or not.

In addition to these tests, the officer will likely ask you to blow into a Handheld Breathalyzer Test; known as the AlcoSensor. The AlcoSensor is used by the officer to determine your level of intoxication from the side of the road. The numerical results of this test CAN NOT be used at trial. The officer can only testify as to whether the machine indicated a positive reading for alcohol on your breath.

The Intoxilyzer 5000 and the Intoximeter EC/IR II have been approved by North Carolina for use by police officers to determine the level of intoxication of someone they have arrested. Normally, these machines are found at the police station or precinct. Occasionally for North Carolina DWI Checkpoints, they will have these Breathalyzer Machines on site to expedite processing DWI arrests.

The test performed by these two machines is what is called an “Implied Consent” test. That means that, by driving on North Carolina streets or highways, you have “implied” to “consent” to the administering of these tests. This is important because, by law, should you refuse to perform this test, you will have your license suspended immediately for 30 days, and then for a year. You will not be eligible for a limited driving privilege for the first 6 months of that year. However, by providing a breath sample for this test, you could be generating the evidence the State needs for your conviction of Driving While Intoxicated. A North Carolina DWI Conviction also carries with it a suspension of your license for a year, as well as other requirements laid out in North Carolina DUI Sentencing Structure . Also to be considered, should you refuse the test, the officer may obtain a warrant to take a sample of your blood in order to ascertain your level of intoxication. For these reasons, Matheson & Associates, PPLC does not offer a suggestion or recommendation when it comes to the Intoxilyzer 5000 or Intoximeter EC/IR II machines and the test they perform. Only you can decide what is in your best interest as to whether to refuse the test or not as either option carries with it consequences you must weigh.

If you decide to perform the test, you are given the option of having someone present to witness the administration of the test. You have 30 minutes from the time your rights are explained to you in order to get someone to your location to observe. It is highly recommended that someone be present during this time. Their testimony, not only to the administration of the test, but also to their opinion of your condition at that time, may be helpful should your case go to trial.