Field Sobriety
Testing Information
FIELD SOBRIETY EVALUATIONS OR “TESTS”
GENERALLY
Motorists suspected of DUI
/ DWI are routinely asked by police officers to perform one or more
field sobriety exercises. These voluntary "tests" (yes,
voluntary) were developed by police agencies to assist law
enforcement officers in making roadside determinations as to whether
a motorist is under the influence of alcohol or drugs. Through the
performance of these tests or evaluations, the officer subjectively
determines how the motorist reacts to and performs the requested
tasks.
Almost EVERY knowledgeable
DUI / DWI attorney will say to you, "NO. Don’t attempt ANY
'field tests'---EVER." That is because many studies have
concluded that the SFSTs are “designed to fail”. When asked any
questions regarding how much you have had to drink, simply state:
"I do not want to answer any questions without my
attorney present other than my identity" you can even state that
you attorney has advised you never to take a sobriety test, as he
believes that they are designed to fail.
A motorist's alleged poor
performance on field evaluations may provide the "probable cause"
(legal justification) an officer needs to arrest a person for
impaired driving and may also become part of the proof used to later
convict the person at trial. See Parrish v. State, 216 Ga.
App. 832, 456 S.E.2d 283 (1995). Therefore, it is very important
that, in defending you, your defense attorney know as much or more
about these tests as the police, if he or she is going to defend
you.
One sure way to know that
your attorney is up to date: is your attorney "NHTSA certified"?
Certified as a "student"? Or certified as an "instructor".
Ask him/her. This training has been available to defense
attorneys since 1994, and over 1000 attorneys nationwide have
received the training.
Counsel for the defense should challenge the subjective nature of
the evaluations, the accuracy of the principles behind the tests,
the accuracy of the administration of the tests, the credibility of
the officer who "requested" the tests, and challenge all
circumstances connected with the evaluations. The attorney
representing you must attack the factual and legal issues that may
arise regarding the officer's scoring and evaluation of the field
tests.
Only three tests have been "scientifically" studied (in
lengthy studies paid for by the federal government) and represented
to have any measure of reliability in helping an officer predict
whether a subject is above a certain legal limit (0.10 BAC, in the
original testing). These tests, known as the "standardized field
sobriety tests" [SFSTs], were designed pursuant to numerous federal
grants and ultimately sanctioned by NHTSA (the National Highway
Traffic and Safety Administration) beginning in 1984. These three
tests are (1) the walk and turn [WAT] test, (2) the one leg stand [OLS]
test, and (3) the horizontal gaze nystagmus [HGN] test. However,
the manuals (plural here, because 6
separate versions have now been released) say that if not performed
properly, or if conducted without adhering to the training
protocols, such actions "compromise" the validity of these
evaluations.
Starting in the 1970’s,
NHTSA began studying and funding "field tests" to see if any of the
dozens of police exercises had any correlation to showing if a
drinking driver had a blood alcohol level of 0.10 grams percent or
higher. The "studies" determined that only the three named
evaluations had any reliable correlation better than 50-50 (flipping
a coin and guessing 'heads', being a 50-50 reliability test, for
example) to identify a person having a BAC of 0.10% or more.
These evaluations in no way were used to determine
whether a driver is impaired . . . only whether the person may be
0.10 or more.
The HGN evaluation, when
performed correctly on proper subjects, had a 77% "claimed"
reliability rating. The WAT exercise, when conducted properly on a
qualified subject on a dry, level surface, was found to be 68%
reliable. The OLS exercise, when conducted properly, on a qualified
subject on a level, dry surface and under proper instructions and
where correctly demonstrated and scored, reportedly yields about 65%
reliability. Cumulatively, if all are done correctly, up to 83%
correlation to a BAC of 0.10% or more may be expected.
Knowledgeable criminal
defense lawyers know that 98% or more of the officers administering
these evaluations do them wrong, or conduct them in a
manner (or on a test subject) not approved by the SFST manual,
or grade the evaluations improperly, as per the manual,
or ALL OF THE ABOVE. When done incorrectly, these
evaluations have ZERO predicted reliability.
Hence, a top-notch DWI attorney can cross-examine the arresting officer
using his/her OWN training materials that the federal government and
YOUR state government have approved.
Recent research and
scientific review of the testing protocols and scoring methodology
have brought the NHTSA “Standardized Field Sobriety Tests ("SFSTs")
into serious question. Courts across America are taking a closer
look at the original research, to see if proper scientific methods
were employed in the initial research. More and more courts are now
saying "no" to these questions. In a recent New Mexico case, a
high-level court has declared that the person who "developed" the
tests (Dr. Marcelline Burns) was not qualified to testify as
an expert witness about the scientific principles behind the HGN
test. (Lasworth v. State, 42 P.2d 844 (N.M. App. 2001).)
HISTORIC ROOTS
Prior to the 1980's and
NHTSA's studies on field testing, police officers across America
were taught a wide variety of "tests" to be given to persons stopped
for suspected drunk driving. Most of these "tests" had never been
studied to determine "fairness" or accuracy in detecting either
impaired drivers or drivers who were operating a vehicle while their BAC level was 0.10 BAC or more. Moreover, no standardized method
(that is, not being done the same way by officers who used these
tests) of scoring or grading these tests had been attempted. Simply
stated, the decision to arrest was based upon the subjective whim of
the officer. Mistakes were made in a large percentage of cases.
Tests given by some
officers may have included reciting the alphabet (or a portion
thereof), picking up coins off the ground, or touching index fingers
to the tip of the nose while the person’s eyes were closed and head
tilted back. Some involved strange, one-legged tapping on the
roadway with a raised foot (similar to what that famous television
horse, Mr. Ed, used to do). These "made-up" tests were administered
to subjects without any scientific or empirical basis for
reliability in detecting an impaired driver. These tests were
designed for failure, not for fairness. Even worse, police officers
often forced people to perform these voluntary evaluations,
thereby violating these citizens' rights.
Some "non-standardized"
tests were so ridiculous and difficult that proof of non-validity
was easy with almost any jury or judge. Today, officers who lack NHTSA training invariably cannot cite any studies or scientific
research which "validated" their tests, the scoring (e.g., “pass” or
“fail”) or their testing methods. Almost always, no scoring system
is used on tests which do not adhere to NHTSA guidelines. If
non-standardized tests are used, the number of errors that are
required for a subject to fail is totally subjective with each
officer. Hence, the untrained officer is usually an easy target for
a skilled and knowledgeable criminal defense attorney who knows the
“limitations” of these field tests.
THE ISSUE OF THE
``SCIENCE" OF FIELD TESTING
A great rift exists among
scientific experts on the question of whether field sobriety tests
are ``scientific." For example, Georgia's appellate courts have
blown hot and cold on this subject. Torrance v. State, 217
Ga. App. 562, 458 S.E.2d 495 (1995); Manley v. State, 206 Ga.
App. 281, 424 S.E.2d 818 (1992); Foster v. State, 204 Ga.
App. 632, 420 S.E.2d 78 (1992); Crawford v. City of Forest Park,
215 Ga. App. 234, 450 S.E.2d 237 (1994) [holding that field tests
given by the arresting officer were not ``a scientific procedure,"
but ``simply a behavioral observation on the officer's part"];
Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994);
Hawkins v. State, 223 Ga. App. 34, 476 S.E.2d 803 (1996).
Challenges to field sobriety tests based upon proof of a scientific
foundation by an expert have been rejected by the court of appeals.
Druitt v. State, 225 Ga. App. 150, 483 S.E.2d 117 (1997).
See also Padgett v. State, 230 Ga. App. 659, 498 S.E.2d
84 (1998), where the court of appeals held that field sobriety tests
are merely dexterity exercises and the word ``tests" is a misnomer.
The reason that most
credible scientists across America (and in other countries) are
unwilling to categorize field tests -- even NHTSA's tests -- as
being “scientific” is that too many variables are involved in
roadside testing to ever eliminate pure chance and non-controlled
circumstances from the equation (e.g., environmental conditions such
as lighting and roadway slope). Numerous states, including Texas,
Alabama and Mississippi, do not permit HGN evidence to be admitted
at trial. The reason behind this is that these “party games” (as
noted Swedish scientist Dr. A.W. Jones has called them) do not pass
well-established rules f evidence (the court rules for determining
when certain types of information may be told to the jury) for
scientifically acceptable tests.
Even NHTSA admits that
under optimal conditions (i.e., in an air-conditioned, well lighted
room) 35% of sober, drug-free subjects get inaccurate results on the
one leg stand test, 32% of sober subjects get flawed results on the
walk and turn, and 23% of sober subjects are inaccurately said to be
“over the legal limit” on the horizontal gaze nystagmus test. By
comparison, polygraph (lie detector) tests are more than 90%
accurate when conducted by a qualified operator), and (absent a
stipulation by both parties) are still not permitted into evidence
by most courts.
Issues of unreliability
and lack of scientific validity cannot be extensively addressed on
this website. The author commends the following articles for your
study of this fascinating subject:
(1) Nowaczyk, Ronald
H., and Cole, Spurgeon, Separating Myth from Fact: A Review of
Research on the Field Sobriety Tests, NACDL Champion Magazine,
August, 1995, p. 40.
(2) Cowan, Jonathan D.,
Proof and Disproof of Alcohol-Induced Driving Impairment Through
Evidence of Observable Intoxication and Coordination Testing, 9 Am
Jur Proof of Facts 3d, p. 459 (1990).
(3) Cowan, Jonathan D.,
Proof and Disproof of Alcohol-Induced Impairment Through Breath
Alcohol Testing, 4 Am Jur Proof of Facts 3d, p. 229 (1989).
(4) Trichter & Peña, DWI/DUI Field Sobriety Testing Revisited,
NACDL Champion Magazine, August, 1996, p. 17.
(5) Price, Phillip B., Sr.,
Field Sobriety Testing, NACDL Champion Magazine, August, 1996, p.
46.
THESE ARE
VOLUNTARY TESTS
Only a small number of
states have tried to pass laws to make the field tests not be 100%
voluntary. These states typically will assess a monetary fine
against someone who says “no” to these voluntary tests. So what?
I tell all my fiends and relatives and clients: DON’T ATTEMPT
THESE TESTS. Other states have said that the State
Constitution provides that no person can be compelled to take such
tests.
Case law in virtually all
U.S. jurisdictions indicates that if a person is being detained or
is “in custody,” no field tests can be given without first providing
Miranda advisements (i.e., right to remain silent; right to
an attorney; if you can’t afford an attorney, one will be appointed
for you). State v. O'Donnell, 225 Ga. App. 502, 484 S.E.2d
313 (1997). Hence, the new focus for defense attorneys is to
establish that some sort of ``custody" or detention has occurred
prior to the field tests. See also Price v. State,
269 Ga. 222, 498 S.E.2d 262 (1998).
However, many appellate
courts have bent over backward to ignore clear signs of custody.
For example, despite guns being drawn on a driver, the Georgia Court
of Appeals (in Hassell v. State---see citation above) ruled
that this was not “custody”. Of course, this is a ridiculous
ruling, but part of “Georgia law,” regardless.
Other courts have stood
tall and said “if NHTSA tests are supposed to be scientific, then
they must be done correctly”. The previously mentioned Lasworth
case from the New Mexico Court of Appeals is just such a case.
The Supreme Court of Ohio recently
held that the officer’s failure to follow NHTSA training in
administering field sobriety exercises was a factor in determining
the admissibility of the test. State v. Homan, 732 N.E.2d 952
(Ohio 2000). In Homan, a NHTSA‑trained officer’s admitted
failure to administer the field sobriety exercises in strict
compliance with NHTSA’s standardized testing procedures invalidated
(and excluded) all of the State’s evidence about the field sobriety
exercises. The Homan court made the following findings
regarding the unreliability of field tests not conducted in
compliance with NHTSA procedure:
When field sobriety testing is
conducted in a manner that departs from established methods and
procedures, the results are inherently unreliable. In an extensive
study, the National Highway Traffic Safety Administration (“NHTSA”)
evaluated field sobriety tests in terms of their utility in
determining whether a subject’s blood‑alcohol concentration is
below or above the legal limit. The NHTSA concluded that field
sobriety tests are an effective means of detecting legal
intoxication “only when: the tests are administered in the
prescribed, standardized manner[,] . . . the standardized clues are
used to assess the suspect’s performance[, and] . . . the
standardized criteria are employed to interpret that performance.”
National Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178
R2/00, DWI Detection and Standardized Field Sobriety Testing,
Student Manual (2000), at VIII‑3. According to the NHTSA, “[i]f any
one of the standardized field sobriety test elements is changed, the
validity is compromised.” Id. Experts in the areas of drunk
driving apprehension, prosecution, and defense all appear to agree
that the reliability of field sobriety test results does indeed turn
upon the degree to which police comply with standardized testing
procedures. See, e.g., 1 Erwin, Defense of
Drunk Driving Cases (3 Ed.1997), Section 10.06[4]; Cohen & Green,
Apprehending and Prosecuting the Drunk Driver: A Manual for Police
and Prosecution (1997), Section 4.01.
ROADSIDE ALCOHOL SCREENING
TESTS
A portable breath testing
device may be used by police officers in determining whether or not
a motorist is under the influence of alcohol. Some states have
banned the use of these voluntary “non-evidential” screening
devices. “Non-evidential” means that “the digital number” can’t be
used against you in court. Some states have ruled that the only
place at trial that these can be used is at a pre-trial hearing at
which “probable cause” for arrest is involved.
Like other “field tests”, these devices are used at the roadway.
Often, police officers do not regularly check the devices for
calibration. Furthermore, the manufacturer’s instructions (e.g.,
failing to observe a 15 minute deprivation period, waiting at least
4 minutes between tests, or clearing the prior test results) for
proper use are routinely ignored.
Some states have started
using these roadside testers as evidential tests. This is
accomplished when a small printer is attached to the breath test
apparatus. Unless your state uses such a device as an OFFICIAL
state-mandated breath test, no person should ever submit to these
devices and risk a false positive result and almost certain arrest.
Politely DECLINE to give this voluntary sample, if it is not the
official state test.
THE
NEWEST “VOODOO” SCIENCE: THE “DEC” PROGRAM TO IDENTIFY DRUG USE
Government studies have
revealed that many drivers are under the influence of drugs, or a
combination of alcohol and drugs. To combat this, an effort has been
mounted since the early 1990’s to add some type of training to the
police officer's arsenal that will assist in identifying
drug-impaired individuals. Hence, NHTSA has created the ``Drug
Evaluation and Classification" (DEC) Program. A DEC officer does
not typically work in the field (i.e., making traffic arrests), or
make the initial arrest of an impaired driver. A DEC officer is
called in after a subject either shows a low score on an alcohol
test, or otherwise ‘smells’ like or ‘acts’ like he/she has been
using drugs. The proper procedure is for the DEC officer to give
Miranda warnings to the person (already in custody), and then start
“the evaluation for drug usage”. SIMPLE RULE: SAY NO!
You have just been told of your constitutional rights---USE THEM!
Say nothing and do nothing beyond say, “I’d like to speak to an
attorney.” More information on
Your Constitutional Rights.
The function of DEC is to ascertain:
(a) Whether the
person is impaired by something;
(b) If impaired, is
it from drugs as opposed to alcohol;
(c) If the impairment
appears to be from drugs, what ``manifestations" or visible
indicia of impairment would indicate the TYPE or CATEGORY of drug
being used?
As opposed to trying to
target a single ``impairing" chemical, the DEC process seeks to
``recognize" indications of any of seven broad categories of drugs:
(1) Central nervous
system depressants, such as Valium, Xanax or alcohol;
(2) Central nervous
system stimulants (e.g., crack or powder cocaine);
(3) Hallucinogens,
such as L.S.D.;
(4) Phencyclidine,
such as P.C.P. (which can manifest itself as a stimulant,
depressant or hallucinogen, and is highly unpredictable);
(5) Inhalants, such
as glues or other aerosol products, which block the passage of
oxygen to the brain;
(6) Narcotic
analgesics, such as Demerol, Dilaudid, opium, heroin, Methadone
and other powerful pain relievers; and
(7) Cannabis
(marijuana and its ``family" of psychoactive plants.)
[For more detailed information on all types of
common drugs
The hope of the police is that these DEC evaluations can be used in
court to identify impairment from drugs even if the person refuses
all blood and urine testing. Absent a blood or urine test or an
admission of recent drug use, “opinion” testimony must be based upon
something more than a wild guess or speculation. Ironically, NHTSA
designed the DEC Program for post-arrest investigation, to be done
in a carefully controlled environment (as opposed to “field”
evaluation).
Numerous “task force”
officers across America have taken IACP-approved DEC classes to
enable them to identify a subject impaired by drugs. IACP is
the acronym for International Association of Chiefs of Police.
Sometimes referred to as “DREs” or “DRTs” (drug recognition
experts or drug recognition technicians), these officers
utilize a series of simple evaluations and observations to help them
identify individuals impaired by drugs.
Interestingly, even the
IACP recognizes the limitations of the DEC program. For example, the
agency recognizes that DEC-trained officers cannot identify exactly
what drug (or drugs) a person is “on.” Only one of the seven broad
“categories” listed might be identified, if the person has been
fully trained and certified. IACP has emphasized the need for an
analytical chemical test (such as
a GC-MS test)
to confirm the officer's “suspicions” about drug use. This is
because anything less than a chemical test is just “an educated
GUESS”. The law does not support guesswork in criminal
trials, because the State must prove guilt BEYOND A REASONABL DOUBT.
The DEC process includes
an alcohol screening evaluation on a roadside screening device such
as an Alco-Sensor. It also includes administering the NHTSA
standardized field sobriety tests. The twelve components of the DEC
process include:
(1) A breath alcohol
screening test to determine an estimated BAC level;
(2) Interviewing the
arresting officer, to see what was seen or heard in earlier
contact;
(3) The preliminary
examination, including questions to determine pre-existing injury,
or the existence of a health or mental condition that may mimic
drug use;
(4) Eye examination,
using both horizontal and vertical nystagmus tests, plus checking
to see if the eyes converge properly;
(5) Divided attention
tests, including walk and turn, one-leg stand, finger to nose and
the Romberg balance test;
(6) Vital signs
examination, checking pulse rate, blood pressure and temperature;
(7) Dark room
examination, including measurement of pupil size, reaction of the
eyes to light and tell-tale evidence of ingestion of drugs by nose
or by mouth;
(8) Examination of
muscle tone -- Depending on the type of drug used, muscles can be
rigid or flaccid. Examination is performed from the bicep to the
wrist;
(9) Looking for
injection sites, (i.e., needle marks or “tracks”) on the arms,
neck, legs, etc.;
(10) Questioning the
suspect -- After giving all the required “constitutional and
statutory” advisements, ask the subject questions concerning the
drug or drugs suspected to be involved;
(11) The opinion of
the DEC evaluator is used to summarize the “findings” and to fill
out reports designed to document the observed facts which support
the officer's conclusions; and
(12) A toxicological
examination (blood
test) to provide scientific, admissible evidence to
substantiate the DEC evaluator's conclusions. (This assumes that
a person submits to the test offered, where an option to NOT do so
exists.)
A properly equipped DEC
officer will have these items with him or her:
(a) blood pressure
kit;
(b) an electronic
aneroid thermometer;
(c) a pupillometer
(to measure the size of the subject's pupils);
(d) a preliminary
alcohol screening device, such as an Alco-Sensor; and
(e) access to a dark
room.
The DEC protocol teaches officers to not only look for either
contraband (illegal) or controlled substances (i.e., those drugs
which cannot be purchased without a prescription), but to take note
of over-the-counter medications that the subject has ingested which
may have caused or contributed to the suspect's impairment. Certain
allergy and cold medicines have been determined by the American
Medical Association and FDA to be particularly unsafe for persons
who are driving. These include Benadryl, Allerdryl, Contac Severe
Cold Formula, Vicks Nyquil, Trifed, Phenergan and others.
Although the use of DEC
evaluations by “DRE” officers requires extensive training, this is a
wave of the future. Decisions in several states have upheld DEC
evaluations by DRE officers, utilizing both a Daubert
analysis and a Frye analysis of admissibility. Daubert
and Frye are well-known federal cases that have carved out
the rules of when and after what type of judicial review
scientific evidence can be admitted at a trial. About 45 of the
50 states follow one standard or the other. See State v.
Klawitter, 518 N.W.2d 577 (Minn. 1994) [using a Daubert
analysis] and People v. Quinn, 580 N.Y.S.2d 818 (Suffolk
County Dist. Ct. 1991), rev'd and remanded on other grounds,
607 N.Y.S.2d 534 (Sup. Ct. App. Term 1993) [using a Frye
analysis]. See State v. Sampson, 6 P.3d 543 (Or.App.
2000) for a fascinating analysis of prior DEC admissibility in
various states.
As with other
“pro-prosecution” types of “scientific” evidence, expect courts to
overrule objections to DEC evaluations based on highly discretionary
trial court review of “proper” evidence. The need of the State to
“make our highways safe” will likely outweigh the “voodoo” nature of
the DEC “opinion” evidence. The best hope for the defense is that a
fair-minded judge will look at the highly irregular nature of this
evidence and declare “the State has not laid a proper foundation for
this scientific evidence. Therefore, this evidence is excluded.”
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