Field Sobriety Tests
In a typical DUI investigation, the officer asks the DUI suspect to step out of his/her car and perform a series of "Field Sobriety Tests," or “FSTs.” These roadside “tests” usually consist of a battery of three to five exercises, usually selected by the officer; and may include walk-and-turn, one-leg-stand, Horizontal Gaze Nystagmus (follow the stimulus with your eyes), fingers-to-thumb, finger-to-nose, Rhomberg (close eyes, tilt head back and count to 30), alphabet recitation, or hand-pat. These “Simon Says-like” tests of your roadside acrobatic abilities were not designed to objectively determine whether you were in fact impaired by alcohol. Police and prosecutors use them for one reason: to collect evidence against you. These tests are designed for failure and cannot be passed. So don’t be surprised when the officer says you failed miserably the “tests’ that you know you performed flawlessly.
The National Highway Transportation Safety Administration (NHTSA) conducted a series of laboratory and field studies to evaluate the accuracy of these Field Sobriety Tests in signaling whether a DUI suspect is actually impaired. Of all the field sobriety tests, NHTSA found three to be the most reliable: The Horizontal Gaze Nystagmus, The Walk and Turn, and The One Leg Stand. These three became known as the "Standardized Field Sobriety Tests" (SFSTs). NHTSA claims to have quantified that the accuracy of the SFSTs in determining whether a DUI suspect's BAC is .10 or higher:
HGN: Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
THE WALK AND TURN & ONE LEG STAND TESTS: These tests are “divided attention” tests that are supposedly easily performed by most sober people. They require a suspect to listen to and follow instructions while performing “simple” physical movements. Impaired persons, they say, have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater. The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the theory goes, the more convincing the testimony. The theory of the prosecution is that because SFST are administered according to national standards and supported by “significant research,” they have greater credibility than mere subjective testimony.
VALIDITY OF THE FIELD SOBRIETY TESTS: In reality, however, how valid are these field sobriety tests, really? Well, in 1991, a Clemson University scientist by the name of Dr. Spurgeon Cole conducted a study on the accuracy of FSTs. His staff videotaped 21 individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink to drive." Unknown to the officers, the blood-alcohol concentration of each of the 21 subjects was .00 percent; THEY WERE ALL STONE SOBER. The results: 46 percent, nearly half, of the time the officers gave their opinion that the sober subject was too drunk to drive!!! Their “expert opinions” on impairment based on FST performance were not much better than flipping a coin. Cole & Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, 79 Perceptual and Motor Skills 99 (1994). What about the new, improved "standardized" tests? Consider the research funded by the National Highway Traffic Safety Administration (NHTSA), which resulted in the later adoption of the so-called "standardized" field sobriety tests. In that study, researchers determined that the three most effective field sobriety tests (FSTs) were walk-and-turn, one-leg stand, and horizontal gaze nystagmus. Yet, even using just these supposedly more accurate tests, the researchers found that 47 percent of the subjects who would have been arrested based upon test performance actually had blood-alcohol concentrations of less than the legal limit of. 10 percent. In other words, almost half of all persons "failing" the tests were not legally under the influence of alcohol!
In 1987, many of the original researchers at the Southern California Research Institute who had been federally funded to come up with a standardized battery published findings of their research. The study concluded that FSTs do not accurately measure driving impairment. In an article entitled Sobriety Tests for the Presence of Drugs, 3(1) Alcohol, Drugs and Driving 25 (1987), researchers recognized that such tests are designed to determine balance, steadiness, and reaction time but concluded that a connection between these factors and driving ability "is not apparent since neither a steady stance nor simple movement time is essential to the safe operation of a motor vehicle." While conceding that field sobriety tests may indicate the presence of alcohol, the researchers found that they do not necessarily measure driving ability.
The fact that these tests are largely unfamiliar to most people and not well practiced, and that the tests are given under extremely adverse conditions, make them more difficult for people to perform. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of the unfamiliarity with the test, nervousness, fatigue, injuries, intimidation, weight, age, physical condition & natural coordination or lack thereof, the distraction of traffic and lights and police, weather conditions, memory, or the clarity of DUI officer's instructions.
Moreover, the scientist hired by the National Highway Traffic Safety Administration, Marceline Burns, has admitted that the field tests do not measure impairment. She has also admitted that they are unreliable unless they are administered in strict compliance with STANDARDIZED TESTING PROCEDURES. The fact is that in most Orange County DUI, Los Angeles DUI, Riverside DUI, and San Bernardino DUI investigations, these Field Sobriety Tests are not conducted in a manner which is not approved by the National Highway Traffic Safety Administration. Proper cross examination of the arresting officer can demonstrate that these exercises do not predict impairment for the purposes of driving a motor vehicle. An Experienced Fullerton DUI Lawyer like Randall T. Longwith can effectively challenge the reliability of these tests because he has the expertise to expose these tests for what they really are: a charade. In short, field sobriety tests can be effectively handled by an experienced Fullerton DUI lawyer. Call today for a FREE CONSULTATION (714) 699-4384.
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