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Motorists suspected of DUI 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 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”.
Police officer administering Horizontal Gaze Nystagmus (HGN) Evaluation as part of a police arrest. Officer may use finger, penlight or other object as the stimulus. |
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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.
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.
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.
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