FIELD SOBRIETY TESTING
Many people are somewhat familiar with the Standardized Field Sobriety Tests (SFSTs) from watching television, hearing stories from friends, or even seeing someone on the side of the road in the middle of the night. There are only 3 Standardized Field Sobriety Tests in Georgia. These field sobriety tests are the Horizontal Gaze Nystagmus, the 9 Step Walk and Turn (WAT), and the One Leg Stand (OLS). All the other field sobriety tests you hear about such as reciting the alphabet, counting on your fingers, finger to nose test, etc. are not Standardized Field Sobriety Tests. However, even though these tests are not SFSTs, you should not perform them because poor performance on these tests can and will be used to convict you.
One of the most important things you need to know about the field sobriety tests are that they are voluntary. The cop at the scene won’t tell you this because he wants you to take the field sobriety tests. He’ll just order you to start doing them. It is up to you to refuse them. There is no penalty against your license for failing to perform these tests the way there is if you refuse the breath test. It is entirely up to you whether or not you want to take these tests.
Why does this officer want you to take these tests?
The officer wants you to take these field sobriety tests because he wants evidence to use against you to convict you of DUI. You may be asking yourself, “What if I perform well on these tests?” I have countless clients tell me they did really well on these tests. My clients wholeheartedly believe they did do well, but when I check the police report the officer shows that they failed the tests. Why is this? Here is the 2nd most important thing to know about field sobriety tests: These tests are designed for you to fail them. Even a nearly perfect performance can, and will, earn you a failing score. Now I ask you, how many of you would take a test that was created specifically for you to fail?
The Three SFSTs and What You Need to Know About Them
Only three field sobriety tests have been “scientifically” studied, and declared to have any reliability in helping officers determine if a motorist’s blood alcohol level is above the legal limit. The limit used in these tests was .10 %.
In 1977, the Southern California Research Institute began research for the National Highway Transportation Safety Association (NHTSA) to determine which tests being used by law enforcement agencies yielded the most accurate results of whether not a motorist is under the influence of alcohol. The other objective of this research was to develop and standardize tests that would produce the most reliable evidence of impairment. After years of federal research, three tests would ultimately be classified as “Standardized Field Sobriety Tests” (SFTS) and would be sanctioned by NHSTA in 1984. These tests are the One Leg Stand Test, The Walk and Turn Test, and the Horizontal Gaze Nystagmus Test.
In promulgating these standardized field sobriety tests, NHTSA has created exacting standards and guidelines that must be followed to ensure the accuracy and reliability of these tests. Every officer who is NHTSA trained receives a manual which sets forth these exacting guidelines and procedures which are required to ensure the validity of SFSTs when they are administered to DUI suspects. The manuals clearly state that if these tests are not performed properly, or are administered without adhering to the strict NHTSA guidelines and training procedures, such actions will compromise the validity of the evaluations.
Field Sobriety Tests: Horizontal Gaze Nystagmus (HGN)
The Horizontal Gaze Nystagmus (HGN) Test, when performed properly on a medically qualified individual, has a claimed 77% reliability rating. During the HGN evaluation the officer is looking for nystagmus of the eye. Nystagmus is simply the involuntary jerking of the eye. This involuntary jerking of the eye is often compared to the movement of windshield wipers on a dry windshield, or a marble on sandpaper.
To properly administer this test the officer must:
- Hold a stimulus (usually the officer’s finger, or pen) 12 to fifteen inches from the subject’s face);
- Hold the stimulus slightly above the subject’s eye level;
- Tell the subject to follow the stimulus with only their eyes making sure they hold their head completely still;
- Move the stimulus smoothly in a straight line;
- Initially, the officer must check each eye for equal pupil size, and equal tracking. This is done to see if the subject has suffered a concussion or has a glass eye;
- The officer then checks each eye for 3 possibly clues;
- The officer will check each eye twice for each set of clues.
During this evaluation, the officer is looking for 6 clues of impairment (2 clues per eye):
- Lack of smooth pursuit;
- Distinct and sustained nystagmus at maximum deviation;
- Onset of nystgamus prior to 45 degrees.
Unless a subject has a glass eye or a serious medical issue, an officer should never have an odd number of clues on the HGN evaluation. The officer should always have 2, 4, or 6 clues. Also, each set of clues is progressive. Therefore, an officer should never notice distinct and sustained nystagmus at maximum deviation without noticing a lack of smooth pursuit, or onset of nystagmus prior to 45 degrees without observing the other four clues.
Field Sobriety Tests: The Walk and Turn Test
The Nine Step Walk and Turn evaluation, when conducted properly on a well-qualified individual on a dry, level surface, has a 68% reliability rate. Again, this leaves a 32% chance for false positives. The Walk and Turn Test is divided into two parts: the instructional phase and the walking phase.
During the instructional phase the officer has the test subject stand with the heel of his right foot touching the toe of his left foot with his hands placed at his sides. The subject is to hold this pose while the officer gives the instructions for the Walk and Turn test. If the subject breaks this pose, or begins the test before the officer instructs him to begin, the subject is given a clue for either violation.
The officer places the subject in the instructional phase by giving the following instructions:
- I want you to stand with your right foot in front of your left, with your right heel touching your left toe;
- Hold that position and keep your hands at your sides;
- Do not begin the test until I instruct you to do so;
- Do you understand?
At this time, the officer will begin to give the instructions for the rest of the test. Remember, the subject must stand heel to toe, arms at his side, and not start the test until he’s instructed to do so or he will be giving “clues” of impairment to the officer. The officer will then give the following instructions:
- I want you to take a series of nine heel to toe steps;
- As you walk, I want you to count each step out loud;
- When you take your ninth step I want you to pivot on whichever foot your ninth step is on, take a series of small steps with the other foot to turn around, and then take nine steps back counting each step out loud.
- At the same time as these instructions, the officer should be demonstrating these instructions, including the turn, as well.
- As you walk, I want you to look down at your feet, count each step out loud, keep your hands at your sides, and don’t stop the test once you have started;
- Do you understand?
During the instruction phase of the test, the officer is looking for two clues of impairment:
- The subject breaks heel to toe position.
- The subject starts the test too soon (before the officer instructs him to do so).
During the walking phase of the test, the officer is looking for six clues of impairment:
- The subject stops while walking.
- The subject misses heel to toe while walking (by at least one half inch).
- The subject raises his arms six inches or more while walking.
- The subject steps off the line.
- The subject turns improperly.
- The subject takes the wrong number of steps.
The 6 clues during the walking phase can be remembered by using the pneumonic SHORTS (Stops walking, misses Heel to toe, steps Off line, subject Raises arms, improper Turn, wrong number of Steps).
Again, one point is given for each clue observed regardless of how many times the clue is observed. Just like the One Leg Stand, two or more clues on the Walk and Turn Test is considered failing.
Field Sobriety Tests: The One Leg Stand Test
The One Leg Stand Test, when conducted properly on a qualified subject on a level and dry surface, yields a 65% accuracy rate when demonstrated and scored properly. Conversely, this means there is also a 35% chance of a false positive. Before the suspect performs the One Leg Stand Test, the officer must give the following precise instructions and demonstration:
- Instruct the subject to stand with their feet together, and place their hands at their sides;
- Instruct the subject not to begin the test until the officer instructs them to;
- Ask the subject if he/she understands;
- Instruct the subject to stand on either leg of their choosing while keeping the other leg six inches off the ground with their toes pointed forward and keeping their foot parallel to the ground;
- The officer must now demonstrate the stance;
- Instruct the subject to count out loud “One thousand one, One thousand two,” until the officer instructs them to stop;
- The officer again demonstrates the stance and the count;
- Ask the subject if he/she understands;
- Instruct the subject to begin the evaluation;
- If the subject places their foot down or interrupts the test, allow them to continue uninterrupted, without restarting the count at “one thousand one,” until the officer instructs the subject to stop.
During this evaluation, the officer is looking for four clues of impairment:
- The subject puts his/her foot down
- The subject uses their arms for balance (raising them more than 6 inches from their sides).
- The subject sways.
- The subject hops.
These clues may be remembered by using the pneumonic PUSH (Puts foot down, Uses arms, Sways, Hops).
This test is to be scored objectively giving one point for each clue observed regardless of how many times the officer observes the clue. For example, if the subject places his/her foot down 4 times during the test the officer only gives one point for “Putting foot down.” A maximum of 4 clues is possible. While the officer may only give points for the 4 clues that are established by NHTSA, the officer is encouraged to make notes regarding any other indicia of intoxication that he notices during the evaluation.
If a subject scores 2 or more clues on this evaluation he or she is said to fail the evaluation. This test is supposed to be scored objectively based on NHTSA standards and criteria, but many officers will arrest a suspect if the suspect does not perform the tests up to the officers own personal expectations regardless of what is required by NHTSA. Often, an officer will substitute his own impressions over the NHTSA criteria and arrest a DUI suspect regardless of their performance. When this fact is brought to the attention of the jury it is a powerful weapon in obtaining a “not guilty” verdict.
In summary, the National Highway Safety Transportation Authority (NHTSA) would have us believe that cumulatively, these 3 tests, if done correctly, have an 83% accuracy rate of indicating whether a subject has a BAC of .10% or more. Knowledgeable DUI attorneys know that 98% of officers conduct these tests incorrectly, or on an unqualified or unapproved individual, or score them incorrectly. In some situations, officers make all 3 of these mistakes. When done incorrectly, these field sobriety tests have ZERO percent reliability
How This Applies to Us
On many of these tests you get 1 clue no matter how many times you perform imperfectly. For example, someone on the Walk and Turn may step off the line 9 times and get only one clue whereas someone else only steps off the line once and also gets one clue. With our first subject he makes 9 bad steps and 9 good steps, and gets one clue. With our 2nd example our subject makes 1 bad step and 17 good steps, but he gets the same score as someone who took 9 bad steps. Do you begin to see how these tests are designed to fail? The tests and the scoring are simply unfair.
This bulletin is only the tip of the iceberg when it comes to SFSTs. There is much more information I can share with you on this subject.