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CHALLENGING FIELD SOBRIETY TESTS

 

 

FIELD SOBRIETY TESTS ARE DESIGNED FOR FAILURE

A field sobriety test isn’t designed to objectively determine a person’s alcohol impairment; the fact that the bizarre set of motions requested by the police officer happen on the side of the road and under abnormal conditions makes the test questionable.

The real purpose of the test is so that the police can collect evidence that can serve to convict you. This procedure is highly subjective, and it is based on negative scoring: you can only lose points. Even if you perform an action flawlessly, the officer can consider it a failure for it being performed too slowly.

Some Orange County law enforcement officers still continue to use non-standardized field tests, even after exhaustive federal studies have demonstrated their ineffectiveness. These non-standardized field sobriety tests are neither scientific nor reliable, and the National Highway Traffic Safety Administration has not approved the manner in which they are conducted. The list of tests includes:

 

  • The Alphabet Test
 

  • The Finger Count Test

 
  • Counting backwards

 
  • Touching finger to nose

 
  • Modified Balance Test

 

A sufficient examination of the test being performed can easily show how ineffectual the exercises; the overwhelming preponderance of data shows that the non-standardized field sobriety tests are not good indicators of alcohol-induced driver impairment.

The National Highway Traffic Safety Administration has created a battery of (3) standardized field sobriety tests which include:

 

  • Horizontal Gaze Nystagmus (HGN)

 

  • Walk and Turn

 

  • One Leg Stand

 

As further evidence against the value of field sobriety tests, the National Highway Traffic Safety Administration hired scientist Marceline Burns to evaluate the tests. She determined that they are unreliable unless performed within the bounds of standardized testing procedures.

Moreover, a recent study was published that examined 100 video examples of officers conducting the “follow the pen” test. The study showed the every officer in every example did not perform the procedure properly. Even with training manuals, the evidence suggests that the majority of officers lack the knowledge and skill to effectively administer the tests.

Prosecutors have been known to invoke an “aura of science” in order to bolster their claims during a trial. These methods often involve field sobriety tests, and an experienced DUI trial lawyer will be able to identify the tactic and limit the prosecutor’s ability to overstate the value of the test.

 

 

10 Ways To Discredit Field Sobriety Tests

  1. Field Sobriety Tests Are Not Scientific

  2. The Officer Was Not Properly Trained

  3. The Officer Did Not Use Standardized NHTSA Tests

  4. The Officer Did Not Properly Instruct You On How To Perform Tests

  5. The Officer Did Not Use Objective Standardized Scoring Criteria

  6. The Officer Had You Perform The Tests Under Improper Conditions

  7. Your Age Or Weight Make You An Improper Candidate For Tests

  8. You Have A Physical Disability That Makes You An Improper Candidate For Tests

  9. You Have A Psychological Condition That Makes You An Improper Subject For Tests

  10. The Officer Lied About Your Performance On The Tests

HOW TO DISCREDIT FIELD SOBRIETY TESTS

In order to effectively challenge field sobriety test evidence an experienced DUI Attorney must know as much about field sobriety testing as possible.  It is critical that your DUI lawyer have all of the National Highway Traffic Safety Administrations Manuals for Standardized Field Sobriety Test Procedures. so that they know  more than the Officer who had the training because they have not only studied the Student Manual but also have the Instructors Manual and understand how the training is conducted. A DUI lawyer should further be exposed to the actual training itself and attend seminars about how to challenge police testimony concerning field sobriety testing.   It is also critical for a DUI lawyer to have and understand the numerous Validation Studies that have analyzed the efficacy and limitations of the Standardized Field Sobriety Tests

EXCEPTS FROM A NHTSA STUDENT MANUAL

HORIZONTAL GAZE NYSTAGMUS (HGN)

  1. CONDITIONS WHICH MAY INTERFERE WITH SUSPECT’S PERFORMANCE ON HGN.
    1. Wind, dust, etc., irritating the suspect’s eyes (P. VIII.-16).
    2. Visual or other distractions (always face the suspect away from rotating lights, strobe lights and traffic passing in close proximity) (P. VIII.-16).
  2. ADMINISTRATIVE PROCEDURES.
    1. Eyeglasses—have suspect remove eyeglasses (P. VIII.-6).
    2. Verbal Instructions (P. VIII.-7).
      1. “I am going to check your eyes.”
      2. “Keep your head still and follow this stimulus with your eyes only.”
      3. “Keep following the stimulus with your eyes until I tell you to stop.”
    3. Position stimulus 12 to 15 inches from suspect’s nose and slightly above eye level.
    4. Check for Equal Tracking—move stimulus smoothly across suspect’s entire field of vision. If eyes don’t track together (one lags behind the other), possible medical disorder, injury, or blindness.
    5. Check for Equal Pupil Size—if pupils are not the same size, may indicate head injury.
    6. Check for lack of smooth pursuit (high speed). (P. VIII.-7).
      1. The nose is the starting point.
      2. Check subject’s LEFT EYE, then RIGHT EYE.
      3. Stimulus must be moved steadily.
      4. Speed/Timing: For each eye check, 2 seconds out, 2 seconds back.
      5. Tester must conduct at least 2 passes for each eye. NOTE: minimum total time to per- form this check on both eyes & to repeat is 16 seconds.
      6. If eyes cannot follow a moving object smoothly, count this clue.
    7. CHECK FOR DISTINCT NYSTAGMUS AT MAXIMUM DEVIATION (slow speed) (P. VIII.-7).
      1. The nose is the starting point.
      2. Check subject’s LEFT EYE, then RIGHT EYE.
      3. Move stimulus until subject’s eye has gone as far as possible eye to the side (No white should be showing in the corner of subject’s eye).
      4. Speed/Timing: Hold the subject’s eye in that extreme position (max deviation) for at least 4 seconds.
      5. Tester must conduct at least 2 passes for each eye NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds.
      6. Jerkiness must be distinct at maximum deviation to score this clue.
    8. CHECK ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES (P. VIII.-8).
      1. The nose is the starting point.
      2. Check subject’s LEFT EYE, then RIGHT EYE.
      3. Speed/Timing: Should take 4 seconds to move stimulus from subject’s nose to shoulder (45 degrees is presumed to line up with every test subject’s shoulder).
      4. When you first observe eye jerking, stop and verify that this jerking continues. NOTE: When tester first observes subject’s eye jerking, check to ensure that some white of the eye is still showing closest to ear. If no white is showing, the tester has probably gone past the 45 degree mark.
      5. Tester must conduct at least 2 passes for each eye. NOTE: minimum total time to per- form this check on both eyes & to repeat is 20 seconds.
      6. If nystagmus is observed prior to 45 degrees, score this as a clue.
    9. TOTAL THE CLUES (P. VIII.-8).
      1. Total of 6 clues; 3 for each eye.
      2. 4 or more clues equals a 77% likelihood that subject is over .10% BAC.
    10. VERTICAL NYSTAGMUS—Used to detect impairment due to drugs like PCP, CNS depressants, etc. (P. VIII.-9).
  3. Position stimulus horizontally (parallel to the ground) about 12 to 15 inches in front of the subject nose.
  4. Instruct subject to hold his head still, and follow the stimulus with his eyes only.
  5. Raise the stimulus until the suspect’s eyes are elevated as far as possible.
  6. Hold for approximately 4 seconds.
  7. Watch closely for evidence of the eyes jerking.

 WALK & TURN (WAT)

  1. TEST CONDITIONS.
    1. Test requires a designated straight line.

NOTE: this criterion is in conflict with (2)(A)(1) immediately below (P. VIII.-12).

  1. Test should be conducted on a reasonably dry, hard, level, non-slippery surface (P. VIII.-12).
  2. Subjects over 65 years old, or persons with back, leg or middle ear problems have difficulty performing this test (P. VIII.-12).
  3. Subjects wearing shoes with heels more than 2 inches high should be given the opportunity to remove them prior to testing (P. VIII.-12).
  4. Tester should limit his movement which may distract the suspect during the test (P. VIII.-12).
  5. Conditions which may interfere with suspect’s performance on WAT include wind/weather conditions, suspect’s age, weight, and suspect’s footwear (P. VIII.-18).
  1. ADMINISTRATIVE PROCEDURES (Begins at P. VIII.-9).
    1. INSTRUCTION PHASE: Give the test subject following verbal instructions.
      1. “Place your left foot on the line.” (real or imaginary) (Demonstrate)
      2. “Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.” (Demonstrate)
      3. “Place your arms down at your sides.” (Demonstrate)
      4. “Keep this position until I tell you to begin. Do not start to walk until told to do so.” (P. VIII.-10)
      5. “Do you understand the instructions so far?” Make sure the suspect indicates understanding.
      6. “When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.” (Demonstrate 3 heel-to-toe steps.)
      7. “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this.” (Demonstrate)
      8. “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.”
      9. “Once you start walking, don’t stop until you have completed the test.”
      10. “Do you understand the instructions?” Make sure suspect understands.
      11. “Begin, and count your first step from the heel-to-toe position as ‘One.’”
    2. PERFORMANCE/GRADING THE WALK & TURN (P. VIII.-11).
      1. Suspect Cannot Keep His Balance While Listening To The Instructions.
        1. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart).
        2. Do not score this clue if suspect sways/uses his arms to balance himself, but main- tains the heel-to-toe position.
      2. Suspect Starts Before Instructions Are Finished.
      3. Suspect Stops While Walking.
        1. Record this clue if suspect pauses for several seconds.
        2. Do not record this clue if the suspect is merely walking slowly.
      4. Suspect Does Not Touch Heel-to-Toe—gap between heel and toe must be more than ½ inch.
      5. Suspect Steps Off The Line—at least one foot of the suspect must be entirely off the line.
      6. Suspect Uses Arms To Balance—arm(s) must be raised more than 6 inches from sides for this clue.
      7. Suspect Makes Improper Turn.
        1. Suspect removes front foot from the line while turning.
        2. Suspect does not follow directions as demonstrated (i.e., spins or pivots around).
      8. Suspect Uses Incorrect Number of Steps—either more or fewer steps in either direction.

NOTE: If suspect has difficulty at some point performing this test, continue the test from that particular point on, not from the beginning of the test (P. VIII.-12).

NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-18). NOTE: If suspect cannot do test, record as if all eight clues were observed (P. VIII.-11).

  1. TOTAL THE CLUES (P. VIII.-12).
  2. Total of 8 clues.
  3. The presence of 2 or more clues equals a 68% likelihood that subject is over .10% BAC.

 

ONE-LEG STAND (OLS)

 

  1. TEST CONDITIONS.
    1. Tester should remain as motionless as possible during the test so as not to interfere with sus- pect’s performance (P. VIII.-14).
    2. Test should be conducted on a reasonably dry, hard, level, non-slippery surface (P. VIII.-14).
    3. Suspects over 65 years old, or 50 pounds or more overweight or with back, leg or middle ear problems have difficulty performing this test (P. VIII.-14).
    4. Suspects wearing shoes with heels more than 2 inches high should be given the opportunity to remove their shoes prior to testing (P. VIII.-14).

NOTE: Nothing is mentioned about conditions and factors that may interfere with suspect’s performance.

  1. ADMINISTRATIVE PROCEDURES.
    1. INSTRUCTION PHASE—INITIAL  POSITIONING  &  VERBAL  INSTRUCTIONS (P. VIII.-12).
      1. “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate).
      2. “Do not start to perform the test until I tell you to do so.”
      3. “Do you understand the instructions so far?” Make sure the suspect indicates understand- ing. (P. VIII.-13)
      4. “When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.” (Demonstrate one leg stance.)
      5. “You must keep both legs straight, arms at your side.”
      6. “While holding that position, count out loud in the following manner: ‘one thousand and one, one thousand and two, one thousand and three, until told to stop.” (Demonstrate and count as follows: “one thousand and one, one thousand and two, one thousand and three, etc.”)
      7. “Keep your arms at your sides at all times and keep watching the raised foot.”
      8. “Go ahead and perform the test.”

NOTE: The tester should always time the 30 seconds. (P. VIII.-13) The test should be discontinued after 30 seconds regardless of what number the suspect is still counting at. (P. VIII.-13 & 14)

  1. PERFORMANCE/GRADING THE OLS TEST (P. VIII.-13).
    1. Suspect Sways While Balancing—side-to-side or back-and-forth motion while in one- leg stand position.
    2. Suspect Uses Arms To Balance—arms must be raised more than 6 inches from sides to count this clue. (P. VIII.-14)
    3. Suspect Hopping (to maintain balance)—resorts to hopping in order to maintain balance.
    4. Suspect Puts Foot Down—not able to maintain one-leg position, but puts foot down one or more times during 30 second count.

NOTE: If suspect puts his foot down, instruct suspect to pick his foot back up and to continue counting from the point at which the foot touched the ground (P. VIII.-13 & 14).

NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-19).

NOTE: If suspect cannot do test, or puts his foot down more than 3 times, record as if all four clues were observed (P. VIII.-14 & 19).

  1. TOTAL THE CLUES (P. VIII.-14).
    1. Total of 4 clues—The presence of 2 or more clues equals a 65% likelihood that subject is over .10% BAC.

 

 

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By Barry T. Simons: “It is my honor and privilege to fight for my clients; challenge unjust laws; protect our Constitution and to be a thorn on the side of injustice”.

By Barry T. Simons: “It is my honor and privilege to fight for my clients; challenge unjust laws; protect our Constitution and to be a thorn on the side of injustice”.