I Passed The Field Sobriety Tests But Still Got A DUI

Over 27 Years Experience in Dui Defense, Proven Track Record, Highly Rated and Reviewed Orange County Dui Defense Attorney, Former Dui Prosecutor.

Richard Wagner is one of the few California DUI defense attorneys who has successfully completed NHTSA-approved Standardized Field Sobriety Tests (SFST) instruction. He is certified in the procedures for administering and interpreting SFSTs.

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Most first DUI offenses are charged as misdemeanors under California Vehicle Code Section 23152. However, in certain circumstances—such as if your DUI caused injury to another person, or you have a prior felony DUI conviction—your first DUI can be charged as a felony.

All the field sobriety tests before you are arrested in Orange County, California are optional:

• breathalyzer – aka preliminary alcohol screeing (PAS) test^A
• walk and turn test
• one leg stand
• finger to nose
• romberg

These are all voluntary.

Also, the law requires the police officer to get your permission or consent to use the breathayzer before you get arrested for a DUI in Orange County.

Other police departments in California train their officers with CHP or National Highway Traffic Safety Administration, NHTSA² manuals.

DUI Attorney Richard Wagner has these manuals and knows if the police officer who arrested you gave the tests correctly.

To drive a car, we concentrate on several things at once or divide our attention among different tasks: react appropriately to a constantly changing environment while controlling steering, acceleration, and braking.  Therefore, there should be a correlation between the divided attention tasks and driving. Not so fast!

Just because the rooster crows when the sun comes up does not mean the rooster’s crowing caused the sun to rise.

There are 3 so-called validation field studies: 1) 1995 Colorado Study¹⁴ 2) 1997 Florida Study¹⁵ 3) 1998 San Diego Study.¹⁶

In the beginning, NHTSA manuals emphasized in bold and all caps,

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

• THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER
• THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE
• THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE.

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.¹⁷

What does validity mean?

“Validity is the extent to which an item actually measures what the researcher purports the item measures. Measurement validity is the paramount goal of data collection.” Vosk, T.W., Forensic Metrology: A Primer for Lawyers and Judges (2009) p. 7.

NHTSA no longer includes this language in later editions.

Beginning in 2002, the National Highway Traffic Safety Administration manual says,

“This significant State Supreme Court [STATE v, HOMAN (732 N.E.2d 952, OHIO 2000] case held that Standardized Field Sobriety Tests (SFSTs) conducted in a manner that departs from the methods established by the National Highway Traffic Safety Administration (NHTSA) “are inherently unreliable”. The court determined that the administration of the SFSTs, including the one-leg stand and walk-and-turn tests, must be performed in strict compliance with the directives issued by NHTSA.

… the HOMAN court found ‘it is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the results.’¹⁸

In 2004, NHTSA added the following language:

This decision was based upon an older edition of this manual where an ambiguous phrase was strictly interpreted by the court. The phrase in question only applied to the use of SFSTs for training purposes.”¹⁹

In the San Diego study (funded by NHTSA), the authors write:

“Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. …The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment.

It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA’s SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indications of a driver’s BAC, rather than indications of driving impairment. The link between BAC and driving impairment is a separate issue, involving entirely different research methods. … Thus, SFST results help officers to make accurate DWI arrest decisions even though SFSTs do not directly measure driving impairment.”²⁰

Dr. Marcelline Burns is one of the founders of and a director of the Southern California Research Institute (SCRI). NHTSA used SCRI’s research and data for its SFST training manuals. She is the co-author of the 3 NHTSA-funded reports.

None of the NHTSA-funded studies have been published in a peer-reviewed scientific journal.

What does Peer Review Mean?

“A critical step in such validation studies is their publication in peer reviewed journals, so that experts in the field can review, question, and check the repeatability of the results. These publications must include clear statements of the hypotheses under study, as well as sufficient details about the experiments, the resulting data, and the data analysis so that the studies can be replicated. Replication will expose not only additional sources of variability but also further aspects of the process, leading to greater understanding and scientific knowledge that can be used to improve the method.”  National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 114 (2009).

In a sworn deposition, Dr. Burns said the following:

Q: These tests, in and of themselves, don’t state whether the person is able to drive the
vehicle…?

A: Correct. What you’re asking is, are these tests of driving? They are not. If they were tests of driving, they would be field driving tests. I can elaborate on the reasons and everything behind that if you want, but they are not tests of driving.²¹

How much impairment on the SFSTs translates into substantial impairment in driving ability?

This to be a simple matter of common sense, for the obviously intoxicated suspects. However, it is not at all obvious that raising one’s hands 6 inches while performing Walk and Turn, or failing to touch heal to toe on one of 18 steps, or even losing one’s balance relates to impairment while driving.²²

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Other DUI Related Resources:

• What is BAC?
• California DUI 10-Day Rule
• California DUI Information
• Can I Get A Restricted License After A DUI?
• DUI DMV Hearings
• How Long Does a DUI Stay on Your Record
• Refusing Blood and Breath Tests in DUI Cases
• First DUI, Second DUI, Third DUI, Under 21 DUI
• FAQS