I Passed The Field Sobriety Tests But Still Got A DUI
OVER 25 YEARS EXPERIENCE IN DUI DEFENSE, PROVEN TRACK RECORD, HIGHLY RATED AND REVIEWED 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. Read Richard Wagner's profile.
The California Highway Patrol probably does more DUI investigations than any other law enforcement agency in California.
According to the CHP, Field Sobriety Tests or FSTs try to evaluate a person's ability to divide their attention.1 This means Field Sobriety Tests require a person to concentrate on several things at once.
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.
Photo by Dušan veverkolog on Unsplash
Alcohol and other drugs reduce a person's ability to divide attention. The California Highway Patrol Manual claims that even when under the influence of alcohol, people can handle a single focused attention task fairly well.3
For example, a driver may be able to keep their car within the lane as long as the road is straight when the road curves, however, the impaired driver, as the CHP Manual warns, may not and run off the road.4
The government has applied the concept of divided attention to Field Sobriety Tests. Prosecution and police believe Field Sobriety Tests simulate the divided attention characteristics of driving.
They point out that to operate a vehicle safely, you must exercise the following mental and physical capabilities:
(1) Information processing.
(2) Short-term memory.
(3) Judgment and decision-making.
(4) Balance.
(5) Steady, sure reactions.
(6) Clear vision.
(7) Small muscle control.
(8) Coordination of limbs.5
Field Sobriety Tests require a person to demonstrate at least two or more of these capabilities simultaneously.6
Prosecutors and police claim FSTs are simple. This is false. They claim an average person should have no difficulty performing the tests when sober. However, this is also not true.
The fact that these tests require unfamiliar and unpracticed motor sequences may put an individual at a disadvantage when performing them. To the law enforcement officer who has demonstrated the tests many times, the motor sequences may, seem easy and straightforward. It may also be that to the casual observer that the tests are easy to perform. Yet, when an untrained individual actually performs the test, then difficulty of performing the tests at an acceptable level become evident.7
A gymnast balancing on the balance beam, which is 4 inches wide, is trained to look straight ahead to maintain balance.
However, in the Walk and Turn Test:
"While you are walking, keep your arms at your sides, watch your feet at all times..."8
"The subject should watch his/her feet while walking..."9
In the One Leg Stand Test:
"Keep your arms at your sides at all times and keep watching the raised foot."10
"The subject must keep his/her arms at his/her sides and must keep looking directly at his/her elevated foot while counting out loud ..."11
Why would they train Olympic athletes to look straight ahead to maintain their balance? But when testing your sobriety, the police tell you to look down at your feet.
“The fact that these tests are largely unfamiliar to most people and not well practiced may make it more difficult for people to perform them. 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 their unfamiliarity with the test.”12
The Clemson study found that "Forty-six percent of the officers' decisions were that an individual had 'too much to drink' from viewing the field sobriety tests."13 They could have just flipped a coin and saved everyone the trouble.
Field Sobriety Tests: What Does “Validated” mean?
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
FSTs DO NOT MEASURE DRIVING IMPAIRMENT
(Say what?!)
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
What is the Standardized Field Sobriety Tests battery?
(a) Horizontal Gaze Nystagmus (HGN): The California Highway Patrol Manual says,
"because of the unique nature of this test, it should be used only by officers who have received formal training in its administration. HGN is not a psychophysical test.23
“Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze toward the side.”24
There are several different types of nystagmus. There are also several different causes besides alcohol, including fatigue, caffeine, nicotine and even aspirin and other prescription medication.
In the HGN test, the officer looks at your eyes as you follow a slowly moving object such as a pen or tip of his finger, horizontally with your eyes.
The officer must give the HGN a certain way. The officer is trained to beware that conditions can interfere with the HGN test such as wind or dust that might irritate your eye.25 Also, you could be distracted by visually by rotating lights or traffic passing by.
Before looking for the clues, the officer must check for equal tracking, equal pupil size and resting nystagmus.26
The cop looks for 3 clues in each eye:
- Lack of smooth pursuit
- Distinct and sustained nystagmus at maximum deviation, and
- Onset of nystagmus prior to 45 degrees27
"Unfortunately, the fact that alcohol can produce horizontal gaze-evoked nystagmus has led to a "road-side" sobriety test conducted by law enforcement officers. Nystagmus as an indicator of alcohol intoxication is fraught with extraordinary pitfalls ... It seems unreasonable that such judgments should be the domain of cursorally trained law officers, no matter how intelligent, perceptive, and well-meaning they might be." 28
(b) Walk and Turn: The California Highway Patrol Manual says the Walk and Turn SFST is considered to be the most sensitive psychophysical test.29
NHTSA says, "The Walk-and-Turn test is administered and interpreted in a standardized manner, i.e., the same way every time."30
CHP does not say that, but says, "The methods used by the California Highway Patrol (CHP) and evaluate the impaired driver are consistent with National Highway Traffic Administration (NHTSA) standards."31
For the Walk and Turn test, the police must give the following instructions and demonstrations:
For standardization in the performance of this test, have the subject
- assume the heel to toe stance by giving the following verbal instructions, accompanied by demonstrations:
Instructions Stage
- Place your left foot on the line (real or imaginary).
- Place your right foot on the line ahead of the left foot, with the heel of your right foot
against the toe of the left foot. - Place your arms down at your sides.
- Maintain this position until I have completed the instructions. Do not start to walk until
told to do so. - Do you understand the instructions so far? (Make sure subject indicates understanding.)32
Walking Stage
- When I tell you to start, take nine heel to toe steps on the line, turn, and take nine heel
to toe steps down the line. - When you turn, keep the front (lead) foot on the line, and turn by taking a series of small
steps with the other foot, like this. - While you are walking, keep your arms at your sides, watch your feet at all times, and
count your steps out loud. - Once you start walking, don't stop until you have completed the test.
- Do you understand the instructions? (Make sure subject understands.)
- Instruct the person to begin the test.33
The police looks for a maximum of 8 clues but will fail you if they only find 2:
- cannot keep your balance while listening to the instructions,
- starts too soon,
- stops while walking,
- does not touch heel-to-toe,
- steps off the line,
- uses arms for balance (more than 6 inches),
- improper turn, or
- taking the incorrect number of steps.
Cannot keep balance while listening to the instructions. Do not record this clue if the subject sways or uses the arms to balance but maintains the heel-to-toe position.34
Does not touch heel to toe. The subject leaves a space of more than one half inch between the heel and toe on any step.35
Steps off the line. The subject steps so that one foot is entirely off the line.36
Uses arms to balance. The subject raises one or both arms more than 6 inches from the sides in order to maintain balance. 37
The original SCRI studies suggested that individuals over 65 years of age or people with back, leg or inner ear problems had difficulty performing this test. Also, the SCRI studies suggest that individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. Officers should consider all factors when conducting SFSTs.38
Certain individuals have difficulty with this test when sober, including: people over 65
years of age; people with back, leg, or middle-ear problems; and people with high-heeled
shoes (over two inches). We recommend that only the nystagmus test be used with the
first four categories of stopees, while people with high-heeled shoes should be asked to
remove them.39
(c) One-Leg-Stand: The California Highway Patrol Manual says the One-Leg-Stand divides the subject's attention among such “simple” tasks as balancing, listening, and counting out loud. The NHTSA Manual says for the One-Leg Stand test, the officer must give you the following instructions and demonstrations40
Instructions Stage
- Please stand with your feet together and your arms down at the sides, like this.
- Do not start to perform the test until I tell you to do so. Do you understand the instructions so far?
Balance and Counting Stage
- When I tell you to start, raise either leg with the foot approximately six inches off the
ground. - Keep both legs straight and your arms at your side.
- While holding that position, count out loud in the following manner: “one thousand one, one thousand two, one thousand three,” and so on until told to stop.41
- Keep your arms at your sides at all times and keep watching the raised foot.
- Do you understand?
- Go ahead and perform the test.
- (Officer should always time the 30 seconds.
- Test should be discontinued after 30 seconds.)42
There is a maximum number of 4 clues on this test. The police look for the following clues during the
the One leg Stand test43:
- swaying while balancing,
- using arms to balance,
- hopping to maintain balance, and
- putting your foot down.
Swaying. Slight tremors of the foot or body should not be interpreted as swaying.44
Uses arms to balance. Subject moves arms 6 or more inches from the side of the body in order to keep balance.45
The original SCRI studies suggested that individuals over 65 years of age; people with back, leg or inner ear problems; or people who are overweight by 50 or more pounds may have difficulty performing this test. Also, the SCRI studies suggest that individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.46
Certain individuals will have difficulty performing this test under sober conditions,
including: people over 65 years of age; people with leg, back, or middle ear problems;
people who are overweight by 50 or more pounds. These individuals should only be
given the nystagmus test. Suspects who are wearing over two-inch heels should remove
them before performing the test.47
Marijuana DUI Cases and FSTs
The Standardized Field Sobriety Tests do not mean the same thing with marijuana DUIs as they do with DUI alcohol.
Horizontal gaze nystagmus (HGN) is not present unless there is also alcohol impairment, and the One-Leg Stand and Walk and Turn tests are not clear indicators of either impairment or lack of impairment at lower doses.
Spurgeon Cole and Ronald H, Nowaczyk specifically caution about the 1977 NHTSA study in their scientific article published in 1994, “Field Sobriety Tests: Are They Designed for Failure?” saying “false alarms are a concern” of divided attention field sobriety testing.
“In the 1977 study, 47 % of the subjects who would have been arrested based on test performance actually had a blood alcohol concentration (BAC) lower than .10 percent, the decision level used by the officers.”
The authors further conclude:
“Problems in scoring can be attributed, in part, to the lack of standardization across many field sobriety test studies. In addition, a few miscues in performance can result in an individual being scored as impaired. For example, a person is viewed as impaired for missing two of nine points on the walk-and-turn test or two of five points on the one-leg stand test. The stringent scoring criteria as well as potential subjectivity in determining whether a point should be awarded may account for accuracy rates that vary from 72 to 96 percent amount police agencies…”
Other reports were done under contract from National Highway Traffic Safety Administration to study the three FSTs within a laboratory-controlled environment and within a field environment (The 1981 study: Development and Field Test of Psychological Tests For DWl Arrest; The 1983 study: Field Evaluation of a Behavioral Test Battery For DWl).
However, no laboratory study can reproduce the conditions of an actual arrest, which may significantly influence FST performance and negate the findings of the controlled studies.
Why Field Sobriety Tests Are Standardized
The validity of SFST results depends upon law enforcement following established, standardized procedures for test administration and scoring.
National Highway Traffic Safety Administration's Standardized Field Sobriety Test Student Manual clearly describes how the “tests” should be administered under ideal conditions, but ideal conditions rarely exist in the field.
Therefore, the best DUI Attorneys carefully and thoroughly investigate where police officers gave these tests and how they scored the results.
Were you on a gravely wet, slanted road with traffic whizzing by you? Did you get a chance to practice for the test? Were you nervous? Did you tell the cop you had an injury, but they said “go and ahead and do it anyway?”
The International Association of Chiefs of Police (IACP) adopted uniform procedures in 1992 to guide the training of Standardized Field Sobriety Test instructors and practitioners. Those standards include 24 hours of NHTSA-approved Standardized Field Sobriety Test instruction.
The procedures for administering and interpreting SFST results can be readily learned and, generally, you get better with experience.
However, it is very possible for SFST skills to get worse if not exercised regularly (e.g., absence from patrol work). Also, the SFST procedures have evolved since 1981. Changes to the procedures could likely result in an officer giving SFSTs according to outdated protocols.
Therefore, NHTSA recommends law enforcement agencies conduct refresher training for SFST instructors and practitioners.
Call 714-721-4423 to contact Richard Wagner to discuss your DUI.
LEGAL AUTHORITIES
1 Highway Patrol Manual (HPM 70.4, REVISION # 16) Driving Under the Influence (DUI) Enforcement Manual, p. 2-9.
2 National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing Participant Manual
3 Note 1.
4 Id.
5 Id.
6 Id.
7 Cole, S., & Nowaczyk, R. H. (1994) Field sobriety tests: Are they designed for failure? Perceptual and Motor Skills, 79 (1, Pt 1), 99–104 (The Clemson Study).
8 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 43 of 62.
9 Note 1, p. 2–18.
10 Note 8, p. 51 of 62.
11 Note 1, p. 2–20.
12. Note 7.
13. Id.
14 Marcelline Burns, Ph.D., and Ellen W. Anderson, A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery Final Report Submitted to Colorado Department of Transportation (November 1995) "This report was funded by the Office of Transportation Safety, Colorado Department of Transportation (utilizing National Highway Traffic Safety Administration funds..." Mean BAC of participants .152%. Sample size = 234.
15 Marcelline Burns, Ph.D., and Teresa Dioquino, A Florida Validation Study of The Standardized Field Test Battery (1997), "This research project was prepared for the State Safety Office, Department of Transportation, State of Florida in cooperation with the National Highway Traffic Safety Administration..." Mean BAC of participants .15%. Sample size = 256.
16 Marcelline Burns, Ph.D., and Jack Shuster, PhD, CPE, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (San Diego 1998) "This report documents the research activities and presents the results of a study conducted for the National Highway Traffic Safety Administration (NHTSA)..." Mean BAC of participants .138%. Sample size = 297.
17 National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing Student Manual (2000) Session VIII, p.3; (2002) Session VIII, p. 19; (September 2004) Session VIII, p. 19.
18 National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing Student Manual (2002) pp.III-9, III-10.
19 National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing Student Manual (September 2004) Session III, p.10.
20 Note 16 at pp. 27-28
21 Examination Under Oath Of Marcelline Burns, Ph.D., April 17, 1998
22 Rubenzer, S.J., The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues, Law Hum Behav (2008) 32:293–313.
23 Highway Patrol Manual (HPM) 70.4, Driving Under the Influence (DUI) Enforcement Manual (2007) p. 2-11.
24 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 7 – p. 4 of 26.
25 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 56 of 62.
26 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 15 – p. 5 of 15.
27 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 15 – p. 2 of 15.
28 William Tasman, M.D., & Edward A. Jaeger, M.D., Duane's Clinical Ophthalmology, Revised Ed. (1994) Vol. 2. Ch. 11, p. 20.
29 Highway Patrol Manual (HPM) 70.4, Driving Under the Influence (DUI) Enforcement Manual (2007) p. 2-17.
30 National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing Student Manual (2000 p. VII-4); (2002 p.VII-4); (2004 p. VII-5); (2013 Participant Manual, Session 7, p. 12 of 26)
31 Highway Patrol Manual (HPM) 70.4, Driving Under the Influence (DUI) Enforcement Manual (2007) p. 2-1.
32 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 42 of 62.
33 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 43 of 62.
34 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 44 of 62.
35 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 45 of 62.
36 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 45 of 62.
37 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 45 of 62.
38 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 41 of 62.
39 Tharp, V., Burns, M., and Moskowitz, H., DEVELOPMENT AND FIELD TEST OF PSYCHOPHYSICAL TESTS FOR DWI ARREST (March 1981) p.15, FINAL REPORT Sponsoring Agency: Department of Transportation, National Highway Traffic Safety Administration.
40 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 50 of 62.
41 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 50 of 62.
42 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 51 of 62.
43 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 51 of 62.
44 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 51 of 62.
45 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 52 of 62.
46 NHTSA, DWI Detection and Standardized Field Sobriety Testing Participant Manual (2013) Session 8 – p. 49 of 62.
47 Tharp, V., Burns, M., and Moskowitz, H., DEVELOPMENT AND FIELD TEST OF PSYCHOPHYSICAL TESTS FOR DWI ARREST (March 1981), p. 15, FINAL REPORT Sponsoring Agency: Department of Transportation, National Highway Traffic Safety Administration.
