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Field Sobriety Tests

Roadside Agility Tests

Do I have to take Roadside ‘sobriety’ tests?
NO! What most people don't know is that these tests/exercises are not mandatory! However, the officer who stopped your car won't tell you this and will use the results of the tests to justify your arrest and to accumulate evidence to be used against you in court or at the Department of Motor Vehicles. Remember, it is your right to politely refuse to accept the invitation to submit to any Roadside Agility Exercises.

All too often, Courts are willing to accept hokey field sobriety tests simply because they "seem" to be reliable. Courts regularly and without question, accept sway tests (frequently with the suspect’s eyes closed), finger to nose tests (again with eyes closed), alphabet tests, finger counting tests and other similar tests, as reliable evidence of intoxication, simply because they "seem" to indicate intoxication. Frequently, Courts will rely on observations from these tests without having any testimony of Standardized Field Sobriety tests before them.

Many tests have never been subjected to scientific study and are unreliable because they are not standardized. Since no procedure exists to administer these tests, there is no way to determine if tests are given the same way each time. Obviously, if the scientific method serves as the basis for establishing the reliability of a test, the test must be standardized. (studied and performed the same way every time) This is the case with Standardized Field Sobriety Tests which require strict adherence to established procedures in explaining, demonstrating and then administering these tests.

The Standardized Field Sobriety Test Battery (SFST)

SFSTis a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DUI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP. The three tests of the SFST are:

*Horizontal gaze nystagmus (HGN)

*Walk-and-turn

*One-leg stand

These tests are administered systematically and are evaluated according to measured responses of the suspect.

HGN Testing

Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object.

In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater.

NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. ( and wrong 23 % of the time) HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Divided Attention Testing

The walk-and-turn test and one-leg stand test are “divided attention” tests that require a suspect to listen to and follow instructions while performing physical movements.

In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater.

In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater.

The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony. Because SFST is administered according to national standards and is supported by significant research, it has greater credibility than mere subjective testimony.

What should be emphasized is that the HGN and other divided attention tests are sensitive to measuring sobriety when the tests are done correctly. The “opposite side of the coin” is that they are equally not sensitive to measuring sobriety when they are done incorrectly.

If the sobriety tests are not administered properly they loose their sensitivity and the foundational validity upon which they were created may be compromised. In short, if the sobriety tests are not administered in a standardized manner and in accordance with the protocols that were validated in the laboratory, then the tests and results are not reliable regarding measuring what they were designed to measure.

Regarding validity NHTSA says the following:
“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 SUSPECTS PERFORMANCE, THE STANDARDIZED CRITERIA ARE EMPLOYEED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED THE VALIDITY IS COMPROMISED” (NHTSA, 2002, P.VIII- 19).

Alternative Testing Methods

Most law enforcement agencies use a number of tests which have not been studied or standardized. Such as counting aloud, reciting the alphabet, or finger dexterity tests, standing on one leg or ‘flapping-hand’ may be administered. Several appellate court decisions have indicated that, if you administer a test that requires the subject to respond orally in other than a routine information-giving fashion, such as requiring them to indicate the date of their sixth birthday, and if they are in custody at the time, you should administer the Miranda warning first, because you are seeking information from them that is testimonial or communicative in nature. Because these tests are not standardized the reliabilty is questionable at best. Nonetheless, courts routinely let them into evidence as if they were the same as SFST’s.

SAMPLE MOTION TO CHALLENGE OR SUPPRESS FIELD SOBRIETY TESTS:

IN THE SUPERIOR COURT STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA, )

Plaintiff, )

v. )

Case No. M-05-102 )

JOSE CUERVO, )

Defendant. )

MOTION TO EXCLUDE FIELD SOBRIETY EXERCISES EVIDENCE

Comes the Defendant, Jose Cuervo, appearing specially, by his/her attorneys, THE PHILLIPS LAW OFFICES, upon all of the files, records and proceedings heretofore had herein, respectfully moves this Court for the entry of an Order suppressing for use as evidence at the trial of this action all evidence derived, directly or indirectly, as a consequence of the Defendant’s performance of field sobriety exercises, upon the following grounds:

1. The field sobriety exercises administered by the officer were administered improperly; therefore, the “results” of such exercises may not lawfully be received as evidence. Specifically, the officer required the Defendant to perform field sobriety maneuvers which were not administered in the standardized manner established by the National Highway Traffic Safety Administration (NHTSA).

2. The validity and accuracy of the field sobriety tests are compromised if not administered in a prescribed manner based upon scientific testing.

3. The only testing as to the validity of field sobriety exercises has been done using the standardized battery of field sobriety tests as set forth by NHTSA. In this case, the exercises were not administered in the manner prescribed by NHTSA. Moreover, a number of the maneuvers the officer required the Defendant to perform have never been scientifically studied to determine whether or not they are probative of either impairment or a specific blood alcohol level.

4. Field sobriety “testing” which is not conducted in strict compliance with standardized testing procedures is inherently unreliable. State v. Homan, 732 N.E.2d 952, 955 (Ohio 2000).v 5. Because the arresting officer failed to “substantially comply,” let alone strictly comply, with NHTSA’s standardized testing procedures, the field sobriety maneuver evidence must be suppressed for lack of foundation and as irrelevant to this proceeding.

Wherefore, for the reasons set forth herein, Defendant respectfully moves this Court to exclude any evidence of field sobriety exercises unless and until the State establishes a proper foundation for the admission of such evidence by providing expert testimony that these exercises are relevant under California Evidence Code.

The Defendant respectfully requests this Court conduct an evidentiary hearing of this Motion.

In support of this request, the Defendant respectfully invites this Court’s attention to the attached narrative police reports Respectfully submitted this ____ day of _______, 2009.

By: _________________________________

D. MICHAEL PHILLIPS
ATTORNEY FOR JOSE CUERVO

Please feel free to contact our office at 800.978.0186 or info@placercountyduiattorney.com for answers to any questions you may have about field sobriety testing.