Archive for the 'Field Sobriety Tests' Category

Will the Officer Really have Me Recite the Alphabet Backwards?

Wednesday, April 9th, 2014

(Please welcome guest blogger, Jon Ibanez!)

During conversations about field sobriety tests, I can’t even tell you how many times someone has said, “I can’t even recite the alphabet backwards while sober!” My response is that they’re right, which is why officers don’t usually ask a person to perform this task as a field sobriety test during a California DUI stop. But they can.

If the alphabet is used at all as a field sobriety test, the officer may ask a DUI suspect to recite the alphabet forward without singing. Or they may be asked to recite the alphabet forward with their eyes closed. The officer will then look for the presence of impairment indicators. These indicators include the following: Whether the DUI suspect improperly states the alphabet, whether the DUI suspect sways, opens their eyes, or needs to use his or her arms for balance.

Like other field sobriety tests, the alphabet is a divided attention test. This means that the test requires a DUI suspect to divide their attention between a mental task and a physical task.

The alphabet test is not often used because it is not endorsed by the National Traffic Safety Administration (NHTSA). This means that it is not supported by research and does not meet requirements for standardization. In other words, the alphabet test is so unreliable that the NHTSA refuses to endorse it.

Since the alphabet test is not endorsed by the NHTSA, there are no set guidelines for which an officer can administer it. Some officers may have a DUI suspect begin reciting the alphabet beginning on an arbitrary letter such as “J.” Other officers may have the DUI suspect stop at an arbitrary letter. And some may have the DUI suspect say the alphabet backwards!

Forget trying to say the alphabet backwards, the NHTSA has determined that the alphabet (forward) test fails to differentiate between drunk drivers and sober drivers.

Amongst other criticisms, the alphabet test does not account for people whose first language may not be English, people who may not have had to recite the alphabet since they were in grade school, or those who are illiterate.

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State Supreme Court: Cops Can Ignore Field Sobriety Tests – If Suspect Passes Them

Wednesday, February 26th, 2014

The latest in the DUI "double standard" department:


Tennessee Supreme Court Says Cops Can Ignore Field Sobriety Tests

Supreme Court of Tennessee rules that cops may arrest an individual even after he passes all sobriety tests

The Newspaper.com.  Feb. 24 — The Tennessee Supreme Court decided on Thursday that the only use for roadside sobriety tests is to collect evidence against motorists, using them to convict individuals for driving under the influence of alcohol (DUI). The high court justices overturned an appellate decision from 2012 that found a driver who passed six of the tests with flying colors should never have been arrested (view 2012 ruling). David D. Bell was arrested on May 13, 2009, even though the trial judge found no evidence of impairment in the sobriety tests when he reviewed the dashcam footage.

"I honestly think that he did pretty dog-gone good on the field sobriety tests, better than most I've seen," Sevier County Circuit Court Judge Rex Henry Ogle observed. "I couldn't pass them as well as he did."

On that early morning in 2009, Bell had stopped by the The Roaming Gnome Pub and Eatery located in Sevierville and had a few drinks. He made a mistake and ended up on the wrong side of the road when Sevierville Police Officer Timothy Russell came upon him. On the roadside, Bell performed the four-finger count, recited the alphabet from G to S, and identified for Officer Russell in what year he turned six. Officer Russell rated his mental acuity as "excellent." Bell also passed the one-leg stand and the walk-and-turn test.

Despite the performance, Officer Russell decided to arrest Bell. Bell moved to suppress the evidence against him, arguing that there was no probable cause for his warrantless arrest. Seeking a conviction, the Supreme Court justices looked to several other states for sympathetic rulings.

"We recognize that not all courts that have addressed this question have reached the same conclusion as the Delaware Supreme Court, the Alaska Court of Appeals, the Minnesota Court of Appeals and the Pennsylvania Commonwealth Court," Justice William C. Koch Jr wrote. "However, we have determined that the approach employed by these courts is entirely consistent with our holdings that determining the existence of probable cause to support a warrantless arrest is not a technical process. Rather, it is a process requiring reviewing courts to conduct a common-sense analysis of the facts and circumstances known to the officers at the time of arrest… we find that performance on field sobriety tests is but one of the many factors officers should consider when deciding whether to arrest a motorist for DUI or similar offenses without a warrant."

The justices reasoned that under the totality of circumstances, passing the sobriety tests is insufficient to cancel out the effect of other indications of intoxication, including the smell of alcohol and a traffic violation. For this reason, the court reversed the lower court findings and agreed with prosecutors that Officer Russell had probable cause to arrest Bell for DUI and ordered the charges to be reinstated against him. The justices noted that Bell may use his performance on the sobriety tests to raise reasonable doubt of his guilt at trial.

Of course, if the field sobriety tests had been failed, they would have been offered in trial as conclusive, scientifically-based evidence of intoxication.  But apparently they should be ignored if they are passed.  I think this is called a "no-win" scenario for the accused.

(Thanks to Ari Weiner.)
 

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Circadian Rhythm and Field Sobriety Tests

Sunday, February 2nd, 2014

Most drunk driving arrests take place at night, often well after midnight. One reason for this is that many police officers engage in "cherry picking" — that is, the illegal practice of staking out bars and restaurants from about 10:00pm to "closing time" at around 2:00am, pulling cars over on some pretext as patrons leave and drive away.

It is during this period of time that the individual’s circadian rhythm is taking effect. This is the 24-hour biological alarm clock in each of our bodies, often noticeable when we experience "jet lag".

Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning.

Unfortunately, it is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not.

British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555.

The researchers concluded that "the differences we have found (in field sobriety test performances)…must be attributable to circadian change and susceptibility of the body to its effect."
 

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