Category Archives: Field Sobriety Tests
I’ve written repeatedly in the past about the inherent inaccuracy and unreliability of breath testing machines (generically referred to as "breathalyzers"). See, for example, How Breathalyzers Work — and Why They Don’t, What Makes Breathalyzers Inaccurate? and Ohio Rejects Popular Breathalyzer: Accuracy Challenged. And see a treatment of the issue on my law firm’s website, Breathalyzer Accuracy.
Independent of the inherent problems in the machines and the variations of human physiology involved, a further issue has always been the reliability of the governmental crime laboratories responsible for the calibration and maintenance of the machines. See my posts, Lab Fraud Discovered in Breathalyzer Accuracy Checks, How to Prove Breathalyzer Accuracy: Falsify the Records and Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up.
As an example, consider the following recent ABC-TV news story:
Forensic Failures at State Crime Labs May Jeopardize Cases
Chicago, IL. Sept. 23 – Some drunk drivers could go free because of law and disorder at Illinois State Police crime labs.
The ABC7 I-Team uncovered a pattern of forensic failures that could put criminal cases in jeopardy and risk thousands of charges and convictions being thrown out.
Unreliability in science is like a bull in a china shop: it can wreck everything. The Illinois state crime lab is under fire by a criminal defendant who may have been wrongly charged- using evidence with inaccurate or unreliable test results – and under fire by defense attorneys and experts alarmed by what they see as shoddy science.
James Kisla struck a pedestrian on Yackly Avenue in Lisle. According to court records, a couple ran across the middle of a street, into traffic, in front of Kisla’s car.
Kisla wasn’t ticketed in the 2011 accident but a sobriety test had him just beyond the legal limit. Then Kisla’s lawyer discovered this – a 2011 internal audit of the Illinois State Police Laboratories and blood alcohol test inaccuracies.
State police officials tell the I-Team their tests results were accurate. But the audit called for corrective action – a revision of the labs’ "scientific method" and ordered "in-service training for the state police toxicology section."
Kisla’s lawyer, Don Ramsell, showed the audit to prosecutors. "The prosecutor decided not to even bring the blood test results into evidence. It only took one day after for the judge to declare Mr. Kisla innocent of all the charges," Ramsell said.
Up to 15 years in jail – but Kisla was cleared because the state police forensic tests were unreliable…
The I-Team found more lab mistakes occurring in the state’s labs. We examined these internal Illinois State Police lab audits and reports going back to 2003 and found numerous blood and urine testing errors. "Test samples (were) switched," there were "mislabeled specimens", a "mix up of results," "improper calibrations" of tests, "improper methods (were) used," and "samples wrongly destroyed."
But Ramsell says the biggest problem is none of the state’s lab results for blood and alcohol tests can be considered reliable. That is because their lab technicians have never performed "method validations" on their testing procedures – a fundamental check and balance in the science world.
"Not only is it completely unacceptable but it’s shocking that no one from the state police ever reported that to anybody," Ramsell said…
Yet the readings from these unreliable machines are automatically assumed by law to be reliable and admissible in evidence — unless the defendant can somehow prove they aren’t. And once admitted in evidence, the jury in most states is given jury instruction stating that if the reading is over .08%, the defendant is rebuttably presumed by law to be guilty. See my post, Whatever Happened to the Presumption of Innocence?.
I have never seen a police report say that a California DUI suspect “passed” the field sobriety tests performed after a DUI stop. Does that mean that all of those suspects were intoxicated? No.
This necessarily means that people can fail field sobriety tests while sober. But how?
Field sobriety tests are notoriously unreliable. Yet law enforcement agencies continue to employ the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test to determine intoxication. These are the tests that the National Highway Traffic Safety Administration has designated as standard. Other tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.
Field sobriety tests are used to gauge a person’s coordination, balance, and simple motor skills after they have consumed alcohol. And while they may, in fact, test coordination, there are a number of reasons why a sober person might fail a field sobriety test.
Needless to say, most people are both stressed and nervous when they are pulled over and asked to step out of their vehicle. The stress and nervousness inevitably make it difficult to concentrate. Yet officers regularly fail a person for having trouble following the field sobriety test instructions.
A person who is intoxicated may likely exhibit trouble with balance. Lack of balance is what officers look for when a suspected drunk driver performs field sobriety tests. However, balance can be affected by many things, one of which is inner ear problems. The inner ear contains a small organ called the labyrinth that helps us maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.
Physical problems and disabilities can also affect a person’s performance on field sobriety tests. Physical problems such as knee pain or lower back pain may make it difficult to, say, walk heel to toe in a straight line or stand on one leg perfectly still for 30 seconds.
For the same reasons, people who are older or who are overweight may also have trouble performing field sobriety tests that require coordination and balance.
While it may be dangerous to drive while tired, it is not illegal like driving under the influence. However, lack of sleep can cause many of the same symptoms as intoxication. When people are tired they can experience poor balance, lack of coordination, and trouble with motor skills. What’s more, when someone is sleep deprived and tired, they exhibit bloodshot, watery eyes. Unfortunately, bloodshot, watery eyes are amongst law enforcement’s favorite indicators of intoxication.
Perhaps one of the most powerful factors affecting a person’s purported performance on field sobriety tests is the officer’s interpretation of that person’s performance. Law enforcement officers have already decided that a person is intoxicated even before the person performs the field sobriety test. As a result, the officers are going to see what they expect (or want) to see.
I could go on with many other reasons why sober drivers fail field sobriety tests, but that would make this post extremely lengthy. Suffice it to say, field sobriety tests are unreliable and sober people do fail them.
Having said that, drivers have a right not to and should not ever agree to perform field sobriety tests because they will fail whether they were intoxicated or not.
People are often confused about whether the law requires them to take a breathalyzer during a California DUI arrest. Unfortunately, the answer is just a little more complicated than just “yes” or “no.”
I often use the term “breathalyzer” in my posts for both a preliminary alcohol screening test and a chemical breath test. They, however, are not the same thing. In fact, the type of test being administered will determine whether a person is required to take the test or not.
For chronological clarity, let’s start with the preliminary alcohol screening (PAS) test.
When an officer stops a driver and begins investigating a possible California DUI, they may conduct several field sobriety tests. These tests include the horizontal gaze nystagmus test, the one-leg stand test, or the walk and turn test. The PAS test is a breathalyzer test which is considered a field sobriety test. Like the other field sobriety tests, the PAS test is optional.
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
As a field sobriety test, the PAS test is not required. Law enforcement is required to advise that the PAS test is, in fact, voluntary. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
In other words, the PAS test is only used as a means to determine if there is enough probable cause to arrest a person for a California DUI.
However, once a person is lawfully arrested for a California DUI, California’s Implied Consent Law requires a person to submit to a chemical test which can be either a breath or a blood test.
California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
This essentially means that if you are licensed to drive in California, you have impliedly given consent to submit to a chemical test if you have been lawfully arrested for a DUI. The operative words here are “lawful arrest.” The obligation to submit to a chemical test only attaches once a person is lawfully arrested. Before that point, no obligation exists.
So then what does it mean to be lawfully arrested for a California DUI?
An officer can arrest someone if they have probable cause to believe that the person is driving drunk. Probable cause exists when an officer has reasonable and trustworthy facts that would lead a reasonable person to believe that the person has been driving drunk.
Officers obtain probable cause for a DUI arrest through the driver’s statements that they have been drinking, driving patterns consistent with intoxication, observations of signs of intoxication, and failure of field sobriety tests…including the PAS test.
The officers use the PAS test, which is optional, to determine if there is probable cause for a DUI arrest. If there is probable cause for an arrest, and a person is arrested, they must submit to a chemical test which can be either a blood or a breath test.
Bottom line is: Don’t give the officers the probable cause when you don’t have to. Like other field sobriety tests, always respectfully decline the PAS test.
(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.
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.)