Category Archives: Field Sobriety Tests
The critical part of any pre-arrest investigation is the administration of the “field sobriety tests” (FSTs). These usually consist of a battery of excercises involving balance, coordination and mental agility — and are difficult to perform for even a sober person under ideal conditions (see “Field Sobriety Tests: Designed for Failure?”). Although there are many different tests (finger-to-nose, alphabet, etc.), an increasing number of law enforcement agencies are requiring their officers to use only the federally-recommended battery of three “standardized” FSTs.
The most recently developed of these is horizontal gaze nystagmus (HGN), commonly known as the “eye test”. It is particularly effective in trial not because of its accuracy, but rather because it appears to jurors as scientific in nature. As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers. (See “Nystagmus: The Eye Test”, “Nystagmus: The Eye Test (Part 2)”, and “Nystagmus: The Eye Test (Part 3)”.)
A study (Booker, 144(3) Science and Justice 133-139, 2004), has reviewed the scientific validity of the nystagmus test:
The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….
In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed . In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving while intoxicated (DWI) . This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….
Deliberate fraud. Pretty strong language for a scholarly journal. After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the authors concluded that the test was essentially without scientific validity:
The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning ‘ that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an ‘Open Records Act’ request, silence from the scientific community cannot be considered an endorsement of the program.
Has the media finally stopped buying into the propaganda from MADD and begun independently investigating the truth? Following a recent story in the Washington Post critical of Washington DC’s "zero tolerance" laws, now comes another another Post story openly questioning the validity of "field sobriety tests" — a validity which I’ve repeatedly challenged on this blog (see, for example, "Field Sobriety Tests: Designed for Failure").
Police, Lawyers And Scientists Engage in a Clumsy Dance Over the Merits Of Roadside Sobriety Tests
November 15. Stand up! Heels together. Toes out. Hands at your sides. Raise the leg of your choice right in front of you, six inches off the ground, leg straight, toe pointed. Keep your eyes on your raised toe and begin counting aloud from 1,001 until I say stop. Do you understand? Begin. One thousand one. One thousand two . . Keep going
Some dark night on the side of the road, police lights flashing in your peripheral vision, your freedom may depend on how well you do this. Did you sway? Raise your arms for balance? How about hop? Or put your foot down? If you did any two, a police officer will conclude with 65 percent accuracy, as stipulated in the prevailing science of inebriation diagnostics, that you may be too drunk to drive.
And if you bent your leg, stared straight ahead instead of at your foot or began before I said so, you may be in trouble. Police officers are taught that people under the influence of alcohol don’t follow directions well. If you made it through 30 seconds ramrod straight, congratulations! You may not be drunk. This is the one-leg stand — OLS in cop-speak. It is one of the three scientifically researched standardized field sobriety tests, blessed by the National Highway Traffic Safety Administration, that officers call "the holy grail" and give on the side of the road to help them decide whether to make a drunk driving arrest….
The one-leg stand has its skeptics and its court challenges, and plenty of them, but, according to NHTSA, the test is "easily performed by most unimpaired people." Oh, really? On a recent sunny afternoon in Dupont Circle, Franklin Urena, 32, a waiter at Chevy’s, couldn’t do it. "I have flat feet," he explained as he started hopping at the count of 1,021. His friend, Henry Van Dyke, 50, didn’t make it past the count of 1,003. "Maybe if I had a glass of wine I could do better because I wouldn’t be so self-conscious," he said. "I have no coordination."
Christine Ju, Elisa Catalano and Justin Sullivan, all in their early thirties, balanced well but didn’t follow directions. "What an absurd test," sniffed Catalano, a yoga teacher. In a completely unscientific test of 14 random people, five passed, seven failed and two were judgment calls — one because he counted quickly in Italian and the other because it was unclear whether her wobbles would count as a sway….
So hundreds of thousands of drivers have been arrested — no doubt many deservedly so — on the basis of a 30-year-old study [by Marcelline Burns] that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol…..
Some forensic psychologists and, understandably, a slew of DWI defense attorneys have been assiduously picking apart Burns’s research on the standardized field sobriety tests for years….Troll the Internet, and you will quickly find disparaging reports with titles like "Field Sobriety Tests: Designed for Failure"…. But she is unmoved. "We’re now 30 years past the development of the test. They’re widely used by police officers. Why would they use them if they don’t help them make a proper decision?" she said. "These defense attorneys write all this stuff, but never once do they suggest an optional test. What do they want the officer to do? Toss a coin?"
Not at all, says Spurgeon Cole, a forensic scientist and consultant in Georgia who has been her chief nemesis in court and expert witness for the defense for years. But maybe videotapes in patrol cars, he argues, would help remove some of the subjectivity. "We have no idea how well a sober person can perform on the SFST [field tests]. How does age or gender affect performance? How does fatigue or practice affect performance?" he has written. "Without answers to these basic questions, the SFST remain in the same category as tarot cards."
Cole did his own study, administering the tests to 21 of his students at Clemson University in South Carolina — none of whom had had a drop of alcohol — and then showing the videotape of their performance to a group of officers. They officers reported they’d arrest nearly half the students. "And these people had absolutely zero to drink," Cole said in an interview. "These tests are absolutely worthless."
(Thanks to George Bianchi of Seattle.)
You may have heard of the "eye test" in DUI investigations. This is the nystagmus field sobriety test or, more accurately (there are 47 different kinds of nystagmus), the horizontal gaze nystagmus test. It is one of the most commonly used field sobriety tests, as it is one of three which make up the federally-approved "standardized battery" of tests, or SFSTs.
The test is essentially a measurement of the movement of the eye. Simply stated, "nystagmus" refers to a distinctive involuntary jerking of the eyes; horizontal gaze nystagmus is a pendular (back and forth) movement. This type of nystagmus is commonly measured by the officer in three three different ways, each time using an object such as a pencil, penlight or finger placed a foot or so in front of the suspect’s nose and moving it slowly to the left and then to the right.
The first part of the test is to determine the angle of onset of nystagmus — that is, the angle at which the moving eye begins the jerking motion. The suspect looks straight ahead and, without moving his head, moves his eyes slowly to the right or left. The officer is supposedly able to detect when the nystagmus begins and is supposedly able to estimate the angle from straight ahead at the point where it begins. If the onset is prior to 45 degrees, in theory, the blood alcohol level will be over .05%.
The second part of the test is to note whether the jerking becomes more "distinct" when the eye is moved to the lateral extreme — that is, when there is no longer any white of the eye visible at the outside of the eye.
The third part is to determine whether there is a lack of smooth pursuit: rather than following a moving object smoothly from the beginning, the eye jumps or "tugs".
Under federal standards, the officer is supposed to use an objective scoring criteria for each of the three tests, and the total score determines whether the supect passed or failed.
In reality, few officers understand the test, administer it correctly, or use objective scoring. Many simply report that they "detected the presence of nystagmus", and subjectively count that as a failure. It is, however, the characteristics of nystagmus, not the simple presence, which is relevant to determining possible impairment. And, unfortunately, many things cause nystagmus and some of us have it under normal conditions.
More on nystagmus next week….
On January 18, 2005, the U.S. Supreme Court declined to review a state supreme court case endorsing the nonconsensual extraction of a blood sample from a DUI suspect — after he had already consented to three earlier breath tests. On February 19, 2002, police in Wisconsin pulled over Jacob Faust as he left a bar. Faust admitted that he had five brandies and failed the field sobriety tests. He voluntarily submitted to a roadside breath test; the results indicated a blood-alcohol concentration of .13% — well above Wisconsin’s .08% legal limit. He was arrested and, at the police station, agreed to take another breath test. Two separate tests on the breathalyzer indicated BACs of .09%. The officer then asked Faust to submit to the withdrawal of a blood sample.
Having already taken three breath tests, Faust finally refused further testing. He was immediately served with a notice of license suspension for refusing and taken to a hospital where a blood sample was drawn. The result of the blood test was .10%, almost the same as at the station. At a suppression hearing, the officer admitted it was not departmental policy to demand further tests and he did not suspect the use of drugs: he simply wanted "additional evidence" because Faust was only .01% over the limit. The trial court granted the motion to suppress, and the Court of Appeals affiirmed:
"Once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exists."
In a 4-3 decision, the Wisconsin Supreme Court reversed, holding that "(t)he nature of the evidence sought — that is, the rapid dissipation of alcohol from the bloodstream — not the existence of other evidence, determines the exigency." (Of course, by this reasoning the police can take as many chemical tests — 15 or 20 — as they want; there is almost no limit since alcohol will continue to dissipate for hours.) Amazingly, the Court further found that the police had a right to additional tests since they can’t predict whether a breath test will be found reliable in court. (In a footnote (fn28), the Wisconsin Supreme Court may have noted the real reason for this blatantly dishonest opinion: "There were 292 people killed and 6,570 injured as a result of alcohol-related motor vehicle crashes in Wisconsin during the year 2002…" In other words, the ends justify the means — the Constitution notwithstanding.) One of the three dissenting justices observed:
Without consent, without a warrant, and without exigent circumstances, the forced blood test in the present case violated the United States Constitution… The majority’s argument is essentially that because law enforcement officers do not know what will happen at trial (and no one does, of course), it was reasonable for them to take as many valid tests of the suspect’s blood alcohol as they thought necessary to sustain a conviction."
The U.S. Supreme Court denied a writ of certiorari (refused to hear the case). Wisconsin v. Faust, #04-471. Police are now apparently constitutionally free to give blood-alcohol tests as many times as they wish.
Most drunk driving arrests take place at night, often 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 10:00am to "closing time", 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. The circadian rhythm is that 24-hour biological alarm clock in each of our bodies, most 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. It is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not. Specifically, 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…must be attributable to circadian change and susceptibility of the body to its effect."