Category: Field Tests (SFSTs)

Standardized Field Sobriety Tests: “Your Drunk Tests Are Hard”

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Standardized Field Sobriety Tests

standardized field sobriety testsOne of the areas where a DUI attorney’s experience is most obvious is in the cross-examination of the arresting officer on the issue of the standardized field sobriety tests.  The National Highway Traffic and Safety Administration (NHTSA) determines which tests, if any, is correlated with impairment by alcohol. Due to extensive testing, NHTSA determined that three tests were specific for alcohol intoxication: the HGN (horizontal gaze nystagmus), the walk & turn test and the one leg stand test. This three-test battery are now referred to as the “standardized field sobriety tests.”

Why Is This Important?

Because the officer is using the non-standardized field sobriety tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific and legal footing. Therefore, your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment. Hence, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O’Donnell].

In addition, the Second District Court of Appeals ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975. The Ohio Supreme Court ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

“All I do is DUI defense”

Since 1995, I made a practice of defending the accused drunk driver since 1995. Twice a year, I volunteer at the police academy as an instructor. I teach potential police officers how DUI attorneys challenge the standardized field sobriety tests. Especially relevant, I lecture on topics related to the standardized field sobriety tests. Credentials are important. Therefore, I have been certified in the field tests. I am as qualified as any law enforcement officer to administer and evaluate the tests. In addition, I have trained as a DRE (drug recognition expert). It is my goal to provide you with a thorough and complete defense. Call me at (937) 318-1384 to schedule a free consultation. Pulled over? Call my 24/7 DUI Hotline at (937) 776-2671.

The Finger Dexterity Test

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In the movie, The Man With Two Brains, Steve Martin’s character is subject to ridiculous roadside sobriety tests. Some of the tests to which Ohio drivers are subjected are also suspect.  One such test is the Finger Dexterity test.

While not part of the three-test Standardized Field Sobriety Test battery, the Finger Dexterity test is prescribed by officer training as a tool to be used to determine if the officer is justified in continuing the detention of the driver.  If reasonable articulable suspicion of impairment is shown, the officer is justified in asking the driver to exit the car to take standardized tests. The test is not scientifically validated to demonstrate impairment, but Ohio police officers use it anyway.  The non-standardized tests are allowed into evidence despite their lack of correlation to impairment.

Below is an example of the Finger Dexterity test. Demonstrate the test to your friends and co-workers to see if you can spot signs of intoxication.

Defending Against Poor Standardized Field Sobriety Tests

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Failing the Roadside Field Sobriety Tests Is Not Conclusive

In this short video, available at the Dayton DUI YouTube channel, I give an important analogy about interpreting the Standardized Field Sobriety Tests given as part of most DUI arrests. Without proper context, you can be made to appear drunk and have your performance used against you.

If you find yourself accused of drunk driving, contact DUI attorney Charles M. Rowland II today.

alcohol on breath

Alcohol On Your Breath? So What!

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Have we reached a point where the mere presence of alcohol on the breath is enough to place a person under arrest? 

We ask this question because the “odor of an alcoholic beverage” is the first and most relied upon clue an officer notes in his or her report.  Not only does it determine that the driver has been drinking but provides legal justification (reasonable suspicion) for continuing the stop for a DUI/OVI investigation.  Courts allow an officer to testify as to the odor and the strength of that odor as a basis for continuing the detention. See State v. Evans, Id.

Once this threshold is met, the officer can ask the individual to step out of the vehicle to take standardized field sobriety tests. This author has long argued that the “standardized field sobriety tests” are not “standardized” (every time is different); not field (the conditions are variable); do not test for sobriety/alcohol impairment (correlation impairment is not proven); and they are not tests (as they lack the necessary scientific reliability, accuracy and sensitivity to qualify as tests).  So if the tests are faulty and biased we have essentially allowed “odor” to become determinative.

What this means is that the subjective opinion of the police officer, based on the odor of your breath can mean the difference between sleeping in your bed or in jail.  The rationale of most officers is that they can determine, based on the strength of the odor, a person’s level of impairment. But can they?

In a study on the ability to detect use by odors, 20 experienced officers were asked to detect an alcohol odor from 14 subjects (BAC range 0-0.13%). Subjects were hidden behind a screen and asked to blow through a 6-inch tube, with the police officer’s nose at the end of the tube So how did they do? Officers were unable to identify the beverage (e.g. beer, wine, bourbon, or vodka) and odor strength estimates were unrelated to BAC levels. [Moskowitz H, Burns M, Ferguson S., Police Officers’ Detection of Breath Odors From Alcohol Ingestion. Accid Anal Prev 1999 May; 31(3):175-180 p. 175.] This finding should be a limitation on the power of the police, not a justification for arrest.

 

DUI

What Is The One Leg Stand Test?

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THE ONE LEG STAND TEST

In this 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 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 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998).  As stated above, the validity one leg stand test results are dependent upon law enforcement officers following the established, standardized procedures for test administration and scoring.  The criteria to establish a proper test are set forth in the NHTSA manaual as follows:

  • Requirement of a reasonably dry, hard, level, and non-slippery surface.
  • Is the individual over 65 years of age? Did officer question whether individual was over 65 years of age?
  • Did officer ask the individual whether he or she has any back, leg or middle ear problems?
  • Did the officer check to see whether the suspect was overweight by 50 or more pounds?
  • Did the officer check to see whether individual is wearing heels more than 2” high and if so, did he give them the opportunity to remove their shoes?
  • “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate)
  • “Do not start to perform the test until I tell you to do so.”
  • “Do you understand the instructions so far? (Make sure suspect indicates understanding).”
  • “When I tell you to start, raise one leg, either leg, with the foot approximately 6 inches off the ground, keeping your raised foot parallel to the ground.” (Demonstrate one-leg stance.)
  • “You must keep both legs straight, arms at your side.”
  • “While holding that position, count out loud in the following manner: one thousand and one, one thousand and two, one thousand and three, until told to stop.”
  • Demonstrate a count as follows: one thousand and one, one thousand and two, one thousand and three, etc.
  • “Officer should not look at his foot when conducting the demonstration” – OFFICER SAFETY
  • “Keep you arms at your sides at all times and keep watching the raised foot.”
  • “Do you understand?” (Make sure the suspect indicates understanding.)
  • “Go ahead and perform the test.”
  • “Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.”
  • Observe the suspect from a safe distance.
  • “If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground.”
  • “If the suspect counts very slowly, terminate the test after 30 seconds.”
  • “Observe the suspect from a safe distance and remain as motionless as possible during the test so as not to interfere.”

Information obtained from www.nhtsa.gov and is considered public information provided at www.ohiopd.com

 SO WHAT’S THE PROBLEM?

Recall the indicators of impairment:

  1. swaying while balancing,
  2. using arms to balance,
  3. hopping to maintain balance, and
  4. putting the foot down.

The One leg stand test requires your body to something unnatural; maintain a rigid body structure while precariously balanced.   The most natural reaction to being on one foot is to sway to find your center of gravity while lifting your arms like a tightrope walker.   Why do humans do this?  This technique provides several advantages. It distributes mass away from the pivot point and moves the center of mass out. This reduces angular velocity because her center of mass is now swinging through a longer arc. It takes longer to sweep out the same angle because the center of mass has a longer distance to go. The result is less tipping.  Millions of years of evolution have designed complex vestibular systems and wired our brains to act this way.  Unfortunately, swaying and holding your arms out will be counted as indicators of impairment according to the government.

As any skipping child will tell you, hopping is an instinctive way to quickly correct the body when attempting to locate the center of gravity. Again law enforcement uses natrual and  instinctive behavior to allege intoxication.  As documented in other articles on this blog, overweight people, older people, arthritic people and the simply uncoordinated may have trouble immediately finding and maintaining balance under ideal and fair conditions.  However law enforcement will unfairly count putting a foot down as an indicator of impairment.  It is up to your attorney to make a compelling defense against the use of this biased and unfair one leg stand test to demonstrate that you were impaired.