Performance Tests

Standard Field Sobriety Tests

Police make arrests on the basis of probable cause.  This is not the same thing as that your guilt be proved "beyond reasonable doubt."  It is not a police officer's job to determine if someone is guilty.  Many police offers choose to arrest on the basis of caution.

There is much technical training for a police officer in the field of DWI.  There is no requirement  that  they must keep up their training on a yearly or any other type of basis with respect to standardized field sobriety training.  Many police officers do not make any form of notes on the side of the road with respect to numerous details.  Most police officers do not include mitigating or exculpatory information in their reports, mainly negative observations.

Where there distractions during the testing?  Were you nervous or tired during the testing? If there was a video taping of the event, does it accurately depict your true state of sobriety at the time, or was it unfairly effected by perhaps traffic, road surface, poor lighting, noise, or lack of sound. What is your true balance and coordination? Do you have any physical disabilities that can cause false results?

•  HORIZONTAL GAZE NYSTAGMUS

The horizontal gaze nystagmus test is a neurological test that for years has been utilized by doctors trained to recognize deviations in the pupil of the eye when the eye follows an object from side to side, or more commonly described as jerky eye movements.

The Police have been using this technique to help them determine if a driver is under the influence of alcohol, notwithstanding the National Highway Safety Administration's statement that "many suspects will have jerky eye movements even with a 0.00% BAC" (blood alcohol content).  Inner ear problems, certain diseases and infections can cause nystagmus. Unbelievably, consumption of common substances as caffeine, nicotine and aspirin can cause nystagmus!

Roadside tests are voluntary. This means the police cannot force a driver to perform roadside tests.  The problem with roadside tests is that they are tests that are designed for failure. Further, it is the police arresting you who decide if you've passed. There is no real grading system. Try standing, sober, on the side of the highway with cars zooming by and walk a simulated line, that isn't really there, in bad light (most DWI arrests occur at night) and usually on an uneven surface) and see how well you do. It seems that no one ever passes them!

With the horizontal gaze nystagmus test, usually a policeman, with no medical training, is attempting to determine the reaction of your eye pupils, while holding a flashlight with one hand, a pencil with the other, while standing on the side of the road, in the dead of night.

Road side tests have always been suspect because of a lack of objective criteria as to whether or not the subject "passed" or flunked the test. The real purpose of such tests are not to determine whether you will be arrested or released at the scene, but rather to mount additional evidence against the person being accused.

Refuse the roadside tests, including the Horizontal Gaze Nystagmus test!

Remember, these tests are so unreliable and subjective that even a successfully completed test can be reported by law enforcement as evidence of an innocent person's guilt!

•  WALK AND TURN

There are two stages in the walk-and-turn test: (1) the instruction stage, and (2) the walking stage. In the instruction stage, the subject is directed to stand on a line with his feet in the heel-to-toe position (left foot in front of right), keep his arms at his sides, and listen to instructions and not begin until being told to do so. The subject is instructed to take nine steps, heel-to-toe, along a straight designated line while counting the steps out loud and watching his feet, and then turn and return in the same manner.

The officer is trained to look for four eight cues of impairment:

During the Instruction Stage:
  1. loses balance during the instructions (by breaking away from the heel-to-toe stance)
  2. starts walking before the instructions are finished

During the Walking Stage:
  3. stops while walking to steady self
  4. does not touch heel-to-toe (by missing by at least one-half inch)
  5. steps off the line
  6. uses arms for balance (by six inches or more)
  7. loses balance or turns improperly or
  8. takes the wrong number of steps

Officers are trained to administer the walk-and-turn test on a hard, dry, and non-slippery surface, and in a well illuminated area. Officers are also instructed that people more than 60 years old, over 50 pounds overweight, or with physical impairments that affect their balance should not be given the test. Officers are taught that a straight line that the suspect can see must be used, and to remain motionless and stand three to four feet away from the suspect during the test. Last, officers are trained that individuals wearing heels more than two inches high should be given an opportunity to remove their shoes.

Officers are trained that if a suspect exhibits two or more cues, there is a 68% probability that he has a B.A.C. of .10 or more.

•  ONE LEG STAND

There are two stages to the one-leg-stand test: (1) the instruction stage, and (2) the balancing and counting stage.

In the instruction stage, the suspect must stand with his feet together with his arms at their sides. The subject is instructed to stand with one foot of his choice approximately six inches off the ground, toes pointed out, and count aloud by thousands (One thousand-one, one thousand-two, etc.) while looking at the elevated foot until told to put the foot down. The suspect must be told not to hop or sway and not to use his arms for balance.

The officer is trained to look for four cues of impairment:

1. swaying while balancing (a noticeable sway in a side to side or back and forth motion),

2. using arms to balance (arms must raise from sides more than six inches),

3. hopping to maintain balance, and putting the foot down.

Like the walk-and-turn test, officers are trained to administer the one-leg-stand test on a hard, dry, and non-slippery surface, and in a well illuminated area. Officers are also instructed that people more than 60 years old, over 50 pounds overweight, or with physical impairments that affect their balance should not be given the test. Officers are also instructed to remain motionless during the test and stand three away from the suspect. Last, officers are trained that individuals wearing heels more than two inches high should be given an opportunity to remove their shoes.

Officers are trained that if a suspect exhibits two or more cues, there is a 65% probability that he has a B.A.C. of .10 or more.

CONCLUSION

Officers are trained that the three Standardized Field Sobriety Tests (HGN, one-leg-stand, and walk-and-turn) are the only field sobriety tests which are scientifically validated in assessing intoxication (at or above .10 B.A.C.) Officers are trained that other sobriety tests (e.g., picking up coins, sway test, counting backwards) have no scientific validity and have a 50% chance of being able to accurately detect intoxication. Officers are, however, instructed (and it is very much emphasized) that the SFSTs are validated only when the tests are administered in the prescribed, standardized manner, and only when the standardized cues are used to assess the suspect's performance, and only when the standardized criteria are employed to interpret that performance. If any of one of the standardized field sobriety test elements is changed, the validity is compromised.