AGGRESSIVE GRAND RAPIDS DRUNK DRIVING DEFENSE LAWYERS FIGHTING FOR YOU

The National Highway Traffic Safety Administration (NHTSA) is a federal agency that issues police protocols for OWI field sobriety testing. In the 1980s, the NHTSA conducted a study and concluded that there are three Standardized Field Sobriety Tests that when administered correctly and in accordance with specific procedures and instructions, are a reliable indicator as to whether an driver may be legally intoxicated. The three tests, commonly referred to as FSTs, are:

1. The Horizontal Gaze Nystagmus (HGN) Test
2. The Walk and Turn Test (WAT)
3. The One Leg Stand Test (OLS)

There are other non-standard roadside field sobriety tests that a law enforcement officer may also administer. However, the FSTs are the only roadside tests that are arguably based on scientific studies and thus the most common sobriety tests administered by law enforcement. The NHSTA has created highly detailed procedures for the proper administration of FSTs and has also listed specific clues for law enforcement to look for as signs of possible intoxication. These rules must be followed exactly in order for the FSTs to retain their scientific reliability and thus possess any value. Likewise, the clues must be interpreted correctly. Law enforcement personnel often improperly administer the FSTs or incorrectly interpret the clues of possible intoxication. The attorneys at Springstead Bartish & Borgula Law, PLLC know the proper manner in which the FSTs need to be administered – oftentimes, better than the law enforcement personnel who administered the tests on the roadside. In some cases, the improper administration of the FSTs can invalidate the arrest altogether and result in the suppression of the evidence obtained subsequent to the arrest.

THE HORIZONTAL GAZE NYSTAGMUS (HGN) TEST

Horizontal Gaze Nystagmus refers to an involuntary jerking occurring as the eyes gaze to the side. In addition to being involuntary, the person experiencing the nystagmus is not aware that it is happening. Law enforcement personnel administer the HGN test by moving a pen or finger side to side in front of your face instructing you to follow the pen or finger with your eyes only without moving your head. During the test, law enforcement personnel look to see how your pupils react as they follow the stimulus. Specifically, they are looking to see for three specific clues:

1. As the eye move from side to side, does it move smoothly or does it jerk noticeably.  Lack of smooth pursuit from side to side is a sign of alcohol impairment.
   
2. When the eye moves as far to the side as possible, and is kept at that position for several seconds, does it jerk distinctly?  This is known as distinct and sustained nystagmus at maximum deviation and another clue of intoxication.
3. As the eye moves toward the side, does it start to jerk prior to a 45-degree angle?  Onset of nystagmus prior to 45 degrees is a sign of intoxication.

The NHSTA estimates that if four or more clues are evident, it is likely that the subject’s blood alcohol content is above .10. The NHSTA claims that when administered properly, the HGN test is 77% accurate. However, rarely, in our experience, is the HGN test administered properly.

To retain it accuracy, it is crucial that the HGN test be administered in strict compliance with the guidance with the NHSTA guidelines. These guidelines specify the speed at which the stimulus is to be moved side to side across the your face, the number of passes that need to be made, and the angle at which the stimulus needs to be held. If the guidelines are not followed exactly, than the accuracy of the test comes into question. Although law enforcement personnel are trained to administer the test, it is very easy to make mistakes and administer it incorrectly. There are other factors that may also interfere with a person’s performance of the HGN test. Wind and dust from the road may irritate a person’s eyes causing a false positive. Visual or other distractions, such as flashing lights or passing cars, may also affect performance of the test and cause false positives. The NHSTA mandates that law enforcement personnel should always face subjects away from the rotating lights of their vehicles or from passing traffic. However, many times, the officer administering this test fails to follow this very basic protocol and administers the test with the subject facing the dashboard camera and flashing lights of his vehicle.

In our experience, many law enforcement personnel fail to administer the HGN test in accordance with the NHSTA guidelines. In some instances, these mistakes are great enough such that it invalidates the reliability of the HGN and can be used as grounds for a suppression motion.

THE WALK AND TURN (W.A.T) TEST

The next test law enforcement personnel normally administer, as part of the SFST’s is the walk and turn test. During this test, the officer instructs you to walk 9 steps heal to toe along a straight line with your hands at your side. When you reach step number nine, you are instructed to pivot 180 degrees in a series of small steps while keeping the front foot on the line, and then again walk 9 steps heal toe along the same straight line to the original starting point.

Law enforcement personnel will look for the following clues during the administration of this test:

1. Cannot keep balance while listening to the instructions.  The officer will instruct you to assume the starting position for this test (standing heal to toe on an actual or imaginary line) while he recites the remaining instructions.  This is done to force you to do two things simultaneously – balance on a line and listen to specific instructions.  It is referred to as a divided attention test. Studies indicated that an impaired person cannot two both of these tasks at the same time.  Accordingly, the law enforcement personnel will be observing you even during the instruction stage to see is you can maintain your balance during this stage.  If you fail to maintain your balance or fail to maintain a heal-to-toe position, it will be recorded as a clue of intoxication.
   
2. Starts before instructions are finished.  This again relates back to the divided attention test.  If you begin the test before the officer advises he or she to do so, it will be recorded as a clue.
3. Stops while walking.
4. Does not touch heel to toe.  If you leave more than one-half inch gap between steps, it will be recorded as a clue.
5. Steps of the line.  If you step one foot entirely off the line, it will be recorded as a clue.
6. Uses arms for balance.  If you raise your arms more than six inches from your side while walking the straight line, it will be recorded as a clue.
7. Improper Turn.  If you remove your pivot foot from the line while making the turn, law enforcement will record that as a clue.  Law enforcement will also record as a clue if you fail to follow directions exactly or as demonstrated (spin instead of using a number of small steps, etc.).
8. Incorrect Number of Steps. If you take more or less steps than directed in either direction, law enforcement will record as a clue.

Based on original research, it is alleged that if you exhibit two or more clues during this test or fails to complete it, there is a 68% chance that the your blood alcohol level is above .10. That means 35% of the people who exhibit two or more pre-established indicia of intoxication really are not intoxicated.

Like the HGN test, this test only retains it scientific reliability if the law enforcement personnel administer it properly. In our experience, law enforcement personnel often fail give clear and specific instructions. For example, the officer might fail to instruct a person to keep his arms at his sides and then score the person’s use of his arms during the test at a clue. Sometimes, the officer fails to demonstrate the proper turn, or fails to instruct the subject to ensure that he touches his toe to his heel while walking the straight line. In some cases, the failure to provide clear and specific instructions can invalidate the reliability of the walk and turn test altogether.

The walk and turn test requires a designated straight line and should be conducted on a relatively level, dry, non-slippery surface. Studies have indicated individuals over 65 years of age, 50 pounds or more overweight, or people with back, leg, or middle ear problems also have problems completing the test regardless of whether they have consumed alcohol or not.

THE ONE LEG STAND TEST

For this test, the officer instructs you to stand with your feet together and your arms down at your side. At his command, you will raise one foot approximately six inches off of the ground and while holding that position and watching your foot, count out loud “one thousand and one, one thousand and two”, until told to stop.

During this test, the officer will be looking for the following clues:

1. Swaying while balancing on one foot.
   
2. Using arms for balance.  If the subject raises his arms more than six inches from his side in order to keep his balance, it will be recorded as a clue.
3. Hopping.
4. Putting your foot down. You are expected to maintain the one leg stand for 30 seconds.  Original research has indicated that people with a BAC level of .01 can maintain this position for 26 seconds but cannot make it to 30 seconds.  If you put your foot down before 30 seconds has expired, it will be recorded as a clue. The problem with this clue is that the officer never tells you that you will be holding this position for 30 seconds when he gives the instructions.

Based on original research, it is alleged that if you exhibit two or more clues during this test or fails to complete it, there is a 65% chance that the your blood alcohol level is above .10. That means 35% of the people who exhibit two or more pre-established indicia of intoxication really are not intoxicated. As already mentioned, this biggest problem with this tests that it is set up for your failure. During the instruction stage, the officer gives you no instruction regarding how long you will be expected to maintain the position or how high you should count. Most reasonable people continue to count until they reach around 12 and figure that is good enough. Consequently they stop counting and put their foot down or stop to ask the officer how much longer they need to hold this position. In doing so, they have just provided the officer with the two clues he needs to support his probable cause determination that you have failed that test.

THE NON-STANDARD FIELD SOBRIETY TESTS

In addition to the Standard Field Sobriety Tests, law enforcement personnel may also use several non-standard field sobriety tests in the course of their investigation. These tests are so unreliable that they are not even recognized by the NHTSA as, unlike the standardized field sobriety tests, no studies have been performed to test the reliability of these tests. Accordingly, law enforcement personnel rarely utilize these tests without also utilizing the standardized field sobriety tests. The non-standard field sobriety tests include:

1. 1. Rhomberg Balance Test
   2. The Finger to Nose Test
   3. Finger Count Test or Finger Tip Test
   4. The Alphabet Test
   5. Count Backwards Test
   6. Pick a Number Test

None of these tests have any scientific studies to support their reliability as a means to estimate the blood alcohol level of the subject. Accordingly, none of these tests should legally for the basis of a probable cause determination.

a. The Rhomberg Balance Test

For this test, the officer instructs you stand with your feet together, head tilted backwards, and your eyes closed. You are instructed to maintain that position while estimating a period of 30 seconds at which point you tilt your head forward and say stop.

Since this Rhomberg test is not a standardized test, there are no standardized clues to score. However, in general, the law enforcement officer will be analyzing the following three factors during the administration of this test:

The amount of swaying, if any, during the test

The subject’s ability to estimate 30 seconds

The subject’s ability to follow instructions

There are no studies that indicate how much swaying is evidence or a blood alcohol level of .10 or higher. This test is almost left entirely to the officer’s interpretation – thus the results are almost entirely arbitrary. It should not even be used by law enforcement personnel in the drunk driving investigation.

b. The Finger to Nose Test

The finger to nose test is very similar to the Rhomberg balance test. The officer instructs you to stand with your feet together and arms at your sides. Next, you are instructed to make a fist with both hands with your index finger extended. You are then instructed to close your eyes and tilt your head backwards. Finally, the officer instructs you bring your left index finger to the tip of your nose and return it to your side followed immediately by the right index finger to your nose and back to your side. You are instructed to continue this test in the following sequence: Left, Right, Left, Right, Right, Left.

The officer will be evaluating the following factors during the administration of this test:

Ability to follow instructions

Amount of swaying

Depth perception.  Did the subject touch the nose?  How quickly did he or she find the nose?

Correct touching sequence.  The switch up in the third sequence is designed to trip the subject up.  The officer will be looking to see if subject used the correct sequence.

This test shares the same shortcomings and weaknesses of the Rhomberg balance test. It is not a reliable test of anything – let alone a person’s blood alcohol level.

c. The Finger Count or Finger Tip Test

The officer will normally instruct you to put one hand in front of you with your palm facing up. You will be instructed to separately touch the tip of your thumb to you index, middle, ring, and little finger while counting out loud from one to four and then from four to one as you reverse the sequence from your little finger to your index finger. You should complete three sets of this sequence.

This test is not recognized as a standard field sobriety test by the NHTSA. No scientific studies have been conducted to determine if this test reveals anything about a person’s blood alcohol level. This test is also susceptible to the law enforcement officer’s interpretation and contains hidden traps. For example, most law enforcement officer’s will “fail” you on this test if you touch the finger pad of your thumb to the finger pads of your fingers rather than the tips.

d-f. The Alphabet Test, Count Backwards Test, and Pick a Number Test

For the Alphabet test, the officer will instruct you to say the alphabet test from a random letter in the middle of the alphabet to another random letter. For the Count Backwards test, you will be instructed to count backwards from one number to another. In both of these tests, the law enforcement officer is observing whether you can follow his instructions, say the letters or numbers in the correct sequence, and remember to stop at the number or letter instructed. For the Pick a Number test, you will be instructed to pick a number between two numbers. The officer is gauging whether you pick the right number.

The attorneys of Springstead Bartish Borgula & Lynch, P.L.L.C. understand the unreliability and pitfalls of trying to estimate a person’s blood alcohol level based upon a series of dexterity tests. In order to combat theses tests, we have studied the NHTSA Standard Field Sobriety Tests manuals and in many cases are more versed in the procedures and clues than the law enforcement personnel who use them. If you or someone you know has been charged with a drunk or drugged driving offense, call the DUI attorneys at Springstead Bartish Borgula & Lynch, P.L.L.C. today. We are here to help. Call now for a free consultation (231) 924-8700 or (616) 458-5500.