Roadside field sobriety hocus pocus
Drivers suspected of alcohol or drug impairment are routinely asked to perform field sobriety tests by law enforcement on the side of the road.
By JIM C. KLEPPER
ITJ
7/21/2008
The National Highway Traffic Safety Administration (NHTSA) currently supports the Standardized Field Sobriety Test (SFST), which consist of three roadside tests to help law enforcement determine the probability of impairment of a driver. The specific three tests are the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT) and the One-Leg Stand (OLS).
NHTSA describes Horizontal Gaze Nystagmus as “… an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater. NHTSA research found that this test allows proper classification of approximately 88 percent of suspects (Stuster and Burns, 1998). HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.”
The HGN test is considered by many to be the most effective technique to provide evidence of alcohol in a motorist's system. The normal variation in human physical and cognitive capabilities, and the effects of alcohol tolerance, can result in uncertainties when arrest decisions are made exclusively on the basis of physical and/or cognitive performance tests. These uncertainties have resulted in many DWI suspects being released rather than detained and transported to another location for evidentiary chemical testing. This is because some experienced drinkers can perform physical and cognitive tests acceptably. However, experienced drinkers cannot conceal the physiological effects of alcohol from an officer who is skilled in HGN administration, because Horizontal Gaze Nystagmus is an involuntary reaction over which an individual has absolutely no control.
In the Walk-and-Turn test, NHTSA instructs the subject is directed, “…to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps. NHTSA research indicates that 79 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.08 or greater (Stuster and Burns, 1998).”
The One-Leg Stand test is described by NHTSA in the following manner, ”… 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).”
The Walk-and-Turn test and One-Leg Stand test are "divided attention" tests that may be performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.
The preceding information is from NHTSA in an article titled Development of a Standardized Field Sobriety Test DOT HS 809 400, November 2001.
Drivers suspected of alcohol or drug impairment are routinely asked to perform field sobriety tests by law enforcement on the side of the road. These voluntary tests allow a police officer to “subjectively” determine if the driver is alcohol or drug impaired. Anything but perfect performance on the tests may cause the officer to suspect the driver is impaired. The test failure may provide the probable cause needed to arrest the driver and then this roadside test may be admitted into evidence during any trial the driver may have.
I took the NHTSA SFST Certification Course in Atlanta, GA in August of 1995. I also took the Traffic Course for Judges at the National Judicial College in Reno, NV. The instruction and information I received has helped me greatly in defending drivers charged with alcohol and drug charges.
Many articles on defending DUI / DWI advise the defense attorney to advise his/her clients not to take any “field test”. Furthermore, the defense attorney should challenge the subjective nature of the officer’s evaluations of the test results as well as the officer’s accuracy of the administration of the tests. The attorney must attack the factual and legal issues based upon the scoring and evaluation of the field tests.
Something as simple as being too overweight with bad legs and/or feet will cause a driver sever problems while performing the voluntary field sobriety test on the side of the road. Any head cold, stopped up ears, vertigo, ear infection, blood pressure too low, diabetes, leg or hip injuries may cause a driver to have less than perfect balance for the roadside test.. We have not even discussed the added pressure of doing a roadside test in front of an officer of the law where his evaluation of your efforts may determine whether you spend the night in jail. Let us not forget the traffic a few feet away from the driver taking the test, the slope of the road, the line the officer tells you to walk may not be all that visible to you, it may just be a crack in the road, which could add additional effort in walking over uneven surfaces.
Simply put, roadside field sobriety tests are not in your best interests to agree to take. Just to show you how difficult these tests can be, take this article into the next truck stop you visit and ask six people to take the three tests described at the top of this article. You determine whether in a room that is well lit, the floor is even, there are no vehicles passing by you at 60 MPH a few feet away and no officer watching to see if he can take you to jail that the average truck driver can pass these tests.
The law is well below the 0.08 BAC the roadside tests are designed for when it comes to CDL drivers. CDL drivers are considered DUI / DWI at 0.04 BAC and even a whiff of alcohol can get a driver put out of service, and cost you your job. If you decide to drink, be responsible and do it at home and not on the road.
Listen to Attorney Jim C. Klepper discuss trucking legal issues every Tuesday morning at 7:00 Central Time on Sirius Radio Channel 147. Join Host Mark Willis as drivers call in with legal questions. You can be part of that live question and answer program by calling (888) 782-5966.
Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases. He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.
800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com.