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"Mediocrity finds safety in standardization."

Frederick Crane

 

STANDARDS FOR THE STANDARDIZED FIELD

SOBRIETY TESTING (SFST) PROGRAM

 

Note:  This is prosecution oriented information written with a view towards law enforcement and justification of the Field Sobriety Test (FSTs) Battery.  Please be aware that FSTs are fraught with problems, inaccuracies, false and voodoo science, and just plain misunderstanding in their administration and application

  • Psychophysical tests should require evaluation of the subject's appearance and condition, ability to follow instructions, as well as balance and coordination. These types of tests are called Divided Attention Tests. They require the subject to concentrate on more than one thing at a time. They divide the subject's attention between mental and physical tasks.

  • Studies have shown that a person who is under the influence of an alcoholic beverage may be able to perform one of these tasks but rarely both. If under the influence of an alcoholic beverage, people are likely to make certain predictable errors while attempting these tasks.

  • Since the mid 1970's, the National Highway Traffic Safety Administration (NHTSA), with the cooperation and assistance of the law enforcement community, has conducted research that resulted in the development of a battery of three standardized field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn and the One Leg Stand) to assist police officers in detecting impaired drivers. These tests, formerly referred to as Improved Sobriety Tests, are now the Standard that the Federal Government wants to be utilized and is in fact taught by the New Jersey State Police.

  • The program, which was previously termed the Improved Sobriety Testing, was validated in laboratory and field studies conducted by the Southern California Research Institute. These tests were initially developed by the Los Angeles Police Department Training in how to conduct the tests is included in the NHTSA course "DWI Detection and Standardized Field Sobriety Testing."

  • In 1986, the Advisory Committee on Highway Safety of the International Association of Chiefs of Police (IACP) passed a resolution which recommended that law enforcement agencies adopt and implement the field sobriety testing program developed by NHTSA. As the program has grown, it has become apparent that in order to insure continued success, nationally accepted standards must be established. These standards which establish criteria for the selection and training of SFST practitioners would help insure the continued high level of success of the SFST program. In 1992, the IACP Highway Safety Committee recommended the development of this system of nationally accepted standards.

  • In April of 1992, the IACP and NHTSA sponsored a meeting at the headquarters of IACP in Arlington,Virginia. Persons invited to this meeting included SFST instructors from several states, curriculum specialists and training administrators. The participants met in working groups to reach a consensus concerning the many issues relating to the SFST program and to develop recommended minimum standards to the IACP Advisory Committee on Highway Safety. The standards were drafted and presented to the committee for their review at the mid-year meeting in June 1992.

  • The Advisory Committee on Highway Safety by resolution adopted the National Standards for the SFST Program. (The Standards were subsequently approved by voting membership of the IACP). In order to maintain credibility and integrity of the program, agencies that use a training program other than that is currently approved by the IACP must have the alternative curriculum approved by the IACP Advisory Committee on Highway Safety as meeting the required learning objectives. This is supported by the National Highway Traffic Safety Administration.

  • Presently, SFST Training must be 16 hours in length and include at least two controlled drinking sessions utilizing volunteer drinkers. This is accordance with section 1.2 of the Standards For Training In Standardized Field Sobriety Testing.

  • In section 1.4 in order to satisfactorily complete the classroom portion of the training, SFST candidates must complete the IACP-approved final examination with a score of not less than eighty percent. Candidates scoring less than 80% on the final may be retested one time under the supervision of a SFST instructor. The retest shall be completed not less than 15 nor more than 30 days following the completion of the classroom training. The examination used shall not have been administered to the candidate previously. If the candidate does not achieve a passing score on reexamination, the candidate must retake the classroom portion of the training and pass the final examination.

  • In section III it is recommended that each agency develop refresher or in service training, as needed, to ensure that SFST trained personnel maintain their proficiency in the administration of their total DUI/DWI enforcement program.

  • The NJSP requires that the student obtain 20 practice tests prior to being considered certified in the Horizontal Gaze Nystagmus. There is no time limit on when these tests can be obtained. The U.S. D.O.T. requires 35 practice tests within a six month period. A refusal can not be considered a practice test as the evaluation of the suspect must be corroborated by a blood alcohol reading. The officer is trained to conduct the HGN test last during his practice test period and not to formulate an opinion based on the results or use it for probable cause to arrest. They are told not to document the test due to this.

  • At no time may a person that is tested be used more than once on a practice test. As a result of this it is necessary to review the documentation of the practice tests in order to determine if the practitioner was properly recommended for certification.

  • STANDARDS FOR THE STANDARDIZED FIELD SOBRIETY TESTING PROGRAM

    • SOBRIETY TESTING (SFST) PROGRAM - The standard that all of these tests must adhere to is that the average sober person must be able to perform them successfully. This standard creates an objective test rather than a subjective test. Without having met this standard the test will lose all or some of its validity.  The most reliable psychophysical tests are referred to as Divided Attention tests which require evaluation of the subject's appearance and condition, ability to follow instructions, as well as balance and coordination.  These types of tests are called Divided Attention tests since they require the subject to concentrate on more than one thing at a time.  They divide the subject's attention between mental and physical tasks.

    • Since the mid 1970's, the National Highway Traffic Safety Administration(NHTSA), with the cooperation and assistance of the law enforcement community, has conducted research that resulted in the development of a battery of three standardized field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn, and the One Leg Stand) to assist police officers in making DWI arrest decisions. These tests, formerly referred to as Improved Sobriety Tests, are now the Standard that the Federal Government sanctions and police officers are trained in these tests nationwide.

    • The program, which was previously termed the Improved Sobriety Testing, was validated in laboratory and field studies conducted by the Southern California Research Institute. These tests were initially developed by the Los Angeles police department. Training in how to conduct the tests is included in the NHTSA course "DWI Detection and Standardized Field Sobriety Testing." In 1992, the IACP Highway Safety Committee recommended the development of this system of nationally accepted standards.

    • The Advisory Committee on Highway Safety by resolution adopted the National Standards for the SFST Program. (The Standards were subsequently approved by voting membership of the IACP.) In order to maintain credibility and integrity of the program, agencies that use a training program other than that is currently approved by the IACP must have the alternative curriculum approved by the IACP Advisory Committee on Highway Safety as meeting the required learning objectives. This is apparently supported by the National Highway Traffic Safety Administration.

    • Presently, SFST Training must be 16 hours in length and include at least two controlled drinking sessions utilizing volunteer drinkers. This is accordance with section 1.2 of the Standards For Training In Standardized Field Sobriety Testing.

    • In section 1.4 in order to satisfactorily complete the classroom portion of the training, SFST candidates must complete the IACP-approved final examination with a score of not less than eighty percent. Candidates scoring less than 80% on the final may be retested one time under the supervision of a SFST instructor. The retest shall be completed not less than 15 nor more than 30 days following the completion of the classroom training. The examination used shall not have been administered to the candidate previously. If the candidate does not achieve a passing score on reexamination, the candidate must retake the classroom portion of the training and pass the final examination.

    • In section III it is recommended that each agency develop refresher or in service training, as needed, to ensure that SFST trained personnel maintain their proficiency in the administration of their total DUI/DWI enforcement program.

  • The Administration of the Standardized Field Sobriety Tests

  • Horizontal Gaze Nystagmus

    • Nystagmus simply means an involuntary jerking of the eyeballs. This jerking becomes more distinct and obvious as the amount of alcohol increases in the subject's bloodstream. Alcohol will enhance the nystagmus in order to make it more readily noticeable. If under the influence of an alcoholic beverage, the subject is powerless to stop or control it. For the most part, it is unconscious. The subject is unaware that the nystagmus is happening, but some individuals claim they can feel the jerking occur.

    • The police officer is trained in the Standardized Field Sobriety Testing Course to ideally utilize a penlight at roadside to assist in the administration and observation of nystagmus in the suspect's eyes. This stimulus can be as simple as your index finger or pen.

    • Use of a flashlight is not recommended due to the probability of casting of shadows which will make it more difficult to make a fair assessment of the presence of nystagmus. Depending on the location of the flashlight, it can also cause an artificial blinding and/or cast shadows which make the nystagmus more difficult to observe.

    • The Horizontal Gaze Nystagmus Test is not a test of vision but it is imperative that the suspect have vision in both eyes in order to be able to follow the stimulus so that an accurate scoring of this test can be made. The suspect is instructed to keep the head still and straight while following the stimulus until told to stop. In order to prevent a movement of the subject's head during testing, a person is instructed to place both fists together under their chin to act as a brace against this.

    • The stimulus must be twelve to fifteen inches in front of the suspect's eyes for ease of focus. The subjects eyes must be checked for the ability to track together. The stimulus is moved across the subject's entire field of vision, all the way to the right and back again all the way to the left. It should take two seconds out and two seconds back. At least two passes must be made for each eye and each clue. The officer must check to see if the eyes track the stimulus together or if one lags behind. If the eyes do not track the stimulus together, it could indicate a possible medical disorder, injury or blindness. They must then check to see if both pupils are if equal size. If they are not then there is a probability of a head injury. The stimulus is held in the middle of the face when checking the pupil size.

    • The officer is trained to receive an acknowledgement from the suspect that the stimulus is at a comfortable distance from the suspect's eyes and to document same. This can be accomplished by having them touch the stimulus with their finger.

    • Eyeglasses must be removed in order to make a more accurate determination. Eyeglasses may impede the person's peripheral vision and may impede the cop's ability to observed eye carefully. Recent information reveals that Contacts do not have to be removed.. The officer is trained to make note of the presence of contact lenses. A person without vision in one eye, such as a glass eye should not be given this test.

    • NOTE:  IF THE SUSPECT HAS AN OBVIOUS EYE DISORDER OR ARTIFICIAL EYE, HGN SHOULD NOT BE ADMINISTERED

    • It is improper to evaluate one eye and double the score. You cannot assume that the other eye will render the same results. With the lazy eye condition, the officer is trained not to administer this test. Recent information indicates that color blindness does not affect this test. Certain individuals have a pathological nystagmus which is normal, and natural for that person.

    • Three to four percent of the general population have a natural or normal nystagmus without having consumed any alcohol at all. In the Final Report of March 1981 entitled "Development And Field Test Of Psychophysical Tests For DWI Arrest" which was prepared for the U.S. D.O.T. National Highway Traffic Safety Administration" (NHTSA), this report advises that nystagmus could be the result of brain damage, of illness {e.g., Korsakoff's syndrome} or of unknown etiology. A large disparity between the eyes may indicate a medical problem.

    • In particular, NHTSA does not support the allegation that onset angle of Nystagmus can reliably be used to estimate BAC, and considers any such estimation to be misuse of the Horizontal Gaze Nystagmus test. The NJSP requires that the student obtain 20 practice tests prior to being considered certified in the Horizontal Gaze Nystagmus. There is no time limit on when these tests can be obtained. A refusal can not be considered a practice test as the evaluation of the suspect must be corroborated by a blood alcohol reading.

    • In New Jersey, the officer is trained to conduct the HGN test last during his practice test period and not to formulate an opinion based on the results or use it for probable cause to arrest. They are told not to document the test due to this. At no time may a person that is tested be used more than once on a practice test. At an accident scene, due to the occurrence of a concussion, this test should not be administered.

    • The stimulus must be placed twelve to fifteen inches in front of the suspect's face. The stimulus should be held above eye level, so that the eyes are wide open. Due to narrowness of certain individuals eyes it becomes more difficult to make a fair evaluation of the nystagmus unless the eyes are wide open.

    • The officer cannot simply believe he sees nystagmus, it must be obvious and distinct. The officer is trained to have the suspect look into a quiet background, away from the police cruiser overhead lights and traffic passing in close proximity. This may induce a condition known as opto-kinetic nystagmus. Numerous visual or other distractions may impede this test such as rain, snow, drizzle and traffic, to name a few.

    • Opto-kinetic nystagmus can occur when a person focuses on several objects at one time or objects that are moving away. An example of this is when a person looks at objects out the window of a fast moving train. This is the reason that officers are instructed that the quiet background to perform this test should be away from the view of passing motorists and bright or rotating lights.

    • Nystagmus is the involuntary jerking of the eyes. The first clue is known as Smooth Pursuit. The officer is looking for the suspect's inability to pursue a moving stimulus smoothly while focusing the stimulus being moved horizontally, from side to side. If the suspect moves his head to the side at any time, the test is invalid and should not be scored.

    • Smooth pursuit is commonly described as a marble rolling across a smooth pane of glass. An example of lack of smooth pursuit is that same marble rolled across sandpaper. The officer is instructed to check both eyes, starting with the left eye first by moving the object to the officer's right. The object must be moved smoothly, at a speed of about two seconds to bring the suspect's eye as far to the side as it can go. Any choppy, shaky or fast hand movements by the officer may induce a nystagmus in the suspect's eyes and invalidate the scoring and test.

    • The stimulus is then moved across the subject's face, checking the right eye and moving the stimulus as far to the side as it can go. Movement of the stimulus should take approx. two seconds out and two seconds back for each eye. This procedure is repeated.  Each eye must be checked with two or more passes. This is to insure that one is absolutely certain they are seeing a nystagmus. Once this clue is observed, the suspect is assessed one point for each eye that a lack of smooth pursuit is observed. The mere fact that this clue is seen in one eye, is no guarantee that it will be exhibited in the other eye. This is considered the easiest clue to see.

    • The eyes are then checked for Distinct Jerkiness at Maximum Deviation. The stimulus is moved to the side until the left eye has gone as far to the side as possible. At maximum deviation, no sclera or white will be showing in the corner of the eyeball. The officer must hold the eyeball at that position for a minimum four seconds, and observe the eyeball for distinct jerkiness. The jerkiness must be both distinct and obvious. 

    • If the officer is unable to make this distinction from a slight nystagmus, the benefit of the doubt must be given the suspect. A common error is failing to bring the eyes out to side as far as they can go or returning the stimulus too quickly. This leads to an incorrect scoring. The criteria of no white showing in the corner of the eye must be met. This is also a common oversight of the officer. Nystagmus is commonly and incorrectly scored when the officer does not hold the stimulus out to the side for the required 4 seconds.  Fatigue Nystagmus may be evident when the eyes are held too long at maximum deviation, such as more than 30 seconds.

    • In approximately 50% of the suspects, a physiological nystagmus will be apparent when the eye initially arrives at maximum deviation. This is due to a person not normally following an object all the way to the side with their eyes. Instead a person commonly turns their head to view that object. Consequently, a certain degree of uncomfortableness is experienced. This would cause a slight twitching of the eyes at this location, having nothing to do with alcohol consumption. If the officer brings the eyes out to the side and then immediately brings them back, he most probably scored this slight twitching inappropriately as a clue.

    • Everyone has physiological nystagmus. It is not visible to the naked eye. It becomes more obvious and distinct as the blood alcohol level increases. The normal physiological purpose of this nystagmus is to exercise the eye muscles, lubricate them, and prevent atrophy. Remember, the jerkiness must be distinct and obvious to be scored a point.

    • The final clue is known as Angle of Onset. This is the most difficult to evaluate. If a suspect exhibits this clue in one eye, the probability increases that all the other clues will be seen as well. This does not work in reverse though. If a suspect has any of the first two clues, it is no guarantee that the third clue will be there. Because the 45-degree angle is a key factor in assessing a suspect's degree of alcohol influence, it is important to know how to estimate that angle.

    • In the manual, for practical purposes only, an eight inch square template is used to demonstrate and assist in estimating this angle. When used, this devise must be held up so that the suspect's nose is above the diagonal line. One edge of the template is centered on the nose and perpendicular to or at right angles to the face. The person is told to follow the stimulus until they are looking down the 45-degree diagonal. This template is only used for practice purposes in order to recognize the angle.

    • A rule of thumb in estimating the 45-degree angle, is observing the stimulus halfway between the suspect's ear and nose on the side being tested or just outside the shoulder area.

    • The estimation of this angle is critical, since studies have shown that as the alcohol increases the angle will decrease. This estimation for a specific BAC is not sanctioned by NHTSA or in the manual. This test should not be used to estimate a specific amount of alcohol in the bloodstream. In order to properly score this part of the test, the officer must move the object to the 45-degree angle of gaze, taking about four seconds. As the eye follows the object, jerking may be seen. If nystagmus is observed, the stimulus is stopped. The officer must make an observe the nystagmus to have continued. If it continues, then the officer must make sure that there is still white showing in the corner of the eye.

    • The angle is then estimated. If it is prior to forty five degrees the point is scored. If the nystagmus does not continue, the object must continue to be moved until the jerking is observed again and continues or until the 45-degree angle is reached. If no white of the eye is showing, the eye has either been taken too far to the right, which would be maximum deviation that is being evaluated, or the person has unusual eyes that will not deviate very far to the side. The criterion of onset before 45-degrees only can be used if some white can be seen at the outside of the eye. Too often the officer incorrectly estimates the angle or scores this with no white showing in the corner of the eye or both.

    • The reliability of this test depends on the proper administration, proper scoring, and proper training being adhered to. The degree of reliability attached to this test is 77 percent. Based upon the officer's training, a score of four points out of a maximum of six, instructs the officer to reach a decision point to arrest the suspect for a violation of the New Jersey Drinking Driving Law. It should be noted that false positive and negatives can occur. To the best of my knowledge, approximately three or four subject's during State Police controlled drinking exercises have scored zero points on this test, yet had a BAC above a .10% and showed little or no other signs of intoxication. This test is not valid with a subject in a supine position.

    • It can be administered to a seated or standing individual as long as they are erect and outside the vehicle. It should not be administered while a person is seated in their vehicle, especially with the window closed. At an accident scene, with a suspect lying down this test would be invalid due to possible positional alcohol nystagmus being the cause of the nystagmus encountered. This is a vestibular type of nystagmus that is evident when the amount of alcohol in the vestibular system is in unequal proportions to the amount of alcohol in the bloodstream and reacts to gravity such as the changing position of the head.

    • The officer is also trained at the conclusion of HGN, to check for Vertical Gaze Nystagmus or VGN. This is commonly used by the Drug Recognition Technician or Expert to determine impairment due to certain drugs. The VGN test is simple to administer. The stimulus is once again positioned 12 to 15 inches in front of the person's face. It is positioned horizontally in front of the face. The person must hold the head still and is instructed in same. They must follow the stimulus with their eyes as the stimulus or object is raised until the person's eyes are elevated as far as they can go. The object is held for four seconds and nystagmus or evidence of jerking is watched for.

    • The ADMINISTRATIVE PROCEDURES of the HGN test are:

      • 1.) Eyeglasses/Contacts

      • 2.) Verbal Instructions

      • 3.) Positioning of the Object (12-15 inches)

      • 4.) Tracking Ability

      • 5.) Check for Pupil Size

      • 6.) Lack of Smooth Pursuit

      • 7.) Distinct Nystagmus at Maximum Deviation

      • 8.) Angle of Onset of Nystagmus Prior to 45 Degrees

      • 9.) Total The Clues-Decision Point 4

      • 10.)Vertical Gaze Nystagmus

  • Walk and Turn Test

    • This test requires a hard, dry, level, non-slipping surface with sufficient room for the suspect to complete nine heel-to-toe steps. It should be administered under relatively safe conditions. This test loses some validity when conducted in certain wind/weather conditions contrary to this criteria. The manual advises that a straight line should be clearly visible on the surface. Conditions must be such that the suspect would be in no danger if he or she were to fall. The subject and the officer's safety should be considered at all times. If these conditions do not exist, the manual advises that the suspects should be asked to perform this test elsewhere or only the HGN test should be used.

    • There are some people that this test should not be given. The average sober person would have difficulty under these conditions. People more than sixty five years of age, over fifty pounds overweight, or with any physical impairments that would affect their ability to balance should not be given this test. The officer is trained to take this into account when developing their probable cause to arrest. They should eliminate these conditions being present before they begin the test.

    • Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes. Individuals who can not see out of one eye may also have trouble with this test due to poor depth perception. They should not be given this test.

    • The Walk and Turn test is an objective test based upon certain predictable errors that a person under the influence may display. It has a set scoring criteria, specific scoring factors and administrative procedures. In order to properly administer this test it is important to understand what type of test this is. It is commonly referred to as a Divided Attention Test because it divides the suspect's attention between mental and physical tasks.

    • The physical tasks include balance and coordination while the mental tasks include comprehension of verbal instructions, processing of information and recall of memory. While a person may be able to perform one task they may not be able to perform the other if under the influence of an alcoholic beverage.

    • The officer must observe the suspect from three or four feet away and remain motionless while the suspect performs the test. Being too close or excessive motion may affect the reliability of this test. The officer must give good verbal instructions and accompany the test with a complete demonstration. The suspect must understand the instructions and acknowledge understanding prior to the test beginning. The officer should document that affirmative response. This test is scored in relation to eight scoring factors that can be seen in two separate stages. The first stage of this test is called the Instruction Stage.

    • This will set the stage for the entire test. If the officer does not follow training and procedure during this stage, it may affect the validity of the entire test. The officer must verbally tell the suspect to place their left foot on the line and to place their own left foot on the line during demonstration. The person is then told to place their right foot on the line, ahead of their left foot, with the heel of the right foot against the toe of the left foot. This is also demonstrated. The person is then told to place their arms down at their side. They are instructed to maintain this position until told to begin and not to start until told to do so. They must then indicate an understanding of the test after being asked if they understand.

    • In the absence of demonstration, the validity of the test is affected. The officer should make sure the right foot is in front of the left foot to start, for standardization purposes. This is important for the subsequent walking stage, specifically in the evaluation of the turn, so that a person is not "wrong footed" as it is commonly described. If the suspect is instructed or demonstrated improperly it may affect the suspect during this part of the test. After placing the person in the starting position, the officer then explains the test requirements, using verbal instructions and demonstration.

    • There are two scoring factors that can assessed to the suspect's performance during the Instruction Phase. If the suspect cannot keep balance while listening to the instructions, that is when his feet actually break apart. This item is only scored if the suspect does not maintain the heel to toe position throughout the instructions. The officer is trained to be conservative in their scoring and not to score a point if the suspect sways or uses the arms to balance but maintains the starting position during this stage.

    • A second scoring factor is known as starting too soon. This is given when the starts to walk before the officer instructs them to do so. This can only be scored if the officer specifically instructed the suspect not to start until told to begin and the suspect stated they understood this instruction.

    • The second stage of this test is known as the Walking Stage. The suspect is informed again that when he is told to start, they must take nine heel to toe steps down the line, turn around, and take nine heel to toe steps back. The officer must demonstrate two or three heel to toe steps for the suspect. The officer then informs the suspect and demonstrates how and when the turn is to be executed. They are shown to keep the foot on the line, and turn by taking a series of small steps. If the officer demonstrates or instructs with the incorrect foot the suspects turn may be affected and incorrectly scored. This is also known as "wrong footing". The officer informs the suspect to keep their arms at their sides while walking, watch their feet at all times, and to count their steps out loud. They must be advised not to stop once they start walking and not until they complete the test. If the officer does not receive an affirmative response of understanding the test may not be scored fairly and properly, thereby invalidating the results.

    • The maximum score obtained on this test is eight. There are six scoring factors that can be observed in the walking stage. The first one is stopping while walking to steady themselves. The officer can not score this item if the suspect is merely walking too slow. The suspect must pause for several seconds after one step. If this occurs, the officer is trained to have the suspect begin from the point of difficulty instead of starting over. This test loses sensitivity if repeated several times. The next scoring factor is not touching heel to toe. The suspect must leave a one half inch or more space between the heel and toe on any step. This is only scored once no matter how many times it appears. The feet do not have to actually touch on these steps.

    • The officer can score a point if the suspect steps off the line. This means that one of the feet must be entirely off the line and not merely diagonal or not straight along the line. Even if the suspect steps off one or two times, they are only given one point.

    • As previously mentioned, during the instruction stage if the suspect sways or uses their arms for balance a point can not be scored. A point can only be scored during the walking stage when the suspect raises one or both arms more than six inches from the side in order to maintain balance. This should take into consideration that this distance may be the normal position of the arms, as in some bodybuilders. Any benefit of the doubt must be given to the suspect. The mere raising of the arms is not a point. The arms do not have to remain exactly at the side. If they are raised less than six inches, no points can be assessed.

    • The next point is for an losing balance while turning. This item can only be scored if the suspect removes both feet from the line while turning or does not take several small steps, and pivots in one movement as in an about face movement. This would have been contrary to the directions given. It is imperative that the officer has demonstrated and articulated this movement properly in order to be scored. It is important that the officer be conservative in their evaluation of this turn and not be overly critical.

    • Finally, the last scoring factor is when the suspect takes the incorrect amount of steps. This item is scored only once, even if an incorrect amount of steps are taken in both directions. The suspect was instructed to look down at their feet while performing this stage of the test and to count their steps out loud. If they do not look down at their feet or do not count out loud they can not be scored a point as these are not one of the scoring factors.

    • An officer is trained to document these observations but not to score them as part of the test.

    • There are two ways that the suspect can receive a maximum of eight points on this test. If they step off the line three or more times or they can not do the test. If they can not do the test, this must be explained by the officer. A degree of reliability has been attached to this test of 68 percent. If the suspect receives a minimum of two points on this test, the officer is trained to use this as probable cause to believe that the suspect is under the influence of an alcoholic beverage and to make an arrest.

  • One Leg Stand Test

    • The current manual advise that this test must be performed on a reasonably level and smooth surface. There should be adequate lighting for the suspect to have a visual frame of reference. Conditions must be such that the suspect would be in no danger if he or she were to fall. Certain wind/weather conditions obviously may interfere with and affect the validity of this test. This test should not be given to persons who are more than sixty five years of age, more than fifty pounds overweight, or with physical impairments that interfere with balance. Persons with injuries to their legs and inner ear disorders may have difficulty with this test. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes.It is imperative that the officer observe the suspect from at least three feet away, and remain as motionless as possible while the suspect is performing this test, so as not to interfere with the test.

    • This test also has two separate stages. The first stage is also called the Instruction Stage. The test is initiated by giving verbal instructions, followed by and accompanied by demonstration. The officer is trained to advise the suspect to stand with their feet together and arms down at their sides.

    • The officer must demonstrate this. The suspect should be told not to start the test until told to do so and acknowledge that they understand the instructions. This acknowledgement should be documented. There are no scoring factors involved until the suspect is into the next stage which is called the Balance and Counting Stage, unless the suspect can not perform the test at all. In this case, the suspect would be given a maximum score of four points. This would necessitate explanation on the part of the officer. It cannot be scored simply when the suspect refuses to perform the test.

    • In the Balance and Counting Stage, the officer instructs the suspect to raise one leg, either leg, approximately six inches off the ground, toes pointed out. This is demonstrated by the officer. The suspect is instructed to keep both legs straight, and his arms at his side. While they are keeping that position, they must count out loud for thirty seconds, one thousand one, one thousand two, etc., until told to stop. The count is demonstrated by the officer. They are then told to keep their arms at their side at all times, and watch their raised foot throughout the entire test. The suspect must again acknowledge that they understand the instruction to retain validity of the test. The person now is told to begin the test, while the officer must always time the 30 seconds. The test cannot be allowed to exceed thirty seconds. It must be terminated by the officer when thirty seconds expire.

    • A suspect may be scored points for the following reasons. The suspect sways while balancing. The officer is trained not to be too critical in this scoring this. The suspect is a living, breathing person, and some sway will be noticed absent impairment. In order to score this point, swaying should be marked, such as a back-and-forth motion while the suspect maintains the one-leg-stand position.

    • The next scoring factor is using the arms for balance. It must be six or more inches from the side of the body. This distance from the body should be graded conservatively, taking into account the normal position such as in the case of bodybuilders. The arms do not have to be exactly at the side and can be raised slightly without being scored as long as they are less than six inches from the side.

    • If the suspect puts their foot down less than three times, they are only given one point for this scoring factor. This can only be scored during the thirty second time frame. The suspect should be allowed to continue from the point of difficulty once the foot is dropped. This test may lose sensitivity if repeated several times.

    • The suspect has been instructed to keep watching their raised foot and to count out loud, but these are not scoring factors. They are not scored and no points assessed if the suspect does not follow these instructions. Counting too slow must be corrected by the officer stopping the test after thirty seconds have elapsed. Proceeding beyond thirty seconds may invalidate the test due to the fatigue factor and this being contrary to the design of the test. If the suspect counts too fast, have then continue until thirty seconds have elapsed.

    • The final scoring factor is hopping on one foot. This can be scored only if they resort to hopping on the anchor foot in order to maintain balance. It should not be scored if the suspect is having difficulty such as moving the anchor foot back and forth. The suspect can receive a maximum score on this test in two ways. This is when the suspect puts their foot down three or more times during the thirty second count or otherwise demonstrates that they can not do the test. The officer must be able to articulate why they felt the defendant could not do this test. The degree of reliability attached to this test if it is demonstrated and scored properly is 65 percent. The officer is trained to use this as probable cause to arrest the suspect for DWI.

    • The training of the officer and the training manual advises that for purposes of the arrest report and courtroom testimony, the officer is trained that it is not simply enough to report the suspect's "score" on the three tests. The numeric scores are only important to the police officer in the field to determine probable cause. It is insufficient to secure a conviction, and must be accompanied by more descriptive evidence. The officer is trained that they must be able to describe how the suspect performed, and exactly what the suspect did when he or she performed the test and when these clues occurred. The manual provided to the officer has a standard note-taking guide which is recommended to be utilized to assist the officer and prove the case.

    • In conclusion, the three tests we have covered, are essentially the Standard that all field sobriety tests can be compared to. These tests have in the past been demonstrated to be sensitive at the .10% BAC threshold and most recently studies have revealed degrees of reliability at .08% BAC. Nowhere in any of these tests does the officer require that the suspect close their eyes to perform the test. This will invalidate the reliability of any test.

    • Studies show that closing the eyes make all of the balance and coordination tests much more difficult for sober individuals to perform. Peripheral vision plays a particularly important role in maintaining balance. By having a person close their eyes, the officer takes away their visual frame of reference necessary in order to assess the level of impairment with any degree of reliability. Nowhere in any of the SFST is a person required to close their eyes while performing any part of the tests. A test may be further compromised by placing the defendant in an imbalanced position by having them tilt their head back or bend at the waist. During over a hundred controlled drinking exercises administered or assisted by me, I have seen the vast majority of volunteers have difficulty with these type of Sway tests even when completely sober.

    • Sway is expected due to the nature of this type of test. Some sway will be observed regardless, due to the person being a living breathing being. This is demonstrated not only in the Final Report of March 1981 entitled "Development And Field Test Of Psychophysical Tests For DWI Arrest" which was prepared for the U.S. D.O.T. National Highway Traffic Safety Administration" (NHTSA) regarding studies listed in same, but also in the "Administration of the Aerospace Physiological Training Program" which is used at the U.S. Air Force School of Aerospace Medicine.

    • In the "DWI Detection and Standardized Field Sobriety Testing" student manual it emphasizes one final and major point. The validation of these tests applies only when the tests are administered in the prescribed, standardized manner; and only when the standardized clues are used to assess the suspect's performance; and only when the standardized criteria are employed to interpret that performance. It is reiterated that "If any one of the Standardized Field Sobriety test elements is changed, the validity is compromised.

    • The objective of the Standardized Field Sobriety tests are to increase arrest, decrease the average BAC of those arrested and decrease accidents related to DWI. These objectives in mind, one should question the subjective and unreliable tests that unfortunately are still most prevalent in police investigation.

Copyright �  2006 Darby Law Office

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