Field Sobriety Tests are tools that an officer uses out in the field to help him or her form an opinion if a driver is under the influence of alcohol.
Whether or not Field Sobriety Tests are accurate to begin with is an issue in itself. The more important question, however, is whether the officer administered the tests correctly, and did the officer interpret his observations of test clues correctly.
First, a look at the different Field Sobriety Tests (FST).
The main FSTs are the Standardized Field Sobriety Tests (SFST). This is a battery of three tests that were validated by the National Highway Traffic Safety Administration (NHTSA) in the 1970s and 1980s and are deemed to be the gold standard of field sobriety tests.
“Validated” means that studies were conducted to determine if a driver has a blood alcohol concentration of at least .10% (originally). Of the several tests studied, NHTSA selected three tests: The Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn test, and the One Leg Stand test. When the government lowered the alcohol level to .08%, these tests were re-validated to the lower .08% level by conducting further studies.
Horizontal Gaze Nystagmus (HGN):
The HGN tests looks for indications of nystagmus, which is an involuntary jerking of the eyeball that occurs as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are moved to the peripheral extremes. However, when a person has alcohol in their body, the nystagmus is exaggerated and will also occur at lesser angles as the level of alcohol increases. When a person has alcohol in their system, the eyes will also have difficulty smoothly tracking a moving object.
When conducting the HGN test, the officer observes the eyes of a subject as the subject follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of nystagmus in each eye: if the eye cannot follow a moving object smoothly, if the jerking is distinct and sustained when the eye is at maximum deviation, and if the angle of onset of the jerking is prior to 45 degrees of center.
According to the validation studies, the subject is likely to have a blood alcohol concentration of 0.08% or greater if, between the two eyes, four or more clues appear.
HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
In the walk-and-turn test, the subject is directed to take nine steps, touching heel-to-toe, along a straight line. After taking the steps, the subject must turn on one foot and return in the same manner in the opposite direction.
The officer looks for eight clues: (1) the suspect cannot keep balance while listening to the instructions, (2) the subject begins the test before the instructions are finished, (3) the subject stops while walking to regain balance, (4) the subject does not touch heel-to-toe, (5) the subject uses arms to balance, (6) the subject steps off the line, (7) the subject takes an incorrect number of steps, (8) the subject makes an improper turn.
The validation studies determined that subjects who exhibit two or more of the clues will likely have a blood alcohol concentration of 0.08% or greater.
One Leg Stand:
In the one-leg stand test, the subject is instructed to stand with one foot approximately six inches off the ground and count aloud in a specified manner (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 clues: (1) the subject sways while balancing, (2) the subject uses arms to balance, (3) the subject hops on the one foot to maintain balance, (4) the subject puts the foot down before being told to do so.
The validation studies determined that subjects who exhibit two or more of the clues during the test will likely have a BAC of 0.08% or greater.
The reason that the Standardized Field Sobriety Tests are standardized is to remove as much subjectivity as possible. “Standardization” requires that these tests be administered the same way always. This means that the administration procedures must be followed as designed when administering the tests to a subject. If the tests are not administered as they are designed, the validity of the test is compromised. In other words, an officer’s opinion based on a subject’s performance of the SFSTs means very little if the officer did not administer the tests as they were designed to be administered. Garbage in, garbage out.
Alternative Field Sobriety Tests:
If for some reason the Standardized Field Sobriety Tests cannot be given, there are alternative field sobriety tests that an officer can use. It should be noted that these alternative tests are not standardized.
The Romberg Balance test was among one of the sobriety tests
considered by NHTSA to become a standardized test. The Romberg test is part of the Drug Recognition Evaluator (DRE) program. The Romberg test requires the subject to stand with his feet together, head tilted slightly back, and eyes closed while estimating the passage of 30 seconds. When the subject believes that the 30 seconds have passed, he should tilt his head forward, open
his eyes, and say, “stop.” This test is a good indicator of whether a subject is mentally impaired as it tests the internal clock of the subject.
Finger to Nose.
The Finger to Nose test was also among the tests considered by NHTSA to become a standardized test. This test requires the subject to bring the tip of the index
finger up to touch the tip of the nose while his eyes are closed, and his head is tilted slightly back. The subject will attempt this six (6) times, three (3) with each hand. The officer will instruct the subject as to which hand to use on each attempt (right, left, etc.). The Finger to Nose test differs from the other tests in that the officer must continue to give instructions to the subject throughout the test. The problem with this test is that it is extremely subjective as to what the tip of the finger is and where the tip of the nose is.
The Hand Pat test requires a subject to place one hand extended, palm up, out in front of him. The other hand is placed on top of the first with the palm facing down. The top hand then begins to pat the bottom hand. The top hand rotates 180 degrees alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The subject counts out loud, “ONE, TWO, ONE, TWO, ONE, TWO, etc.,” in relation with each pat. Again, the problem with this test is that it is highly subjective as to how the test was completed by a subject.
With this test, the subject is instructed to extend one hand directly in front of him. Open the hand with the palm facing upward. The thumb is then touched with the index finger and the subject shall count out loud, “ONE.” The thumb is then touched with the middle finger and the subject shall count out loud, “TWO.” The thumb is then touched with the ring finger and the subject shall count out loud, “THREE.” The thumb is then touched with the little finger and the subject shall count out loud, “FOUR.” The process is then reversed. The thumb is touched with the little finger and the subject shall count out loud, “FOUR.” The thumb is touched with the ring finger and the subject shall count out loud, “THREE.” The thumb is then touched with the middle finger and the subject shall count out loud, “TWO.” The thumb is then touched with the index finger and the subject shall count out loud, “ONE.” The subject is instructed to perform three (3) complete sets. Again, the problem with this test is that it is highly subjective as to how the test was completed by a subject in addition to physical issues like arthritis, etc.
Problems with SFSTs
There are many factors that might render a person unable to successfully complete one or more of the SFSTs.
For instance, regarding the HGN test, the person asked to consent to such a test might be suffering from an eye disease or condition that affects his/her ability to see and consequently confound the test and results. Some people have nystagmus naturally. Age, injury or disease could also affect the ability of a person to perform the one-leg stand test or the walk and turn test.
Moreover, none of these tests are natural movements so a nervous person on the side of the road is likely to be very unfamiliar with the test and their performance may suffer. Police officers are trained to administer and perform these tests and they have practiced them a great deal, so they are very familiar with them.
Should you agree to perform the Field Sobriety Tests if requested by an officer?
In a word, NO.
First, there is no legal requirement for any driver to perform these tests, so why do them?
Second, a driver on the side of the road has no idea what the officer is looking for as far as clues go, and the officer is not going to tell you. Your idea of passing and the officer’s idea of passing are two different things.
In addition, there is no guarantee that the officer is going to administer the tests correctly, yet the officer is going to observe the subject and then form the opinion that the subject was too impaired to drive a car safely.
More importantly prosecutors are going to focus on the clues that indicate that the driver was impaired and ignore the things that that driver did correctly. I can not tell you how many times in Trial the prosecutor has focused on all of the things that a driver did wrong and ignored the things that a driver did correctly. That alone tells you that the purpose of the tests is to pick out the things that show that a driver is impaired, not to determine if a driver is impaired or not. The driver’s performance is simply not judged objectively.
The bottom line is this: If a driver agrees to perform Field Sobriety tests, the driver is giving the officer the opportunity to say the driver is under the influence, despite the driver’s actual performance.
Why help the officer by doing something that is not in your best interest?