Field Sobriety Tests

Field sobriety tests are conducted to determine the level of intoxication of a person, that is, if they are under the influence of alcohol or drugs. SFST stands for Standard Field Sobriety Tests and were developed by the National Highway Traffic Safety Administration (NHTSA). These tests are typically administered roadside after an individual is stopped and suspected of being under the influence.

Types of Field Sobriety Tests

Law enforcement employs an arsenal of equipment and tests to determine how intoxicated a driver may be. A common method of testing that has been used since the advent of drunk driving laws are FST (Field Sobriety Test). Some common FSTs are HGN (Horizontal Gaze Nystagmus), one-leg-stand, walk-and-turn, finger-to-nose, and counting backwards. Each test has its own advantages and disadvantages. However, they all share the same disadvantage of relying on basic physical abilities that not all people posses.

One-Leg-Stand

As it sounds, the suspect will stand on one leg. If there is any swaying or imbalance the suspect could be charged with DUI. The test may be inaccurate if the driver is overweight, affected by prescription drugs, has poor night vision or is wearing high heel shoes.

Horizontal Gaze Nystagmus (HGN)

The HGN test is perhaps the most widely accepted and scientifically approved. The police officer will have the subject follow an object (such as a pen) while the officer checks for signs of intoxication, lack of smooth pursuit, deviation, etc. Prescription drugs and various medical conditions can also influence eye nystagmus.

Walk-And-Turn

The suspect will take 10 steps (heel to toe), then turn and repeat the 10 steps back. The officer will be checking to see if the driver is following directions properly and able to perform the physical actions without any tripping or swaying. Again, the test is making the assumption that the suspect does not have any physical condition that could impact the results.

Finger-to-Nose, Counting Backwards and Reciting the Alphabet

To perform the finger-to-nose test, the driver will extend each arm and touch the tip of their nose with their index finger. Missing the tip of the nose may result in further testing or DUI charges. Counting backwards or reciting the alphabet could be complicated by the pressure of the situation, potentially nullifying any negative results.

Rhomberg Test

As more and more Georgia Police Officer attend DRE training, the Rhomberg (or Modified Rhomberg) is becoming more popular. Again there has been no correlation between observations made by police officers using the Rhomberg Test and Impairment. In this test, the driver stands, feet together, and leans the head back to look up at the sky while holding their arms out to the side. The Police Officer then asks the driver to close his eyes and to estimate the passage of 30 seconds. Here the police officer looks for eyelid tremors, inability to estimate the passage of time, and swaying by the driver.

Test Refusal

Well-trained impaired driving lawyers know that every one of the so-called field sobriety tests used by police are not scientifically correlated to how to calculate blood alcohol level of that driver. This is why you should refuse any sobriety test offered by an officer investigating you for drunken driving or drugged driving.

Field sobriety exercises, or tests, are totally voluntary and there is no penalty for not doing them. The police don’t tell you they are voluntary. They don’t even tell you that you have an option. When you do these evaluations while you are already frightened and your adrenaline is flowing. When you’re standing on the sloped highway sometimes with pebbles and rocks on it and blue lights are going in the background. It is not an ideal condition to be doing agility exercises.

These tests are designed for you to fail. They’re going to be subjectively graded. You couldn’t pass them on carpeted floor in an air conditioned room much less on a sloped highway. Don’t attempt them. The best you can do is be reasonable and be polite. Say, “I’d like to speak to an attorney, I’m not familiar with this process, and can I call an attorney? I have his or her number.”

Reliability

EVERY knowledgeable DUI / DWI attorney will tell you to NOT attempt these police tests. That is because peer-reviewed scientific studies have concluded that the SFSTs are “designed to fail”. Here are the five most significant deficiencies in all NHTSA field sobriety tests:

• Before starting its statistical analysis in 1977, no “norms” were established, by age brackets, to know how well totally sober individuals performed.
• One Texas review of thousands of DWI arrest videos showed that 98% of all officers made errors in the instructions or administration of the SFST police tests.
• Even when NOT instructed correctly or scored correctly, the police still get to use the 3 test battery against you in court, in some states.
• Scoring is subjective, and the actual clues are often not captured on video, so the officer’s word is accepted by the jury.
• Bogus training that teaches officers false, “reliability” numbers based upon the, “validation studies” creates a need to hire an expert witness to refute these lies.

A person arrested for drunk driving is typically asked to take an HGN horizontal gaze nystagmus test, or DUI eye test. Every knowledgeable DUI lawyer knows that HGN stands for “horizontal gaze nystagmus” which is one of the field sobriety tests approved by the NHTSA.

Under NHTSA (National Highway Traffic and Safety Administration) training, the HGN test is the first roadside evaluation given. The HGN test is an eye test that mimics a medical procedure known as “lateral gaze nystagmus.” This evaluation that only medical and eye doctors use (i.e., registered nurses are NOT trained in saccadic movements and types of nystagmus like a neurologist), was one of three SFSTs that Dr. Marcelline Burns and her study team approved for use by police officers.

Ironically, Dr. Marcelline Burns is NOT qualified (and never has been) to give the HGN evaluation herself! Nor was any member of the Southern California Research team medically trained. Yet they recommended in 1981 that police use the HGN test as part of the field sobriety tests TO ARREST PEOPLE.

See this scathing appellate decision holding that she was not an expert in HGN: State v. Lasworth, 131 N.M. 736, 42 P.3d 844 (Ct. App. 2001). This decision has been adapted by government officials to try to determine which drivers show symptoms of central nervous system depression.

Reliability

While the HGN test is used by medical professionals, no medical professional uses horizontal gaze nystagmus to determine alcohol levels. The HGN test in the medical field is used to determine neurological injury or lesions in the brain. Because the federal government has the ability to create training materials for law enforcement officers without having such materials peer-reviewed for scientific accuracy, the field sobriety tests used by police officers are not “scientific” in terms of being able to produce reliable results, despite the claims of NHTSA.

From a testing and measurement perspective, a reliable “test” is one that consistently yields 90% or better repeatability. College aptitude tests like the SAT or the ACT have this proven “reliability.” Cognitive tests set up for military personnel to be screened for assignment and deployment to the best unit or division (to capitalize on their skills and capabilities) have this level of reliability.

Furthermore, the IQ tests that have been used in clinical psychology and educational psychology for a century also have this 90+ per cent (or better) level of reliability. But, none of the standardized field sobriety tests (the HGN, the walk and turn, the one leg stand tests) have this repeatability. The so-called “validation studies” authorized by NHTSA in the 1990s were not executed following the scientific method, nor were these bogus reports in any way proven to be reliable or even fair.

Avoiding the Test

Unfortunately, the voluntary field sobriety test “false tests” have been allowed in criminal cases to arrest millions of Americans when there is no scientific reliability to support the HGN test being a reliable means of identifying an impaired driver. Notice the word “voluntary,” meaning that no driver has to attempt to do these false tests. Simply say NO to ALL questioning and to all roadside evaluations.

Many people arrested for DUI ask the officer why they are being arrested. One of the most common replies from police officers is that he or she could see that the person’s eyes were not following the stimulus properly. So, drunk eyes is one of the DUI tests given by police officers as part of the field sobriety test battery. This police eye test is not much better than flipping a coin to decide who will be arrested.

Don’t play that game, and let a police officer with a high school education use a medical test — or any field sobriety tests — to decide whether you should be arrested! The HGN horizontal gaze nystagmus test is set up for failure.

For any DUI arrest in Georgia, call William C. “Bubba” Head, a DUI lawyer in Atlanta, for his highly- valued FREE consultation. Our DUI law firm will confidently handle your case, or refer you to top criminal lawyers across GA at other DUI law firms.

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