29 Nov 2012
What do surprise balance tests performed for the first time at the side of the road have to with sobriety?
Nothing. There are numerous problems with field sobriety testing including, but not limited to, (1) There is no baseline of your ability to do the FSEs when you have zero alcohol in your system. (2) The tests are supposed to be standardized, that is the cops are supposed to do them exactly the same every time. They rarely do the tests according to how NHTSA says they are supposed to be done. (3) The cops are looking for evidence against you. The only thing recorded will be what they think you did wrong. (4) The tests measure balance, but they take away your means of keeping balanced: feet shoulder width apart, looking at the horizon, and keeping your head level for inner ear balance.
The bottom line is: If you are stopped by the cops, and if the cops ask you to perform these exercises, politely decline to do the FSEs UNLESS you have not had anything to drink at all. The results can only hurt you.
A Field Sobriety Test is a very subjective set of divided attention tests. (For the record, most DUI Defense Lawyers refer to them as exercises, FSEs not tests). The officers will always say they aren’t passing you or failing you, they are ‘looking for CLUES’. And the cops will always say you “exhibited all the clues” of intoxication in their field sobriety testing.
There are two kinds of FSEs: Standard and Non-standard. Standard FSEs are those that have been shown to have some correlation to being under the influence in a NHTSA (National Highway Traffic Safety Administration) non-peer reviewed study.* The Standard FSEs are: the Horizontal Gaze Nystagmus (HGN); the Walk and Turn; and the One Leg Stand.
The Non-Standard tests include; Romberg balance, touching your nose with your finger; touching your thumb with your finger; or, reciting the alphabet (backwards or forwards, start with ‘Q’).
Horizontal gaze nystagmus is the test where the cop holds the pencil or his finger 12-15 inches from your face, level with your eyes and moves the it side to side. The cop will say they are looking for 6 ‘clues’ in this test, 3 in each eye: equal pupil size, lack of smooth pursuit, and nystagmus (jerking) of the eye at the extremes. There are really about 20 things they are looking for, including failing to follow instructions and swaying from side to side.
Exhibiting any ‘clue’ can be used in determining you are under the influence. 50% of the population has nystagmus at the extremes when sober. There are dozens of things other than alcohol that cause nystagmus, including it being late at night. (Hint: most DUI stops are late at night.) This is actually a test properly performed by trained Opthamologists (eye doctors) using sophisticated equipment.
In the Walk and Turn test, you walk 9 steps up, execute a complicated turn and walk nine steps back. Not standing with your left foot in front of right, missing toe with heel (more than 2″), not turning around with small steps, and losing balance are all ‘clues’ that you are under the influence. You are not given the grading criteria during the instruction phase. Most people can’t do this sober. Older people, overweight people or people with balance, leg or foot problems cannot usually do this.
In the One Leg Stand, the cop instructs you to raise your leg and count until he says stop. There are 18 ‘clues’ the officer is looking for. Mostly he is seeing whether you are able to keep your balance past 25 seconds. In this test you are instructed that if you put your foot down, just to pick it up and keep going. One of the ‘clues’ that will be held against you is putting your foot down.
The Non-Standard field sobriety tests are even more absurd.
In the Romberg, the cop instructs you to close your eyes and tilt your head back, count silently in your head and estimate 30 seconds. There are 18 ‘clues’ the cop is looking for here. Mostly they want to see whether your time sense is affected by being under the influence. They will judge you on how close to 30 seconds your estimation is. The instructions say that if you are within 10 seconds +/- you pass.
For more information about the field sobriety tests or to set up a consultation with me to talk about your specific case – Call 213-479-5322 or fill out the easy form at right.
* Marceline Burns, one of the psychologists who developed the battery used in field sobriety testing has said the tests don’t show either a specific blood alcohol concentration or impairment for the purpose of driving.