Standardized Field Sobriety Tests and Their Use in Trial

• Author: Deandra M. Grant/Kimberly Griffin Tucker
• Pages: 140-175

5-140

CHAPTER 5

STANDARDIZED FIELD

SOBRIETY TESTS AND

THEIR USE IN TRIAL

I. National Highway Traffic Safety Administration (NHTSA) and the Early SFST Research

§5:01 Development of Field Sobriety Tests

§5:02 1977 Southern California Research Institute Study (SCRI) “Psychophysical Tests

for DWI Arrest” DOT-HS-802-424

§5:03 1981 SCRI “Development and Field Test of Psychophysical Tests for DWI

Arrests” DOT-HS-805-864

§5:04 1983 “Field Evaluation of a Behavioral Test Battery for DWI”

DOT-HS-806-475

II. NHTSA and the Validation Studies

§5:10 Results of the Studies

§5:11 2007 “The Robustness of the Horizontal Gaze Nystagmus Test”

§5:12 The Medical Community and HGN

III. NHTSA Standardized Field Sobriety Test Program

A. General Points

§5:20 National Highway Traffic Safety Administration Course

§5:21 Purpose of the Program

§5:22 Phases of the Program

§5:23 Key Areas of the Manual

B. Phase One: Vehicle in Motion

§5:30 Decision to Stop the Driver

§5:31 Stopping Sequence

C. Phase Two: Personal Contact

§5:40 Sight, Sound, and Smell Observations

§5:41 Pre-Exit Interview Techniques

§5:42 The Exit Sequence

D. Phase Three: Pre-Arrest Screening

1. Horizontal Gaze Nystagmus (HGN)

§5:50 Pre-Test Screening

§5:51 Initial Instructions

§5:52 Screening for Resting Nystagmus, Tracking Ability, and Pupil Size

§5:53 Lack of Smooth Pursuit

§5:54 Distinct and Sustained Nystagmus at Maximum Deviation

5-141 Standardized Field Sobriety Tests and Their Use in Trial

§5:55 Onset of Nystagmus Prior to 45 Degrees

§5:56 Scoring the HGN

§5:57 Vertical Gaze Nystagmus (VGN)

2. Walk and Turn (WAT)

§5:70 General Points

§5:71 Instructions Stage

§5:72 Walking Stage

§5:73 Scoring

3. One Leg Stand (OLS)

§5:80 General Points

§5:81 Instructions Stage

§5:82 Balance and Counting Stage

§5:83 Scoring

4. The “Romberg-Modified” Test

§5:90 Test Background

§5:91 The Police Version

IV. Using Field Sobriety Tests in Court

A. Admissibility of Horizontal Gaze Nystagmus Test

§5:100 Rule of Evidence 702

§5:101 Kelly v. State

§5:102 Emerson v. State

§5:103 Compton v. State

§5:104 Administration of the HGN Test

B. Setting the Stage for Jurors Through Voir Dire and Cross-Examination

1. Voir Dire

§5:110 Jurors’ Opinions About Balance

§5:111 Jurors’ Opinions About Environmental Effects

§5:112 False Positives

2. Cross-Examination of Officer

§5:120 Question Officer About Balance

§5:121 Question Officer About Environment

§5:122 Highlight Client’s Normal Behavior

§5:123 Sample Cross-Examination Questions

C. Opening Statement and Closing Argument

§5:130 Opening Statement

§5:131 Closing Argument

V. Forms: Pre-Trial Motions

5-1 Omnibus Motion in Limine for DWI Cases

5-2 Order on Omnibus Motion in Limine

5-3 Motion to Suppress the Results of the HGN Test

5-4 Order on Motion to Suppress

§5:01 Texas DWI Manual 5-142

I. National Highway Traffic

Safety Administration

(NHTSA) and the Early

SFST Research

§5:01 Development of Field Sobriety Tests

The Standardized Field Sobriety Tests (SFSTs)

are the “front line” of DWI defense. Whether you

have a refusal or failure case, a thorough understand-

ing of these tests is crucial to winning any DWI.

As a DWI defense attorney, you must be able to

understand: (1) the background of these tests; (2)

their purpose; and (3) how they were developed.

Three studies contributed to the development of

the SFSTs commonly used today:

• 1977 “Psychophysical Tests for DWI

Arrest” (Lab Only). See §5:02.

• 1981 “Development and Field Test of Psy-

chophysical Tests for DWI Arrests” (Lab

and Field). See §5:03.

• 1983 “Field Evaluation of a Behavioral Test

Battery for DWI” (Field Only). See §5:04.

Don’t be fooled by the fancy titles. These “studies”

do not resemble accepted scientific studies because:

• They have never been submitted for peer

review or been published in any scientific

journals.

• There was no control group of non-drink-

ers to evaluate a sober person’s perfor-

mance on these exercises.

Therefore, both the SFSTs and the NHTSA

manual itself are subject to vigorous challenges by

the educated DWI defense attorney.

§5:02 1977 Southern California

Research Institute Study (SCRI)

“Psychophysical Tests for DWI

Arrest” DOT-HS-802-424

The first study of field sobriety tests was com-

missioned by the U.S. Department of Transportation

in 1977. Its primary authors were Marcelline Burns

and Herbert Moskowitz. They were employed by

the Southern California Research Institute (SCRI)

to study six tests used by police to evaluate suspect-

ed intoxicated drivers.

These six tests, in bold, were selected from the

following 16 tests:

1. Alcohol gaze nystagmus.

2. Romberg

3. Finger to nose.

4. One leg stand.

5. Finger count.

6. Tongue twisters.

7. Subtraction, addition, count backwards.

8. Tapping rate.

9. Walk and turn.

10. Letter cancellation.

11. Tracing.

12. Grip strength.

13. Coin pickup.

14. Two-point discrimination.

15. Color naming.

16. Serial performance.

A reduced “best” test set was determined by a

stepwise discriminant analysis, which reduced the

battery to three tests. It was determined that requir-

ing officers to conduct all six tests on the side of the

road was too lengthy a process. That final set

included the one leg stand, walk and turn and alco-

hol gaze nystagmus.

The authors concluded that:

This fin al recommended sobriety test bat tery can

be admini stered without special equ ipment in most

roadside environ ments, and it can be adapted to yield

more precise measu rements if admin istered in the

station. [Psychophysical Tests for DWI Arrest , 1977,

Burns & Moskowitz, p. 2.]

IMPORTANT TO KNOW:

This study had a 47% false arrest error rate.

That is almost half! Nearly two-thirds of the test

subjects were male, and this study was conducted

in laboratory conditions, not in the field. (Field

testing and evaluation were not done until a later

study by SCRI.)

§5:03 1981 SCRI “Development and

Field Test of Psychophysical Tests

for DWI Arrests” DOT-HS-805-864

In 1981, Burns, Moskowitz, and Tharp pro-

duced a paper titled “Development and Field Test

of Psychophysical Tests for DWI Arrest.” [DOT-

HS-8-01970.] The commonly used three-test

battery (the one leg stand, the walk and turn, and

the horizontal gaze nystagmus (which was a change

from the previous alcohol gaze nystagmus test))

was the subject of this study.

The abstract for this paper states as its purpose:

Administ ration and scoring proc edures were

standardi zed for a sobriety test bat tery consisting of

the walk-and-tur n test, the one-leg-sta nd test, and