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Why You Need To Know The Truth Behind Field Sobriety Tests

By Rick Mueller on November 05, 2011

It's a dark, cold night on the side of a busy road with cars speeding by, just a number of feet away. Police lights flash across your peripheral vision. No moon in sight. No street lights. What's going on? Just your freedom is being tested. And it will depend on how well you do these DUI Field Sobriety Tests. Here come a bunch of complicated instructions you've never heard before. You're about to try some things you've never done before.

The noise and lights continue. You're nervous. You're shaking from the chill of the night. "Stand up. Keep your heels together. Keep your toes out. Keep your hands at your sides. Then raise the leg of your choice in front of you, six inches off the ground, leg straight, toe pointed. Keep your eyes on your raised toe. Start counting aloud from 1, 001 until I say stop: One thousand one. One thousand two. One thousand three..." Are you swaying? Are you raising your arms for balance? Are you hopping? Are you putting your foot down? In the event you did just any 2 of these "errors" or purported failures to perform as instructed, a drunk driving investigative officer will likely conclude "with 65% accuracy" as stipulated in a pseudo-science of impairment diagnostics, that you are too under the influence of alcohol (and/or drugs) to drive. Were you bending your leg? Did you stare straight ahead instead of keeping your eyes at your foot? Did you start too soon? If you did, California DUI cops are trained to conclude impaired subjects may have trouble following instructions. This 1 leg stand is one of the 3 "scientifically"-researched standardized field sobriety tests (SFST's) sanctioned by NHTSA, the National Highway Traffic Safety Administration.

DUI officers assume it's some kind of "holy grail" as they expediently use these tests to support a decision to arrest a subject for drunk driving. NHTSA claimed cops utilizing scores from all 3 tests would be 91% accurate in making a DUI arrest, whatever that meant. NHTSA maintained the most accurate of the 3 SFST's is the horizontal gaze nystagmus or "jerking eyeball" test. This is when the cop holds a penlight or small flashlight in front of you, then asks you to track it visually from side to side. If you've had too much alcohol, your eyeballs will supposedly start shaking about 45 degrees from center. NHTSA's 2 other tests, the 1-leg stand and Walk and Turn (nine steps forward and back on a straight line) are called "divided attention" tests since they require both mental concentration and physical coordination. The 1-leg stand has plenty of skeptics and challenges in court, but the test is "easily performed by most unimpaired people, " NHTSA claims.

What did DUI cops do before that? Many were "on their own." A few tossed a bunch of coins on the ground, instructing the subject to only pick up nickels or quarters. Other cops had drivers lean back and touch one finger to his or her nose; recite the alphabet without singing the alphabet song; count backward from 100 by 3's. They would chat a bit before making a judgmental guess. But how were you going to tell if a driver was impaired that way? These were kind of weird things. 1975 came along and NHTSA gathered proposals to try to develop a valid standardized test. Marcelline Burns and Southern California Research Institute in Los Angeles secured the bid. 238 volunteers from the local unemployment office promptly volunteered. Why? Who were they? Basically any one who was over 21 who claimed they had a driver's license and who claimed they like to drink a few alcoholic beverages.

They earned a respectable $3 a day. Back at the lab, cocktails were flowing. The "subjects" were "dosed" with either a placebo of orange juice or a screwdriver (orange juice with vodka). Then they went into small rooms. Ten cops were in there. The officers had at their disposal a number of acrobatics, totaling 6 purported "sobriety" tests. The cops thereafter made a determination as to a DUI/Drunk Driving arrest or not. 1977 - the final report was ultimately published with recommendations to employ the present battery of the 3 tests. However, Marcelline failed to test the "drunk" subjects when sober to see how well they really could balance on 1 leg. Uh oh. "The evidence that it's an easy task comes from the placebo people, " she offered. "They could do it fine." Most of the subjects were men, ages 22 to 29. Think the placebo people appeared much to like most Americans? So hundreds of thousands of drivers have been arrested - no doubt many deservedly so - on the basis of a 30-year-old study that, critics argue, has never been published in a scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with impairment.

Burns admits upfront that the tests are designed only to gauge drunkenness, not whether you're a menace on the road. Well, apparently a master of gymnastics, Ms. Burns insisted the average person should be able to balance on 1 leg for 30 seconds. She can. She practiced the 1 leg stand all the time, at least every few weeks. Should a reasonable person sit back and ponder how imbalanced we people really are? Interestingly enough, 40% of American folks will experience a balance disorder, and dizziness and vertigo at some point in their life and are the 3rd leading source of all doctor visits, according to the National Institutes of Health. Know any one who has ever had encephalitis, meningitis, shingles, chickenpox, ear infections, cardiovascular problems, numbness or tingling in the extremities or migraines? Those people would probably be unable to balance. Cops need to better ask DUI suspects about injuries or medical problems. Much of the U.S. just has a tough time with balancing. When a cop sees that, and if there are not any clues on the other 2 tests, the person is simply not impaired.

The golden question is yet how many cops would make the same call? Prominent forensic psychologists and well-respected DUI criminal defense lawyers pick apart Burns' research on SFST's. Still, she will not waver from her original report. "These defense attorneys write all this stuff, but never once do they suggest an optional test. What do they want the officer to do? Toss a coin?" she once asked. No, responds Spurgeon Cole, a Georgia forensic scientist and consultant who was her main nemesis. Clearly videotapes mounted on police cars directed at the actual SFST instructions, administrations and performance removes much of the subjectivity. Eyes don't lie because videos don't lie. There are countless challenges and questions which need to be addressed: How does age or gender affect SFST performance? How does fatigue or practice affect performance? Quite revealing is the fact that Cole administered these SFST tests to 21 of his students at Clemson University in South Carolina. The videotape of their performance was shown to a group of police officers who concluded they would arrest nearly half the students. One little problem - none of whom had had a drop of any alcohol in their system.

Rick Mueller is a California DUI Lawyer who has been practicing DUI law since 1983. He received his Juris Doctor degree from Chicago Kent College of Law and is also a licensed attorney in Illinois.

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