SESSION I INTRODUCTION AND OVERVIEW HS 178 R2/06

Transcription

1

2 PREFACE The prcedures utlined in this manual describe hw the Standardized Field Sbriety Tests (SFSTs) are t be administered under ideal cnditins. We recgnize that the SFSTs will nt always be administered under the ideal cnditins in the field, because such cnditins will nt always exist. Even when administered under less than ideal cnditins, they will generally served as valid and useful indicatrs f impairment. Slight variatins frm the ideal, i.e., the inability t find a perfectly smth surface at radside, may have sme affect n the evidentiary weight given t the results. Hwever, this des nt necessarily make the SFSTs invalid.

3 SESSION I INTRODUCTION AND OVERVIEW HS 178 R2/06

4 SESSION I INTRODUCTION AND OVERVIEW Upn successfully cmpleting this sessin, the participant will be able t: State the gals and bjectives f the curse. Describe the curse schedule and activities. Demnstrate their pre-training knwledge f curse tpics. CONTENT SEGMENTS LEARNING ACTIVITIES A. Welcming Remarks and Objectives Instructr-Led Presentatins B. Administrative Details C. Pre-Test Written Examinatin HS 178 R2/06

5 DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING TRAINING GOALS AND OBJECTIVES 1. Ultimate Gal T increase deterrence f DWI vilatins, and thereby reduce the number f crashes, deaths and injuries caused by impaired drivers. 2. Enfrcement-Related Gals a. Understand enfrcement's rle in general DWI deterrence. b. Understand detectin phases, clues and techniques. c. Understand requirements fr rganizing and presenting testimnial and dcumentary evidence in DWI cases. 3. Jb Perfrmance Objectives As a result f this training, participants will becme significantly better able t: a. Recgnize and interpret evidence f DWI vilatins. b. Administer and interpret Standardized Field Sbriety Tests. c. Describe DWI evidence clearly and cnvincingly in written reprts and verbal testimny. 4. Enabling Objectives In pursuit f the jb perfrmance bjectives, participants will cme t: a. Understand the tasks and decisins f DWI detectin. b. Recgnize the magnitude and scpe f DWI-related crashes, deaths, injuries, prperty lss and ther scial aspects f the DWI prblem. c. Understand the deterrence effects f DWI enfrcement. d. Understand the DWI enfrcement legal envirnment. HS 178 R2/06 I-1

6 e. Knw and recgnize typical vehicle maneuvers and human indicatrs symptmatic f DWI that are assciated with initial bservatin f vehicles in peratin. f. Knw and recgnize typical reinfrcing maneuvers and indicatrs that cme t light during the stpping sequence. g. Knw and recgnize typical sensry and ther clues f alchl and/r ther drug impairment that may be seen during face-t-face cntact with DWI suspects. h. Knw and recgnize typical behaviral clues f alchl and/r ther drug impairment that may be seen during the suspect's exit frm the vehicle. i. Understand the rle and relevance f psychphysical testing in pre-arrest screening f DWI suspects. j. Understand the rle and relevance f preliminary breath testing in pre-arrest screening f DWI suspects. k. Knw and carry ut apprpriate administrative prcedures fr validated divided attentin psychphysical tests. l. Knw and carry ut apprpriate administrative prcedures fr the Hrizntal Gaze Nystagmus test. m. Knw and recgnize typical clues f alchl and/r ther drug impairment that may be seen during administratin f the Standardized Field Sbriety Tests. n. Understand the factrs that may affect the accuracy f preliminary breath testing devices.. Understand the elements f DWI prsecutin and their relevance t DWI arrest reprting. p. Chse apprpriate descriptive terms t cnvey relevant bservatins f DWI evidence. q. Write clear, descriptive narrative DWI arrest reprts. HS 178 R2/06 I-2

7 5. Additinal Training Gals and Objectives a. If the fur-hur (Intrductin t Drugs That Impair) r eight-hur (Drugs That Impair Driving) mdules are presented as part f the SFST training prgram, the gals and bjectives fr thse mdules are listed in the apprpriate manuals. HS 178 R2/06 I-3

8 ATTACHMENT(S)

9 ATTACHMENT GLOSSARY OF TERMS ALVEOLAR BREATH - Breath frm the deepest part f the lung. BLOOD ALCOHOL CONCENTRATION (BAC) - The percentage f alchl in a persn's bld. BREATH ALCOHOL CONCENTRATION (BrAC) - The percentage f alchl in a persn s breath, taken frm deep in the lungs. CLUE - Smething that leads t the slutin f a prblem. CUE - A reminder r prmpting as a signal t d smething. A suggestin r a hint. DIVIDED ATTENTION TEST - A test which requires the subject t cncentrate n bth mental and physical tasks at the same time. DWI/DUI - The acrnym "DWI" means driving while impaired and is synnymus with the acrnym "DUI", driving under the influence r ther acrnyms used t dente impaired driving. These terms refer t any and all ffenses invlving the peratin f vehicles by persns under the influence f alchl and/r ther drugs. DWI DETECTION PROCESS - The entire prcess f identifying and gathering evidence t determine whether r nt a suspect shuld be arrested fr a DWI vilatin. The DWI detectin prcess has three phases: Phase One - Vehicle In Mtin Phase Tw - Persnal Cntact Phase Three - Pre-arrest Screening EVIDENCE - Any means by which sme alleged fact that has been submitted t investigatin may either be established r disprved. Evidence f a DWI vilatin may be f varius types: a. Physical (r real) evidence: smething tangible, visible, r audible. b. Well established facts (judicial ntice). c. Demnstrative evidence: demnstratins perfrmed in the curtrm. d. Written matter r dcumentatin. e. Testimny. FIELD SOBRIETY TEST - Any ne f several radside tests that can be used t determine whether a suspect is impaired. HORIZONTAL GAZE NYSTAGMUS (HGN) - An invluntary jerking f the eyes as they gaze tward the side. HS 178 R2/06 1

10 ILLEGAL PER SE - Unlawful in and f itself. Used t describe a law which makes it illegal t drive while having a statutrily prhibited Bld Alchl Cncentratin. NYSTAGMUS - An invluntary jerking f the eyes. ONE-LEG STAND (OLS) - A divided attentin field sbriety test. PERSONAL CONTACT - The secnd phase in the DWI detectin prcess. In this phase the fficer bserves and interviews the driver face t face; determines whether t ask the driver t step frm the vehicle; and bserves the driver's exit and walk frm the vehicle. PRE-ARREST SCREENING - The third phase in the DWI detectin prcess. In this phase the fficer administers field sbriety tests t determine whether there is prbable cause t arrest the driver fr DWI, and administers r arranges fr a preliminary breath test. PRELIMINARY BREATH TEST (PBT) - A pre-arrest breath test administered during investigatin f a pssible DWI vilatr t btain an indicatin f the persn's bld alchl cncentratin. PSYCHOPHYSICAL - "Mind/Bdy." Used t describe field sbriety tests that measure a persn's ability t perfrm bth mental and physical tasks. STANDARDIZED FIELD SOBRIETY TEST BATTERY - A battery f tests, Hrizntal Gaze Nystagmus, Walk-and-Turn, and One-Leg Stand, administered and evaluated in a standardized manner t btain validated indicatrs f impairment based n NHTSA research. TIDAL BREATH - Breath frm the upper part f the lungs and muth. VEHICLE IN MOTION - The first phase in the DWI detectin prcess. In this phase the fficer bserves the vehicle in peratin, determines whether t stp the vehicle, and bserves the stpping sequence. VERTICAL GAZE NYSTAGMUS - An invluntary jerking f the eyes ( up and dwn) which ccurs when the eyes gaze upward at maximum elevatin. WALK-AND-TURN (WAT) - A divided attentin field sbriety test. HS 178 R2/06 2

11 SESSION II DETECTION AND GENERAL DETERRENCE HS 178 R2/06

12 SESSION II DETECTION AND GENERAL DETERRENCE Upn successfully cmpleting this sessin, the participant will be able t: Describe the frequency f DWI vilatins and crashes. Define General Deterrence. Describe the Relatinship between Detectin and General Deterrence. Describe a brief histry f alchl; Identify cmmn types f alchls; Describe the physilgic prcesses f absrptin, distributin and eliminatin f alchl in the human bdy; CONTENT SEGMENTS LEARNING ACTIVITIES A. The DWI Prblem Instructr-Led Presentatins B. The Cncept f General Deterrence Reading Assignments C. Relating Detectin t Deterrence Ptential D. Evidence f Effective Detectin and Effective Deterrence E. Physilgy f Alchl HS 178 R2/06

13 DWI DETERRENCE: AN OVERVIEW Each year, tens f thusands f peple die in traffic crashes. Thrughut the natin, alchl is the majr cntributr t traffic fatalities. In 2002, alchl-related fatalities rse t 17,419, representing 41 percent f all traffic fatalities. (NHTSA 2002 FARS data) Impaired drivers are mre likely than ther drivers t take excessive risks such as speeding r turning abruptly. Impaired drivers als are mre likely than ther drivers t have slwed reactin times. They may nt be able t react quickly enugh t slw dwn befre crashing and are less likely t wear seatbelts. On the average, tw percent f drivers n the rad at any given time are DWI. DWI vilatins and crashes are nt simply the wrk f a relatively few "prblem drinkers" r "prblem drug users." Many peple cmmit DWI, at least ccasinally. In a 1991 Gallup Survey f 9,028 drivers natinwide, 14% f the respndents reprted they drve while clse t r under the influence f alchl within the last three mnths. It is cnservatively estimated that the typical DWI vilatr cmmits that ffense abut 80 times per year. In ther wrds, the average DWI vilatr drives while under the influence nce every fur r five nights. THE PROBLEM OF DWI HOW WIDESPREAD IS DWI? While nt all f thse wh drive after drinking have a BAC f 0.08/0.10 r mre, the presumptive r illegal per se limit fr DWI in many states, sme drivers d have BACs in excess f these limits. A frequently quted, and ften misinterpreted, statistic places the average incidence f DWI at ne driver in fifty. Averaged acrss all hurs f the day and all days f the week, tw percent f the drivers n the rad are DWI.1 That 1 in 50 figure is ffered as evidence that a relatively small segment f America's drivers the s called "prblem" grup accunt fr the majrity f traffic deaths. There's nthing wrng with that figure as a statistical average, but plice fficers knw that at certain times and places many mre than tw percent f drivers are impaired. Natinal Highway Traffic Safety Administratin research suggests that during the late night, weekend hurs, as many as ten percent f drivers n the rads may be DWI.2 On certain hliday weekends, and ther critical times, the figure may g even higher. HOW MANY? HOW OFTEN? The issue f hw many DWIs are n the rad at any given time is an imprtant HS 178 R2/06 II-1

14 factr in measuring the magnitude f the prblem. Hwever, frm an verall traffic safety perspective, the mre imprtant issue may be the number f drivers wh ever cmmit DWI. Just hw widespread is this vilatin? In enfrcement terms, hw many peple d we need t deter? Clearly, it is mre than ne in fifty. Althugh it may be true that, n the average, tw percent f drivers are DWI at any given time, it certainly is nt the same tw percent every time. It is even mre than ne in ten. Nt everyne wh cmmits DWI is ut n the rad impaired every Friday and Saturday night. Sme f them, at least, must skip an ccasinal weekend. Thus, the ten percent wh shw up, weekend after weekend, in the Friday and Saturday statistics must cme frm a larger pl f vilatrs, each f whm "cntributes" t the statistics n sme nights, but nt necessarily n all nights. An analysis f BAC radside survey data suggests that the average DWI vilatr cmmits the vilatin apprximately 80 times each year.3 Undubtedly, there are sme wh drive impaired virtually everyday; thers cmmit the vilatin less ften. It is likely that at least ne quarter f all American mtrists drive while impaired at least nce in their lives. That figure falls apprximately midway between the 55 percent f drivers wh at least ccasinally drive after drinking and the ten percent f weekend, nighttime drivers wh have BACs abve the s called legal limit. 1 Brkenstein, R.F., et al, Rle f Drinking Driver in Traffic Accidents. Blmingtn IN: Department f Plice Administratin, Indiana University, March Alchl Highway Safety Wrkshp, Participant's Wrkbk Prblem Status. NHTSA, DWI Law Enfrcement Training: Instructr's Manual. NHTSA. August P.139. Our estimated ne in fur drivers includes everyne wh drives impaired everyday, as well as everyne wh cmmits the vilatin just nce and never ffends again; and it includes everyne in between. In shrt, it includes everyne wh ever runs the risk f being invlved in a crash while impaired. SOCIETY'S PROBLEM AND THE SOLUTION It really desn't matter whether this ne in fur estimate is reasnably accurate (in fact, it is prbably lw). The fact is that far mre than tw percent f American drivers actively cntribute t the DWI prblem. DWI is a crime cmmitted by a substantial segment f Americans. It has been and remains a ppular crime; ne that many peple frm all walks and statins f life cmmit. DWI is a crime that HS 178 R2/06 II-2

15 can be fught successfully nly thrugh a scietal apprach f cmprehensive cmmunity-based prgrams. GENERAL DETERRENCE One apprach t reducing the number f drinking drivers is general deterrence f DWI. General deterrence f DWI is based in the driving public's fear f being arrested. If enugh vilatrs cme t believe that there is a gd chance that they will get caught, at least sme f them will stp cmmitting DWI at least sme f the time. Hwever, unless there is a real risk f arrest, there will nt be much fear f arrest. Law enfrcement fficers must arrest enugh vilatrs enugh f the time t cnvince the general public that they will get caught, sner r later, if they cntinue t drive while impaired. Hw many DWI vilatrs must be arrested in rder t cnvince the public that there is a real risk f arrest fr DWI? Several prgrams have demnstrated that significant deterrence can be achieved by arresting ne DWI vilatr fr every 400 DWI vilatins cmmitted. Currently, hwever, fr every DWI vilatr arrested, there are between 500 and 2,000 DWI vilatins cmmitted. (See Exhibit 2-1) When the chances f being arrested are ne in tw thusand, the average DWI vilatr really has little t fear. HS 178 R2/06 II-3

16 EXHIBIT 2-1 Chances f a DWI vilatr being arrested are as lw as 1 in Why is the DWI arrest t vilatins rati (1:2000) s lw? There are three ntewrthy reasns. DWI vilatrs vastly utnumber plice fficers. It is nt pssible t arrest every drinking driver each time they cmmit DWI. Sme fficers are nt highly skilled at DWI detectin. They fail t recgnize and arrest many DWI vilatrs. Sme fficers are nt mtivated t detect and arrest DWI vilatrs. SIGNIFICANT FINDINGS In a 1975 study cnducted in Frt Lauderdale, Flrida, nly 22 percent f traffic vilatrs wh were stpped with BACs between 0.10 and 0.20 were arrested fr DWI. The remainder were cited fr ther vilatins, even thugh they were legally impaired. In this study breath tests were administered t the vilatrs by researchers after the plice fficers had cmpleted their investigatins. The fficers failed t detect 78 percent f the DWI vilatrs they investigated. The implicatin f this study, and f ther similar studies, is that fr every DWI vilatr actually arrested fr DWI, three thers are cntacted by plice fficers, but are nt arrested fr DWI. (See Exhibit 2-2.) It is clear that significant imprvement in the arrest rate culd be achieved if fficers were mre skilled at DWI detectin. HS 178 R2/06 II-4

17 EXHIBIT 2-2 Fr every DWI vilatr arrested, 3 thers are cntacted face t face by plice, but are nt arrested. Several enfrcement prgrams have succeeded in achieving significant DWI deterrence. Cnsider, fr example, the three year intensive weekend DWI enfrcement prgram in Stcktn, Califrnia. Under that prgram: arrests increased 500 percent; weekend nighttime crashes decreased 34 percent; the prprtin f nighttime weekend drivers legally under the influence drpped frm nine percent t six percent. Imprved DWI detectin can be achieved in virtually every jurisdictin in the cuntry. The keys t success are plice fficers wh are: skilled at DWI detectin; willing t arrest every DWI vilatr wh is detected; supprted by their agencies in all aspects f this prgram, frm plicy thrugh practical applicatin. THE SOLUTIONS THE ULTIMATE GOAL: CHANGING BEHAVIOR What must cmprehensive cmmunity based DWI prgrams seek t accmplish? Ultimately, nthing less than fundamental behaviral change, n a widespread basis. The gal is t encurage mre Americans t: avid cmmitting DWI, either by aviding r cntrlling drinking prir t driving r by selecting alternative transprtatin. HS 178 R2/06 II-5

18 intervene actively t prevent thers frm cmmitting DWI (fr example, putting int practice the theme "friends dn't let friends drive drunk"); avid riding with drivers wh are impaired. The final test f the value f DWI cuntermeasures n the natinal, state and lcal levels is whether they succeed in getting significantly mre peple t mdify their behavir. The prgrams als pursue ther mre immediate bjectives that supprt r reinfrce the ultimate gal. Hwever, the ultimate gal is t change driving while impaired t an unacceptable frm f behavir at all levels. HS 178 R2/06 II-6

19 PURSUING THE GOAL: TWO APPROACHES Hw can we bring abut these changes in behavir? Hw can we induce mre peple t avid DWI vilatins, prevent thers frm drinking and driving, and avid becming passive "statistics" by refusing t ride with drinking drivers? Basically, there are tw general appraches that must be taken t achieve this gal. One: preventin -- gives prmise f the ultimate, lasting slutin t the DWI prblem; but it will require a substantial amunt f time t mature fully. The ther -- deterrence -- nly ffers a partial r limited slutin, but it is available right nw. PREVENTION: THE ULTIMATE SOLUTION DWI cuntermeasures that strive fr the ultimate achievement f drinking and driving behaviral changes have been gruped under the label "Preventin." There are many kinds f DWI preventive activities. Sme are carried ut by and in ur schls, sme thrugh the mass media, sme thrugh cncerned civic grups, and s frth. The varius preventive effrts fcus n different specific behavirs and address different target grups. Hwever, they seek t change drinking and driving behavir by prmting mre psitive attitudes and by fstering a set f values that reflects individual respnsibilities tward drinking and driving. Preventive cuntermeasures seek sciety's acceptance f the fact that DWI is wrng. Sme peple believe that drinking and driving is strictly an individual's persnal business; that it is up t each persn t decide whether r nt t accept the risk f driving after drinking. Preventive activities try t dispel that utmded and irrespnsible belief. Instead, they prmte the idea that n ne has the right t endanger thers by drinking and driving, r t risk becming a burden (ecnmically and therwise) t thers as a result f injuries suffered while drinking and driving. Realistically, everyne has an bligatin nt nly t cntrl their wn drinking and driving, but als t speak up when thers are abut t cmmit the vilatin. Only when all f sciety views DWI as a negative behavir that cannt be tlerated r cndned, will the public's behavir begin t change. That is the lng-term slutin. DWI preventin will never be 100 percent successful. In reality, there will always be peple wh drink and drive. Hwever, with new sets f values cme new behavirs. Fr example, ne need nly lk at the prliferatin f "Thank Yu fr Nt Smking" signs. Displaying such a sign a generatin ag wuld have been viewed as implite, if nt anti-scial. Tday, "N Smking" plicies are strictly enfrced in many wrk areas. HS 178 R2/06 II-7

20 DWI preventin thrugh basic shifts in attitudes and values can wrk. Given enugh time, it will wrk. The key wrd is time. A full generatin r mre must grw t maturity befre new attitudes take hld and start t change behavir. We can lk at tday's children and expect that their attitude tward drinking and driving will be different frm their parents; hwever, we need an interim slutin, and we need it NOW. DWI DETERRENCE DETERRENCE: THE INTERIM SOLUTION DWI cuntermeasures that seek a shrt-cut t the ultimate gal f behaviral change generally are labeled "Deterrence." Deterrence can be described as negative reinfrcement. Sme deterrence cuntermeasures fcus primarily n changing individual drinking and driving behavir while thers seek t influence peple t intervene int thers' drinking and driving decisins. The key feature f deterrence is that it strives t change DWI behavir withut dealing directly with the prevailing attitudes abut the rightness r wrngness f DWI. Deterrence uses a mechanism quite distinct frm attitudinal change: fear f apprehensin and applicatin f sanctins. THE FEAR OF BEING CAUGHT AND PUNISHED Large scale DWI deterrence prgrams try t cntrl the DWI behavir f the driving public by appealing t the public's presumed fear f being caught. Mst actual r ptential DWI vilatrs view the prspect f being arrested with extreme distaste. Fr sme, the arrest, with its attendant handcuffing, bking, publicity and ther stigmatizing and traumatizing features, is the thing mst t be feared. Fr thers, it is the prspective punishment (jail, stiff fine, etc.) that causes mst f the cncern. Still thers fear mst the lng-term csts and incnvenience f a DWI arrest: the license suspensin and increased premiums fr autmbile insurance. Fr many vilatrs the fear prbably is a cmbinatin f all f these. Regardless, if enugh vilatrs are sufficiently fearful f DWI arrest, sme f them will avid cmmitting the vilatin at least sme f the time. Fear by itself will nt change their attitudes; if they d nt see anything inherently wrng with drinking and driving in the first place, the prspect f arrest and punishment will nt help them see the light. Hwever, fear smetimes can be enugh t keep them frm putting their anti-scial attitudes int practice. This type f DWI deterrence, based n the fear f being caught, is cmmnly called general deterrence. It applies t the driving public generally and presumably affects the behavir f thse wh have never been caught. There is an element f fear f the unknwn at wrk here. HS 178 R2/06 II-8

21 Anther type f DWI deterrence, called specific deterrence, applies t thse wh have been caught and arrested. The typical specific deterrent invlves sme type f punishment, perhaps a fine, invluntary cmmunity service, a jail term r actin against the driver's license. The punishment is impsed in the hpe that it will cnvince the specific vilatr that there is indeed smething t fear as a result f being caught, and t emphasize that if there is a next time, the punishment will be even mre severe. It is the fear f the knwn that cmes int play in this case. The cncept f DWI deterrence thrugh fear f apprehensin r punishment seems sund. But will it wrk in actual practice? The crux f the prblem is this: If the mtring public is t fear arrest and punishment fr DWI, they must perceive that there is an appreciable risk f being caught and cnvicted if they cmmit the crime. If actual and ptential DWI vilatrs cme t believe that the chance f being arrested is minimal, they will quickly lse whatever fear f arrest they may have felt. Enfrcement is the mechanism fr creating and sustaining a fear f being caught fr DWI. N specific deterrence prgram can amunt t much, unless plice fficers arrest large numbers f vilatrs; n punishment r rehabilitatin prgram can affect behavir n a large scale unless it is applied t many peple. General deterrence depends n enfrcement -- the fear f being caught is a direct functin f the number f peple wh are caught. Obviusly, the plice alne cannt d the jb. Legislatrs must supply laws that the plice can enfrce. Prsecutrs must vigrusly prsecute DWI vilatrs, and the judiciary must adjudicate fairly and deliver the punishments prescribed by law. The media must publicize the enfrcement effrt and cmmunicate the fact that the risk is nt wrth the prbable utcme. Each f these elements plays a supprtive rle in DWI deterrence. HOW GREAT A RISK IS THERE? The questin nw is, are vilatrs afraid f being caught? Mre imprtantly, shuld they be afraid? Is there really an appreciable risk f being arrested if ne cmmits DWI? The answer t all f these questins unfrtunately is: prbably nt. In mst jurisdictins, the number f DWI arrests appears t fall shrt f what wuld be required t sustain a public perceptin that there is a significant risk f being caught. Smetimes, it is pssible t enhance the perceived risk, at least fr a while, thrugh intensive publicity. Hwever, media "hype" withut intensified enfrcement has never been enugh t maintain the fear f arrest fr very lng. HS 178 R2/06 II-9

22 HOW MUCH SHOULD THE PUBLIC FEAR? We can draw sme reasnable estimates f DWI enfrcement intensity, based n what we knw and n certain assumptins we have already made. Suppse we deal with a randm sample f 100 Americans f driving age. If they cme frm typical enfrcement jurisdictins, chances are that exactly ne f them will be arrested fr DWI in any given year: ur annual DWI arrests, in mst places, equal abut ne percent f the number f drivers in the ppulatin. That is ne arrest ut f 100 drivers during ne year; hwever, hw many DWI vilatins d thse drivers cmmit? Recall ur previus estimates that sme 25 percent f America's drivers at least ccasinally drive while under the influence, and that the average vilatr cmmits DWI 80 times each year. Then, ur sample f 100 drivers includes 25 DWI vilatrs wh cllectively are respnsible fr 2,000 DWI vilatins yearly. CHANGING THE ODDS If an arrest/vilatin rati f 1 in 2,000 is nt enugh t make deterrence wrk, is it then reasnable t think that we can ever make deterrence wrk? After all, if we dubled DWI arrests t 1 in 1,000, we wuld still be missing 999 vilatrs fr every ne we managed t catch. If we increased arrests ten-fld, t 1 in 200, 199 wuld escape fr every ne arrested. Hw much deterrence wuld that prduce? Surprisingly, it wuld prbably prduce quite a bit. We dn't have t arrest every DWI ffender every time in rder t cnvince them that they have smething t fear. We nly have t arrest enugh f them enugh f the time t cnvince many f them that it can happen t them. As the arrest rate increases, the dds are that it will happen t them eventually. The law f averages (r cumulative prbability) will catch up with them, and sner than we might at first expect. The statistics belw display the cumulative prbability (as a percentage) f being arrested at least nce during the curse f ne, tw r three years as a functin f the arrest rate n any given night. These statistics are based n the assumptin that the average vilatr cmmits DWI 80 times each year. Percent f vilatrs arrested after... Nightly Arrest Rate One Year Tw Years Three Years 1 in % 7.7% 11.3% 1 in % 14.8% 21.3% 1 in % 27.4% 38.2% 1 in % 55.2% 70.0% HS 178 R2/06 II-10

23 Clearly, the chances f being caught accumulate very quickly as the arrest/vilatin rati increases. If we culd maintain a rati f ne arrest in every 500 vilatins (a level f enfrcement currently maintained in sme jurisdictins), then by the time ne year has passed, slightly mre than ne f every seven peple (14.8%) wh have cmmitted DWI during that year will have been arrested at least nce. It prbably is a high enugh chance t get the attentin -- and fear -- f many vilatrs. If we culd achieve an arrest rati f 1 in 200 (a level attainable by fficers skilled in DWI detectin) we will arrest fully ne-third f all DWI vilatrs at least nce every year, and we will arrest mre than half f them by the time tw years have gne by. DWI DETECTION: THE KEY TO DETERRENCE CAN IT BE DONE, AND WILL IT WORK? Is there any evidence that a practical and realistic increase in DWI enfrcement activity will induce a significant degree f general deterrence and a crrespnding change in DWI behavir? Yes there is. As early as 1975, in the city f Stcktn, Califrnia, a study shwed that the city's ttal number f DWI arrests (700) were cnsiderably less than ne percent f the areas licensed number f drivers (130,000). The implicatin here was that Stcktn plice were nly maintaining the arrest/vilatin ratin f 1-2,000, r less. In additin, radside surveys n Friday and Saturday nights disclsed that nine percent f the drivers were perating with BAC's f 0.10 r higher. Then things changed. Beginning in 1976 and cntinuing at planned intervals thrugh the first half f 1979, Stcktn plice cnducted intensive DWI enfrcement n weekend nights. The fficers invlved were extensively trained. The enfrcement effrt was heavily publicized and additinal equipment (PBTs and cassette recrders) was made available. The plice effrt was clsely crdinated with the District Attrney's ffice, the Cunty Prbatin ffice, and ther allied criminal justice and safety rganizatins. All this paid ff. By the time the prject came t a clse (in 1979) DWI arrests had increased by ver 500 percent, and weekend nighttime cllisins had decreased by 34 percent, and the number f peratrs cmmitting DWI drpped ne-third. Since the histrical Stcktn study numerus states have cnducted similar studies t determine the degree f effect that DWI arrests wuld have n alchl related fatalities in general, and ttal fatalities in particular. Mst f these studies were cnducted between 1978 and The results f these studies graphically illustrated in each state that when the number f arrests fr DWI increased, the percent f alchl related fatalities decreased. Further, the results f a study cnducted in Flrida frm , shwed that when DWI arrests per licensed driver increased, ttal fatalities decreased (12-mnth mving average). HS 178 R2/06 II-11

24 DETECTION: THE KEY TO DETERRENCE It is imprtant t understand hw increased DWI enfrcement can affect deterrence. Deterrence can vastly exceed the level f enfrcement fficers achieve n any given night. True, weekend DWI arrests can increase by as much as 500 percent, as in the Stcktn study. Hwever, even thugh the study shwed they started with an enfrcement rati n better than 1-in-2000, the tremendus increase in DWI arrests prbably nly brught the arrest rati t abut 1-in-400. Regardless f the fact that 399 DWI drivers avided arrest, the increased enfrcement effrt cnvinced at least ne-third f the vilatrs t change their behavir substantially. The law f averages quickly starts t catch up with DWI drivers when the enfrcement rati imprves t the 1-in-400 rati. At that level, unless vilatrs change their behavir, many f them will be caught, r at least will have knwn smene wh has been arrested. Cupled with the heavy publicity given t the enfrcement effrt, thse experiences were enugh t raise the perceptin level f apprehensin amng DWI peratrs that sner r later they wuld be caught. As a result, many f them changed their behavir. This is the best example f general deterrence. In additin, during the same time that DWI arrests went up ver 500 percent in Stcktn, citatins fr ther traffic vilatins increased by a cmparatively mdest 99 percent. The implicatin is that Stcktn's fficers were stpping and cntacting nly twice as many pssible vilatrs as they had befre, but they were cming up with mre than five times as many arrests. What have the results f these studies shwn? Basically, they have shwn that a cmmunity will benefit frm their fficers' increased skills at DWI detectin. Principally because f their special training, the fficers were better able t recgnize "cues" f impairment when they bserved vehicles in mtin, and they were mre familiar with the "clues" r human indicatrs f impairment exhibited by vilatrs during persnal cntact. The fficers als had mre cnfidence in the field sbriety tests they used t investigate their suspects. The mst imprtant factr was that far fewer f the vilatrs being stpped nw avided detectin and arrest. The difficulty in detecting DWI amng peratrs persnally cntacted by fficers has been well dcumented. Analysis f radside survey and arrest data suggest that fr every DWI vilatr arrested, three thers actually have face-t-face cntact with plice fficers but are allwed t g withut arrest. 4 Direct supprt f that inference was fund in the Frt Lauderdale BAC study, where researchers demnstrated that plice fficers arrested nly 22 percent f the DWI peratrs they cntacted, whse BAC levels were subsequently shwn t be between 0.10 and DWI Law Enfrcement Training, p. cit. Frt Lauderdale BAC Study. HS 178 R2/06 II-12

25 The ability t detect DWI vilatrs is the key t general deterrence and pssibly, the greatest impediment t it. If we accept the three-t-ne rati f failed detectins as being reasnably accurate, the implicatins are rather alarming. Cnsider the impact n a DWI vilatr's subsequent behavir when, after being stpped by the plice, is allwed t cntinue driving. Very likely, these DWI vilatrs and their friends will becme even mre cnvinced f their ability t handle drinking and driving. Further, they will cme t believe that they will never be arrested because plice fficers can't determine when they are "ver the limit." Instead f creating general DWI deterrence, this attitude breeds specific reinfrcement. This helps t develp a feeling amng DWI vilatrs that they have nthing mre t fear frm plice than an ccasinal ticket fr a minr traffic ffense. On the psitive side, the rati f undetected t detected vilatins suggests that much can be accmplished with existing resurces, if we use thse resurces as efficiently as pssible. By just being able t imprve detectin skills f law enfrcement fficers we culd experience an increase in the arrest/vilatin rati f 4-in-2000 withut any increase in cntacts. PHYSIOLOGY OF ALCOHOL A BRIEF OVERVIEW OF ALCOHOL Alchl is the mst abused drug in the United States. "Alchl" is the name given t a family f clsely related and naturally-ccurring chemicals. Each f the chemicals that is called an "alchl" cntains a mlecule chemists refer t as a "hydrxy radical." This radical cntains ne xygen atm and ne hydrgen atm bnded tgether. The simplest alchl has nly ne carbn atm, three hydrgen atms, and ne hydrxy radical. The next alchl has tw carbn atms, five hydrgen atms and ne hydrxy radical. The third alchl has three carbn atms, seven hydrgen atms and ne hydrxy radical. That is hw the alchls differ frm ne anther. Alchls are mlecularly very similar and prduce similar effects. They prduce intxicating effects when ingested int the human bdy. Only ne f them is meant fr human cnsumptin. Hwever, when ingested in substantial quantities it can cause death. The ingestible alchl is knwn as ethyl alchl, r ethanl. Its chemical abbreviatin is ETOH. The "ET" stands fr "ethyl" and the "OH" represents the single xygen atm bnded t ne f the hydrgen atms, ("hydrxy radical"). Ethanl is the variety f alchl that has tw carbn atms. Tw f ethanl's best knwn analgs are methyl alchl (r methanl), cmmnly called "wd alchl", and isprpyl alchl (r isprpanl), als knwn as "rubbing alchl". HS 178 R2/06 II-13

26 Ethanl is what interests us, because it is the kind f alchl that features prminently in impaired driving. Ethanl is beverage alchl, the active ingredient in beer, wine, whiskey, liqurs, etc. Ethanl prductin starts with fermentatin. That is a kind f decmpsitin in which the sugars in fruit, grains and ther rganic materials cmbine with yeast t prduct the chemical we call ethanl. This can ccur naturally, as yeast spres in the air cme int cntact with decmpsing fruit and grains. Hwever, mst f the ethanl in the wrld didn't ferment naturally, but was prduced under human supervisin. When an alchlic beverage is prduced by fermentatin, the maximum ethanl cntent that can be reached is abut 14%. At that cncentratin, the yeast dies, s the fermentatin stps. Obtaining a higher ethanl cntent requires a prcess called distillatin. This invlves heating the beverage until the ethanl "bils ff", then cllecting the ethanl vapr. It is pssible t d this because ethanl bils at a lwer temperature than des water. Distilled spirits is the name we give t high-ethanl-cncentratin beverages prduced by distillatin. These include rum, whiskey, gin, vdka, etc. The ethanl cncentratin f distilled spirits usually is expressed in terms f prf, which is a number crrespnding t twice the ethanl percentage. Fr example, an 80-prf beverage has an ethanl cncentratin f 40 percent. Over the millennia during which peple have used and abused ethanl, sme standard-size servings f the different beverages have evlved. Beer, fr example, is nrmally dispensed in 12-unce servings. Since beer has an ethanl cncentratin f abut fur percent, the typical bttle r can f beer cntains a little less than ne-half unce f pure ethanl. A standard glass f wine has abut fur unces f liquid. Wine is abut 12 percent alchl, s the glass f wine als has a bit less than ne-half unce f ethanl in it. Whiskey and ther distilled spirits are dispensed by the "sht glass", usually cntaining abut ne and ne-quarter unce f fluid. At a typical cncentratin f frty percent ethanl (80-prf), the standard sht f whiskey has apprximately ne-half unce f ethanl. Therefre, as far as their alchlic cntents are cncerned, a can f beer, a glass f wine and a sht f whiskey are all the same. PHYSIOLOGIC PROCESSES Ethanl is a Central Nervus System Depressant. It desn't affect a persn until it gets int their central nervus system, i.e., the brain, brain stem and spinal crd. Ethanl gets t the brain by getting int the bld. In rder t get int the bld, it has t get int the bdy. There are actually a number f different ways in which ethanl can get int the bdy. It can be inhaled. Ethanl fumes, when taken int the lungs, will pass int the bldstream and a psitive bld alchl cncentratin (BAC) will develp. HS 178 R2/06 II-14

27 Hwever, prlnged breathing f fairly cncentrated fumes wuld be required t prduce a significantly high BAC. Ethanl culd als be injected, directly int a vein; it wuld then flw with the bld back t the heart, where it wuld be pumped first t the lungs and then t the brain. And, it culd be inserted, as an enema, and pass quickly frm the large intestine int the bld. But nne f these methds are f any practical significance, because alchl is almst always intrduced int the bdy rally, i.e., by drinking. Absrptin Once the ethanl gets int the stmach, it has t mve int the bld. The prcess by which this happens is knwn as absrptin. One very imprtant fact that pertains t alchl Getting the ethanl ut f the stmach and int the bld Pylrus Stmach Walls 20% 80% Stmach Walls Stmach Walls absrptin is that it desn't have t be digested in rder t mve frm the stmach t the bld. Anther very imprtant fact is that alchl can pass directly thrugh the walls f the stmach. These tw facts, taken tgether, mean that -- under the right circumstances -- absrptin f alchl can be accmplished fairly quickly. The ideal circumstance fr rapid absrptin is t drink n an empty stmach. When the alchl enters the empty stmach, abut 20 percent f it will make its way directly thrugh the stmach walls. The remaining 80 percent will pass thrugh the base f the stmach and enter the small intestine, frm which it is readily absrbed int the bld. Because the bdy desn't need t digest the alchl befre admitting it int the bldstream, the small intestine will be pen t the alchl as sn as it hits the stmach. But what if there is fd in the stmach? Suppse the persn has had smething t eat shrtly befre drinking, r eats fd while drinking; will that affect the absrptin f alchl? Yes it will. Fd has t be at least partially digested in the stmach befre it can pass t the small intestine. When the brain senses that fd is in the stmach, it cmmands a muscle at the base f the stmach t cnstrict, and cut ff the passage t the small intestine. The muscle is called the pylrus, r pylric valve. As lng as it remains cnstricted, little r nthing will mve ut f the stmach and int the small intestine. If alchl is in the stmach alng with the fd, the alchl will als remain trapped behind the pylrus. Sme f the alchl trapped in the stmach will begin t break dwn chemically befre it ever gets int the bld. In time, as the digestive prcess cntinues, the pylrus will begin t relax, and sme f the alchl and fd will pass thrugh. But the verall effect will be t slw the absrptin significantly. Because the alchl nly slwly gets int the bld, and because the bdy will cntinue t prcess and eliminate the alchl that des manage t get in there, the drinker's BAC will nt climb as high as it wuld have if he r she had drunk n an empty stmach. HS 178 R2/06 II-15

28 Distributin Once the alchl mves frm the stmach int the bld, it will be distributed thrughut the bdy by the bld. Alchl has an affinity fr water. The bld will carry the alchl t the varius tissues and rgans f the bdy, and will depsit the alchl in them in prprtin t their water cntents. Brain tissue has a fairly high water cntent, s the brain receives a substantial share f the distributed alchl. Muscle tissue als has a reasnably high water cntent, but fat tissue cntains very little water. Thus, very little alchl will be depsited in the drinker's bdy fat. This is ne factr that differentiates alchl frm certain ther drugs, ntably PCP and THC, which are very sluble in fat. The affinity f alchl fr water, and its lack f affinity fr fat, helps explain an imprtant difference in the way alchl affects wmen and men. Pund fr pund, the typical female's bdy cntains a gd deal less water than des the typical man's. This is because wmen have additinal adipse (fatty) tissue, designed in part t prtect a child in the wmb. A Swedish pineer in alchl research, E.M.P. Widmark, determined that the typical male bdy is abut 68% water, the typical female nly abut 55%. Thus, when a wman drinks, she has less fluid -- pund fr pund -- in which t distribute the alchl. If a wman and a man wh weighed exactly the same drank exactly the same amunt f alchl under the same circumstances, her BAC wuld climb higher than his. When we cuple this t the fact that the average wman is smaller than the average man, it becmes apparent that a given amunt f alchl will cause a higher BAC in a wman than it usually will in a man. Eliminatin As sn as the alchl enters the bld stream, the bdy starts trying t get rid f it. Sme f the alchl will be directly expelled frm the bdy chemically unchanged. Fr example, sme alchl will leave the bdy in the breath, in the urine, in sweat, in tears, etc. Hwever, nly a small prtin (abut 2-10%) f the ingested alchl will be directly eliminated. Mst f the alchl a persn drinks is eliminated by metablism. Metablism is a prcess f chemical change. In this case, alchl reacts with xygen in the bdy and changes, thrugh a series f intermediate steps, int carbn dixide and water, bth f which are directly expelled frm the bdy. HS 178 R2/06 II-16

29 Mst f the metablism f alchl in the bdy takes place in the liver. An enzyme knwn as alchl dehydrgenase acts t speed up the reactin f alchl with xygen. The speed f the reactin varies smewhat frm persn t persn, and even frm time t time fr any given persn. On the average, hwever, a persn's bld alchl cncentratin -- after reaching peak value -- will drp by abut per hur. Fr example, if the persn reaches a maximum BAC f 0.15, it will take abut ten hurs fr the persn t eliminate all f the alchl. Fr the average-sized male, a BAC f is equivalent t abut tw-thirds f the alchl cntent f a standard drink (i.e., abut tw-thirds f a can f beer, r glass f wine r sht f whiskey). Fr the average-sized female, that same BAC wuld be reached n just ne-half f a standard drink. S the typical male will eliminate abut tw-thirds f a drink per hur, while the typical female will burn up abut ne-half f a drink in that hur. We can cntrl the rate at which alchl enters ur bldstream. Fr example, we can gulp dwn ur drinks, r slwly sip them. We can drink n an empty stmach, r we can take the precautin f eating befre drinking. We can chse t drink a lt, r a little. But nce the alchl gets int the bld, there is nthing we can d t affect hw quickly it leaves. Cffee wn't accelerate the rate at which ur livers burn alchl. Neither will exercise, r deep breathing, r a cld shwer. We simply have t wait fr the prcess f metablism t mve alng at its wn speed. DOSE-RESPONSE RELATIONSHIPS Peple smetimes ask, "hw 'high' is 'drunk'?" What is the "legal limit" fr "drunk driving"? Hw much can a persn drink befre becming "impaired"? There is n simple answer t these r similar questins, except t say that any amunt f alchl will affect a persn's ability t drive t sme degree. It is true that the laws f nearly all States establish a BAC limit at which it is explicitly unlawful t perate a vehicle. In thse cases, that "limit" is 0.08 BAC. But every State als makes it unlawful t drive when "under the influence" f alchl, and the law admits the pssibility that a particular persn may be under the influence at much lwer BACs. Hw much alchl des smene have t drink t reach these kinds f BACs? Obviusly, as we've already seen, it depends n hw much time the persn spends drinking, n whether the persn is a man r a wman, n hw large the persn is, n whether the drinking takes place n an empty stmach, and n certain ther factrs. But let's take as an example a 175-pund man. If he drinks tw beers, r tw shts f whiskey, in quick successin n an empty stmach, his BAC will climb t slightly abve Tw mre beers will bst him abve One mre will push him ver In ne respect, then, it desn't take very much alchl t impair smene: "a cuple f beers" can d it. HS 178 R2/06 II-17

30 But in anther respect, when we cntrast alchl with virtually any ther drug, we find that impairment by alchl requires a vastly larger dse than des impairment by the thers. Cnsider exactly what a BAC f 0.08 means. Bld alchl cncentratin is expressed in terms f the "number f grams f ethanl in every 100 milliliters f bld". Therefre, 0.08 means that there is 0.08 grams (g) f ethanl in every 100 milliliters (ml) f bld. Yu will find that BAC results are reprted in a variety f units. Tw cmmn variatins are milligrams/milliliters and percent. There are 1000 milligrams (mg) in ne gram; therefre, 0.08 grams equals 80 milligrams (mg) and a BAC f 0.08 wuld be reprted as 80 mg f ethanl/100 ml f bld. Percent means parts per ne hundred. In this example 0.08 grams/100 milliliters f bld is equivalent t 0.08% BAC. Nte: The term BAC is used in the manual. Hwever, it shuld be understd t refer t either Bld Alchl Cncentratin (BAC) r Breath Alchl Cncentratin (BrAC) depending n the legal requirements f the jurisdictin. HS 178 R2/06 II-18

31 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. The average DWI vilatr cmmits that vilatin times a year. 2. In typical enfrcement jurisdictins ne DWI vilatin in results in arrest. 3. In the Frt Lauderdale study, plice fficers arrested percent f the drivers they cntacted whse BACs were.10 t Name three different chemicals that are alchls. Which f these is beverage alchl, intended fr human cnsumptin? What is the chemical symbl fr beverage alchl? 5. What is the name f the chemical prcess by which beverage alchl is prduced naturally? What is the name f the prcess used t prduce highcncentratin beverage alchl? 6. Multiple Chice: "Bld alchl cncentratin is the number f f alchl in every 100 milliliters f bld." A. grams B. milligrams C. nangrams 7. True r False: Pund-fr-pund, the average wman cntains mre water than des the average man. 8. What d we mean by the "prf" f an alchlic beverage? 9. Every chemical that is an "alchl" cntains what three elements? 10. True r False: Mst f the alchl that a persn drinks is absrbed int the bld via the small intestine. 11. What is the name f the muscle that cntrls the passage frm the stmach t the lwer gastrintestinal tract? 12. True r False: Alchl can pass directly thrugh the stmach walls and enter the bldstream. HS 178 R2/06 II-19

32 13. Multiple Chice: Suppse a man and a wman wh bth weigh 160 punds arrived at a party and started t drink at the same time. And suppse that, tw hurs later, they bth have a BAC f Chances are... A. he had mre t drink than she did. B. they drank just abut the same amunt f alchl. C. he had less t drink than she did. 14. In which rgan f the bdy des mst f the metablism f the alchl take place? 15. What is the name f the enzyme that aids the metablism f alchl? 16. Multiple Chice: Once a persn reaches his r her peak BAC, it will drp at a rate f abut per hur. A B C True r False: It takes abut thirty minutes fr the average 175-pund man t "burn ff" the alchl in ne 12-unce can f beer. HS 178 R2/06 II-20

33 SESSION III THE LEGAL ENVIRONMENT HS 178 R2/06

34 SESSION III THE LEGAL ENVIRONMENT Upn successfully cmpleting this sessin, the participant will be able t: State and discuss the elements f DWI ffenses. Discuss the prvisins f the implied cnsent law. Discuss the relevance f chemical test evidence. Discuss precedents established thrugh case law. CONTENT SEGMENTS LEARNING ACTIVITIES A. Basic DWI Statute: Driving While Under The Influence Instructr-Led Presentatin B. Implied Cnsent Law and Presumptins C. Illegal Per Se Statute: Driving With A Prscribed Bld Alchl Cncentratin D. Preliminary Breath Testing E. Case Law Review Reading Assignments HS 178 R2/06

35 INTRODUCTION An understanding f impaired driving laws that apply in yur jurisdictin is critical t DWI enfrcement. All states (and many lcal jurisdictins) have their wn impaired driving laws. While the specific language f these laws may vary significantly, mst include the fllwing prvisins: a Basic DWI Law; an Implied Cnsent Law; an Illegal Per Se Law; a Preliminary Breath Testing Law. In the fllwing pages these fur types f impaired driving laws are discussed in detail. The illustratins prvided are drawn frm the Unifrm Vehicle Cde. Yu are respnsible fr learning whether and hw each law applies in yur jurisdictin. BASIC DWI LAW A state's basic DWI statute may be subtitled Driving While Under the Influence, r smething similar. Typically the statute describes the wh, what, where and hw f the ffense in language such as this: It is unlawful fr any persn t perate r be in actual physical cntrl f any vehicle within this state while under the influence f alchl and/r any drug. ARREST In rder t arrest smene fr a basic DWI vilatin, a law enfrcement fficer must have prbable cause t believe that all elements f the ffense are present. That is, the fficer must believe that: the persn in questin was perating r in actual physical cntrl f a vehicle (truck, van, autmbile, mtrcycle, even bicycle, accrding t specific prvisins in varius states) while under the influence f alchl, anther drug, r bth. HS 178 R2/06 III-1

36 Nte: In sme states it is unlawful t perate a vehicle while impaired anywhere in the State: n r ff radways, n private prperty, and s n. In ther states, the law applies nly n publicly accessible radways. CONVICTION In rder t cnvict a persn f DWI, it is necessary t establish that all fur elements were present. With regard t under the influence, curts have generally held that phrase t mean that the ability t perate a vehicle has been affected r impaired. T cnvict a persn f a basic DWI vilatin, it is usually necessary t shw that the persn's capability f safely perating the vehicle has been impaired. If DWI is a criminal ffense, the facts must be established "beynd a reasnable dubt." If DWI is an infractin, the standard f prf may be less. In either case, it is the fficer's respnsibility t cllect and t thrughly dcument all evidence. DESCRIPTION IMPLIED CONSENT LAW The questin f hw much impairment in the ability t perate a vehicle will equate with driving while under the influence is nt cmpletely clear. Sme curts have held that the slightest degree f impairment t the ability t drive means the driver is "under the influence." Other curts have held that there must be evidence f substantial impairment t the ability t drive befre DWI cnvictin is warranted. Therefre, prving that a driver was "under the influence" has been (and cntinues t be) difficult. T help reslve this difficulty, states have enacted Implied Cnsent Laws. The principal purpse f the Implied Cnsent Law is t encurage peple arrested fr DWI t submit t a chemical test t prvide scientific evidence f alchl influence. The Implied Cnsent Law usually includes language similar t the fllwing: Any persn wh perates r is in actual physical cntrl f a mtr vehicle upn the public highways f this state shall be deemed t have given cnsent t a chemical test fr the purpse f determining the alchl and/r drug cntent f bld when arrested fr any acts alleged t have been cmmitted while the persn was perating r in actual physical cntrl f a vehicle while under the influence f alchl and/r any drug. HS 178 R2/06 III-2

37 The Implied Cnsent Law states drivers must submit t a chemical test(s). The law prvides penalties fr refusal t submit t the test. The law als prvides that the individual's driver's license may be suspended r revked if the refusal is fund t be unreasnable. Including a prvisin fr license suspensin r revcatin as a means f encuraging thse arrested fr DWI t submit t the test s that valuable chemical evidence may be btained. LEGAL PRESUMPTIONS Legal presumptins define the significance f the scientific chemical test evidence. Generally the Implied Cnsent Law prvides an interpretatin r presumptin fr the chemical test evidence like the fllwing: Fr Example: If the chemical test shws that the persn's bld alchl cncentratin (BAC) is r mre it shall be presumed that the persn is under the influence. If the test shws that the BAC is r less, it shall be presumed that the persn is nt under the influence. If the test shws that the BAC is mre than but less than, there is n presumptin as t whether the persn is r is nt under the influence. NOTE: These laws vary frm state t state. Be aware f yur state's law. The weight f the chemical test evidence is presumptive f alchl influence, nt cnclusive. If there is n evidence t the cntrary, the curt may accept the legal presumptin and cnclude that the driver was r was nt impaired n the basis f the chemical test alne. Hwever, ther evidence, such as testimny abut the driver's appearance, behavir r speech, fr example, may be sufficient t vercme the presumptive weight f the chemical test. It is pssible fr a persn whse BAC at the time f arrest is abve the per se r presumptive level legal limit t be acquitted f DWI. It is als pssible fr a persn whse BAC at the time is belw the per se r presumptive level t be cnvicted f DWI. Cnsider the fllwing examples: Example 1 A driver is arrested fr DWI. A chemical test administered t the driver shws a BAC f At the subsequent trial, the chemical test-evidence is intrduced. In additin, the arresting fficer testifies abut the driver's appearance, behavir and driving. The testimny is sketchy, cnfused and unclear. HS 178 R2/06 III-3

38 Anther witness testifies that the driver drve, behaved and spke nrmally. The curt finds the driver nt guilty f DWI. Example 2 A driver is arrested fr DWI. A chemical test administered t the driver shws a BAC f At the subsequent trial, the chemical test evidence is intrduced. In additin, the arresting fficer testifies abut the driver's appearance, slurred speech, impaired driving and inability t perfrm divided attentin field sbriety tests. The testimny is clear and descriptive. The curt finds the driver guilty f DWI. The difference in utcmes in the tw examples cited is directly attributable t the evidence ther than the chemical test evidence presented in curt. Remember that the chemical test prvides presumptive evidence f alchl influence; it des nt prvide cnclusive evidence. While the "legal limit" in a given jurisdictin may be 0.08/0.10 BAC, many peple will demnstrate impaired driving ability lng befre that "limit" is reached. DESCRIPTION ILLEGAL PER SE LAW Mst states include in their DWI Law r Implied Cnsent Law a prvisin making it illegal t drive with a prescribed bld alchl cncentratin (BAC). This prvisin, ften called an Illegal Per Se Law, creates anther alchl-related driving ffense which is related t, but different frm the basic DWI ffense. Fllwing is a typical Illegal Per Se Prvisin: It is unlawful fr any persn t perate r be in actual physical cntrl f any vehicle within this state while having a bld alchl cncentratin at r abve state s level. The Illegal Per Se Law makes it an ffense in and f itself t drive while having a BAC at r abve state s level. T cnvict a driver f an Illegal Per Se Vilatin, it is sufficient t establish that the driver's BAC was at r abve state s level while perating a vehicle in the state. It is nt necessary t establish that the driver was impaired. NOTE: These laws vary frm state t state. Knw yur state's law. The Illegal Per Se Law des nt replace the basic DWI law. Rather, the tw wrk tgether. Each defines a separate ffense: HS 178 R2/06 III-4

39 The basic DWI Law makes it an ffense t drive while under the influence f alchl and/r any drug. The Illegal Per Se Law makes it an ffense t drive while having mre than a certain percentage f alchl in the bld. Fr the basic DWI ffense, the chemical test result is presumptive evidence. Fr the Illegal Per Se ffense, the chemical test result is cnclusive evidence. PURPOSE The principal purpse f the Illegal Per Se Law is t aid in prsecutin f drinking and driving ffenders. The law reduces the state's burden f prf. It is nt necessary fr the prsecutr t shw that the driver was "under the influence." The state is nt required t demnstrate that the driver's ability t drive was affected. It is sufficient fr the state t shw that the driver's BAC was at r abve state s level. While the statute aids in prsecutin, it des nt really make drinking and driving enfrcement easier. An fficer must still have prbable cause t believe that the driver is impaired befre an arrest can be made. The Implied Cnsent Law usually requires that the driver already be arrested befre cnsenting t the chemical test. The law als requires that the arrest be made fr "acts alleged t have been cmmitted while perating a vehicle while under the influence." Therefre, the fficer generally must establish prbable cause that the ffense has been cmmitted and make a valid arrest befre the chemical test can be administered. SUMMARY Plice fficers dealing with impaired driving suspects must cntinue t rely primarily n their wn pwers f detectin t determine whether an arrest shuld be made. Usually it is impssible t btain a legally admissible chemical test result until after the driver has been arrested. Smetimes drivers will refuse the chemical test after they have been arrested. Then the case will depend strictly upn the fficer's bservatins and testimny. When making a DWI arrest, always assume that the chemical test evidence will nt be available. It is critical that yu rganize and present yur bservatins and testimny in a clear and cnvincing manner. In this way, mre drivers wh vilate drinking and driving laws will be cnvicted, regardless f whether they take the chemical tests, and regardless f the test results. HS 178 R2/06 III-5

40 PRELIMINARY BREATH TEST LAW DESCRIPTION Many states have enacted preliminary breath testing (PBT) laws. These laws permit a plice fficer t request a driver suspected f DWI t submit t an n-the-spt breath test prir t arresting the driver fr DWI. PBT laws vary significantly frm ne state t anther. A typical statute reads as fllws: When an fficer has reasn t believe frm the manner in which a persn is perating r has perated a mtr vehicle that the persn has r may have cmmitted the ffense f perating while under the influence, the fficer may request that persn t prvide a sample f breath fr a preliminary test f the alchl cntent f the bld using a device apprved fr this purpse. APPLICATION PBT results are used t help determine whether an arrest shuld be made. The results usually are nt used as evidence against the driver in curt. Hwever, PBT laws may prvide statutry r administrative penalties if the driver refuses t submit t the test. These penalties may include license suspensin, fines r ther sanctins. HISTORY OF CASE LAW The fllwing cases are landmark curt decisins relevant t the admissibility f Standardized Field Sbriety Tests (SFSTs) including Hrizntal Gaze Nystagmus (HGN). Challenges t the admissibility have been based n (1) scientific validity and reliability; (2) relatinship f HGN t specific BAC level; (3) fficer training, experience, and applicatin. The State f Arizna (Petitiner) v. The Superir Curt f the State f Arizna, in and fr the cunty f Cchise, and the Hn. James L. Riles, Divisin III (Respndent) and Frederick Andrew Blake (Real Party in Interest) N PR Curt f Appeals N. 2 CA-SA 0254 Cchise C. N April 7, 1986 HS 178 R2/06 III-6

41 The Blake case established a very imprtant precedent in Arizna. The trial curt ruled that the HGN test was nt reliable under Frye v. United States, 293 F.2d 1013 (DC Cir. 1923) and thus culd nt be used as part f prbable cause. The case was dismissed by the trial curt. This ruling was appealed by the state and the rder f dismissal was reversed by the curt f appeals and the case was remanded fr further prceedings (7/25/85). The appellate curt decisin was reviewed by the State Supreme Curt. The State Supreme Curt apprved the curt f appeal's pinin, as mdified, and vacated the trial curt's dismissal f the Blake prsecutin fr DWI and remanded the case fr prceedings nt incnsistent with its pinin. Fllwing is a summary f the facts f the case and a brief verview f the appellate curt and Supreme curt pinins. FACTS: After the defendant was stpped fr DUI, he was given field sbriety tests n which he did fair. The fficer als administered a Hrizntal Gaze Nystagmus (HGN) test and estimated that defendant's bld alchl cntent was.17. The intxilizer shwed a.163 reading. At the mtin t suppress, the state presented testimny frm the SCRI prject directr which riginally researched the HGN test. The researchers fund that they culd determine whether a persn was abve r belw a.10 bld alchl level 80% f the time. Finnish researchers had reached the same results. The prject directr testified that HGN has been accepted by var-ius researchers, varius plice agencies and the Natinal Highway Traffic Safety Administratin. The plice fficer wh helped develp and standardize HGN testified abut his field experience with HGN and his wrk in the research n HGN. The fficer testified that HGN was particularly useful in detecting drivers wh had ver.10 alchl in their bld wh wuld therwise pass the field sbriety tests. The Arizna fficer wh administers HGN training testified that experienced drinkers with.13 r.14 reading culd pass the ther field sbriety tests and evade arrest. He testified that t be certified fr HGN the fficer had t perfrm 35 prac-tice tests and then had t pass an exam where they must determine the bld alchl level f suspects within.02 fur ut f five times. The training fficer als testified that the fficer must cntinue t use the test regularly in the field and shuld be evaluated t make sure the fficer maintains his prficiency. The arrest-ing fficer testified that he was certified as an HGN specialist. The arresting fficer testified withut HGN results, he did nt think he had prbable cause t arrest the defendant. The trial curt ruled that the HGN test was nt reliable under Frye v. United States and thus culd nt be used as part f prbable cause. Accrdingly, the curt dismissed the prsecutin. The STATE appealed this decisin. ISSUE: Did the trial curt err in excluding the HGN evidence? HS 178 R2/06 III-7

42 RULING: Yes, "We cnclude that the recrd shws nt nly that the HGN is sufficiently reliable t prvide prbable cause fr arrest, but that with the prper fundatin as t the expertise f the fficer administering it, testimny cncerning the administratin f the test and its results is admissible at trial. The recrd shws that the HGN test has gained general acceptance in the field in which it belngs." The curt went n t say that they were unable t rule n whether the results f this particular HGN test wuld be admissible because the nly evidence abut the fficer's prficiency was his testimny that he was certified. The curt f appeals nted that the fficer kept a lg f when he administered the test and said, "This lg wuld be useful if it demnstrated that (the arresting fficer) was as prficient in the field as he was n the examinatin." The rder f dismissal is reversed and the case is remanded fr further prceedings. Mr. Blake sught review f the curt f appeals pinin and it was granted by the Arizna Supreme Curt. ISSUES: (1) Whether the HGN test is sufficiently reliable t establish prbable cause t arrest fr DWI, and (2) Whether HGN test results are sufficiently reliable t be intrduced in evidence at trial. CONCLUSION: "We find that the Hrizntal Gaze Nystagmus test prperly administered by a trained plice fficer is sufficiently reliable t be a factr in establishing prbable cause t arrest a driver fr vilating A.R.S (B). We further find that the Hrizntal Gaze Nystagmus test satisfies the Frye test fr reliability and may be admitted in evidence t crrbrate r attack, but nt t quantify, the chemical analysis f the accused's bld alchl cntent. It may nt be used t establish the accused's level f bld alchl in the absence f a chemical analysis shwing the prscribed level in the accused's bld, breath r urine. In subsectin (A) prsecutins it is admissible, as is ther evidence f defendant's behavir, t prve that he was "under the influence." We apprve the curt f appeals' pinin, as mdified, vacate the trial curt's dismissal f the Blake prsecutin fr vilatin f A.R.S (B), and remand fr prceedings nt incnsistent with this pinin. A detailed analysis f the facts reviewed by the Supreme Curt is cntained in the pinin. PEOPLE vs. LOOMIS (Califrnia, 1984) 156 Cal. App. 3d 1, 203 Cal. Rptr. 767 (Cal. Super. 1984) HS 178 R2/06 III-8

43 The arresting fficer attempted t testify t his pinin cncerning the suspect's BAC, in quantitative terms, based slely n the angle f nset f HGN. The suspect had refused t submit t a chemical test. The curt held that the fficer was nt entitled t testify as either a lay r expert witness abut HGN, r t give his pinin abut the defendant's BAC. The curt held that HGN is a new frm f scientific evidence, that will be allwed nly when there is a preliminary shwing f its general acceptance in the scientific cmmunity. Mrever, it was clear frm the fficer's testimny that he had nt been frmally r prperly trained in HGN, and didn't really understand hw the test is t be given. STATE vs. BLAKE (Arizna, 1986) 718 P.2d 171 (Arizna, 1986); see als State vs. Superir Curt f Cunty f Cchise, 149 Ariz 269, 718 P.2d 171, 60 ALR 4th, This is the landmark ruling n HGN because it was the first case decided at a State Supreme Curt. The Arizna Supreme Curt fund that HGN satisfies the Frye standards fr evidence t crrbrate, r attack, the issue f a suspect's impairment. The Frye standards are thse set by the U.S. Supreme Curt t gvern the admissibility f "new" scientific evidence. In effect, the Arizna Supreme Curt tk judicial ntice f HGN, s that it is n lnger necessary, in Arizna, t intrduce expert scientific testimny t secure the admissibility f HGN. Hwever, the curt did set standards gverning the training f fficers wh wuld be qualified t testify abut HGN, and the curt explicitly ruled that HGN cannt be used t establish BAC quantitatively in the absence f a chemical test. STATE vs. MURPHY (Iwa, 1990) The curt held that the results f a HGN test culd be admitted int evidence at a DWI trial t prve the intxicatin f the driver. (Nt t be used t determine specific BAC level.) The curt cnsidered HGN t be ne f the SFST's fficers administer and in this case the fficer was prperly trained t administer the test. The curt felt that the fficer did nt have t qualify as an expert witness because the bservatins were bjective in nature and the fficer needed n special qualificatins t be able t interpret the results. STATE v. HOMAN (732 N.E.2d 952, OHIO 2000) This significant State Supreme Curt case held that Standardized Field Sbriety Tests (SFSTs) cnducted in a manner that departs frm the methds established by the Natinal Highway Traffic Safety Administratin (NHTSA) are inherently unreliable. The curt determined that the administratin f the SFSTs, including the ne-leg stand and walk-and-turn tests, must be perfrmed in strict cmpliance with the directives issued by NHTSA. HS 178 R2/06 III-9

44 The curt cncluded that because the arresting fficer admitted t nt having strictly cmplied with established plice prcedure during the administratin f the HGN and walk-and-turn tests, the results f the SFSTs must be excluded. In cntrast with ther curt rulings, the HOMAN curt fund it is well established that in field sbriety testing even minr deviatins frm the standardized prcedures can severely bias the results. This decisin was based upn an lder editin f this manual where an ambiguus phrase was strictly interpreted by the curt. The phrase in questin nly applied t the use f SFSTs fr training purpses. SMITH vs. WYOMING (Wyming, 2000) The State Supreme Curt held a law enfrcement fficer may testify t the results f field sbriety tests (including HGN) if it is shwn that the fficer has been adequately trained in the administratin and assessment f thse field sbriety tests, and cnducted them in substantial accrdance with that training. The curt further stated deficiencies in the administratin f the sbriety tests g t the weight accrded the evidence and nt t its admissibility. TO SUMMARIZE: The prevailing trend in curt is t accept HGN as evidence f impairment, prvided the prper scientific fundatin is laid. Hwever, curts cnsistently reject any attempt t derive a quantitative estimate f BAC frm nystagmus. Additinally, fficers shuld recgnize the relevance f administering the Standardized Field Sbriety Tests in accrdance with the NHTSA guidelines. The Natinal Traffic Law Center (NTLC) has a list f every state s Appellate Curt/ Supreme Curt case addressing HGN and SFST issues. The materials are available t law enfrcement at r by phne (703) HS 178 R2/06 III-10

45 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. The elements f the Basic DWI Law are: a. b. c. d. 2. If DWI is a criminal ffense, the standard f prf is 3. The purpse f the Implied Cnsent Law is 4. Under the Implied Cnsent Law, chemical test evidence is evidence. 5. The Illegal Per Se Law makes it unlawful t 6. The PBT law permits a plice fficer t request a driver suspected f DWI t 7. PBT results are used t help determine HS 178 R2/06 III-11

46 ATTACHMENT(S)

47 ATTACHMENT A American Prsecutrs Research Institute Natinal Traffic Law Center HORIZONTAL GAZE NYSTAGMUS STATE CASE LAW SUMMARY INTRODUCTION The fllwing state case law summary cntains the seminal cases fr each state, the District f Clumbia and the Federal curts n the admissibility f HGN. Three main issues regarding the admissibility f the HGN test are set ut under each state: evidentiary admissibility, plice fficer testimny, and purpse and limits f the HGN test results. The case r cases that address each issue are then briefly summarized and cited. Alabama I. Evidentiary Admissibility HGN is a scientific test that must satisfy the Frye standard f admissibility. The Supreme Curt f Alabama fund that the State had nt presented sufficient evidence regarding the HGN test s reliability r its acceptance by the scientific cmmunity t determine if the Curt f Criminal Appeals crrectly determined that the test meets the Frye standards. Malne v. City f Silverhill, 575 S.2d 106 (Ala. 1990). II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt did nt address this issue. III. Purpse and Limits f HGN The Curt did nt address this issue. Alaska I. Evidentiary Admissibility HGN is a scientific test. It is generally accepted within the relevant scientific cmmunity. Ballard v. Alaska, 955 P.2d 931, 939 (Alaska Ct. App. 1998). II. Plice Officer Testimny Needed t Admit HGN Test Result A plice fficer may testify t the results f HGN testing as lng as the gvernment establishes a fundatin that the fficer has been adequately trained in the test. Ballard, 955 P.2d at 941.

48 III. Purpse and Limits f HGN HGN testing is a reliable indicatr f a persn s alchl cnsumptin and, t that extent, HGN results are relevant. The curt cautined that the HGN test culd nt be used t crrelate the results with any particular bld-alchl level, range f bld-alchl levels, r level f impairment. Ballard, 955 P.2d at 940. Arizna I. Evidentiary Admissibility HGN is a scientific test that needs t satisfy the Frye standard f admissibility. State has shwn that HGN satisfies the Frye standard. State v. Superir Curt (Blake), 718 P.2d 171, 181 (Ariz. 1986) (seminal case n the admissibility f HGN). II. Plice Officer Testimny Needed t Admit HGN Test Result The prper fundatin fr [admitting HGN test results]... includes a descriptin f the fficer's training, educatin, and experience in administering the test and shwing that prper prcedures were fllwed. Arizna ex. rel. Hamiltn v. City Curt f Mesa, 799 P.2d 855, 860 (Ariz. 1990). See als Arizna ex. Rel. McDugall v. Ricke, 778 P.2d 1358, 1361 (Ariz. Ct. App. 1989). III. Purpse and Limits f HGN HGN test results are admissible t establish prbable cause t arrest in a criminal hearing. State v. Superir Curt (Blake), 718 P.2d at 182. Where a chemical analysis has been cnducted, the parties may intrduce HGN test results in the frm f estimates f BAC ver.10% t challenge r crrbrate that chemical analysis. Ricke, 778 P.2d at When n chemical analysis is cnducted, the use f HGN test results is t be limited t shwing a symptm r clue f impairment. Hamiltn, 799 P.2d at 858. Arkansas I. Evidentiary Admissibility Nvel scientific evidence must meet the Prater (relevancy) standard fr admissibility. Because law enfrcement has used HGN fr ver thirty-five years, a Prater inquiry is nt necessary as the test is nt nvel scientific evidence. Whitsn v. Arkansas, 863 S.W.2d 794, 798 (Ark. 1993).

49 II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt did nt address this issue. III. Purpse and Limits f HGN HGN may be admitted as evidence f impairment, but is nt admissible t prve a specific BAC. Whitsn, 863 S.W.2d at 798. Califrnia I. Evidentiary Admissibility HGN is a scientific test and the Kelly/Frye general acceptance standard must be applied. Califrnia v. Leahy, 882 P.2d 321 (Cal. 1994). Califrnia v. Jehnk, 35 Cal. App. 4 th 1488, 1493, 42 Cal. Rptr. 2d 6, 8 (Cal. Ct. App. 1995). [A] cnsensus drawn frm a typical crss-sectin f the relevant, qualified scientific cmmunity accepts the HGN testing prcedures. Jehnk, 35 Cal. App. 4 th at 1507, 42 Cal. Rptr. 2d at 17. II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer testimny is insufficient t establish general acceptance in the relevant scientific cmmunity. Leahy, 882 P2d. at 609. Als see Peple v. Williams, 3 Cal. App. 4 th 1326 (Cal. Ct. App. 1992). Plice fficer can give pinin, based n HGN and ther test results, that defendant was intxicated. Furthermre, plice fficer must testify as t the administratin and result f the test. Jehnk, 35 Cal. App. 4 th at 1508, 42 Cal. Rptr. 2d at 18. III. Purpse and Limits f HGN HGN may be used, alng with ther scientific tests, as sme evidence that defendant was impaired. Jehnk, 35 Cal. App. 4 th at 1508, 42 Cal. Rptr. 2d at 17. HGN test results may nt be used t quantify the BAC level f the defendant. Califrnia v. Lmis, 156 Cal. App. 3d Supp. 1, 5-6, 203 Cal. Rptr. 767, (1984).

50 Cnnecticut I. Evidentiary Admissibility Prper fundatin must be established in accrdance with Daubert prir t the intrductin f HGN test results. State v. Russ, 773 A. 2d 965 (Cnn. App. Ct. 2001). Als see, Cnnecticut v. Merritt, 647 A.2d 1021, 1028 (Cnn. App. Ct. 1994). HGN must meet the Frye test f admissibility. In this case, the state presented n evidence t meet its burden under the Frye test. HGN satisfies the Prter standards and is admissible. (In State v. Prter, 698 A.2d 739 (1997), the Cnnecticut Supreme Curt held the Daubert apprach shuld gvern the admissibility f scientific evidence and expressed factrs t be cnsidered in assessing evidence.) Cnnecticut v. Carlsn, 720 A.2d 886 (Cnn. Super. Ct. 1998). II. Plice Officer Testimny Needed t Admit HGN Test Result Must lay a prper fundatin with a shwing that the fficer administering the test had the necessary qualificatins and fllwed prper prcedures. Cnnecticut v. Merritt, 647 A.2d 1021, 1028 (Cnn. App. Ct. 1994). III. Purpse and Limits f HGN HGN test results can be used t establish prbable cause t arrest in a criminal hearing. Cnnecticut v. Ryce, 616 A.2d 284, 287 (Cnn. App. Ct. 1992). Delaware I. Evidentiary Admissibility HGN evidence is scientific and must satisfy the Delaware Rules f Evidence standard. Delaware v. Ruthardt, 680 A.2d 349, 356 (Del. Super. Ct. 1996). HGN evidence is acceptable scientific testimny under the Delaware Rules f Evidence. Ruthardt, 680 A.2d at 362. II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer may be qualified as an expert t testify abut the underlying scientific principles that crrelate HGN and alchl. Delaware plice receiving three-day (twenty-fur hur) instructin n HGN test administratin are nt qualified t d this. Ruthardt, 680 A.2d at Plice fficer testimny abut training and experience alne, withut expert testimny, is nt enugh fundatin t admit HGN test results. Zimmerman v. Delaware, 693 A.2d 311, 314 (Del. 1997).

51 III. Purpse and Limits f HGN HGN test results admissible t shw prbable cause in a criminal hearing. Ruthardt, 680 A.2d at 355. HGN test results admissible t shw prbable cause in a civil hearing. Cantrell v. Divisin f Mtr Vehicles, 1996 Del. Super. LEXIS 265 (Del. Super. Ct. Apr. 9, 1996). HGN test results cannt be used t quantify the defendant s BAC. Hwever, they can be used as substantive evidence that the defendant was under the influence f intxicating liqur. Ruthardt, 680 A.2d at District f Clumbia I. Evidentiary Admissibility The Curt des nt address this issue. II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt used the case law f ther jurisdictins t cme t the cnclusin that the Officer in the case culd testify as an expert n the administratin and the results f the HGN test. Therefre, in this case, the evidence was prperly admitted using the Officer as the expert. See Karamychev v. District f Clumbia, 772 A. 2d 806 (D.C. App. 2001). III. Purpse and Limits f HGN The Curt has nt yet addressed this issue. Flrida I. Evidentiary Admissibility The 3 rd District Curt fund HGN t be a quasi-scientific test. Its applicatin is dependent n a scientific prpsitin and requires a particular expertise utside the realm f cmmn knwledge f the average persn. It des nt have t meet the Frye standard because HGN has been established and generally accepted in the relevant scientific cmmunity, and has been Frye tested in the legal cmmunity. The curt tk judicial ntice that HGN is reliable based n supprtive case law frm ther jurisdictins, numerus testifying witnesses and studies submitted. It is n lnger new r nvel and there is simply n need t reapply a Frye analysis. Williams v. Flrida, 710 S. 2d 24 (Fla. Dist. Ct. App. 1998).

52 The 4 th District Curt fund HGN t be a scientific test. Hwever, because it is nt nvel, the Frye standard is nt applicable. Hwever, [e]ven if nt invlving a new scientific technique, evidence f scientific tests is admissible nly after demnstratin f the traditinal predicates fr scientific evidence including the test's general reliability, the qualificatins f test administratrs and technicians, and the meaning f the results. Withut this predicate, the danger f unfair prejudice, cnfusin f issues r misleading the jury frm admitting HGN test results utweighs any prbative value. The state did nt establish the apprpriate fundatin fr the admissibility f HGN test results. Flrida v. Meadr, 674 S. 2d 826, 835 (Fla. Dist. Ct. App. 1996), review denied, 686 S. 2d 580 (Fla. 1996). II. Plice Officer Testimny Needed t Admit HGN Test Result We take judicial ntice that HGN test results are generally accepted as reliable and thus are admissible int evidence nce a prper fundatin has been laid that the test was crrectly administered by a qualified DRE [Drug Recgnitin Expert]. Williams, 710 S. 2d at 32. Als see Bwn v. Flrida, 745 S. 2d 1108 (Fl. Dist. Ct. App. 1999) which expands Williams. Allws trper t explain HGN, but district requires cnfirmatry bld, breath r urine test befre admitting HGN int evidence. N evidence presented as t the plice fficer s qualificatins nr administratin f the HGN test in this case. Meadr, 674 S. 2d at 835. III. Purpse and Limits f HGN The HGN test results alne, in the absence f a chemical analysis f bld, breath, r urine, are inadmissible t trigger the presumptin prvided by the DUI statute, and may nt be used t establish a BAC f.08 percent r mre. Williams, 710 S. 2d at 36. Gergia I. Evidentiary Admissibility The HGN test is admissible as a scientifically reliable field sbriety evaluatin under the Harper verifiable certainty standard. Manley v. Gergia, 424 S.E.2d 818, (Ga. Ct. App. 1992). HGN testing is judicially nticed as a scientifically reliable test and therefre expert testimny is n lnger required befre the test results can be admitted. Hawkins v. Gergia, 476 S.E.2d 803, (Ga. Ct. App. 1996).

53 II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer, wh received specialized training in DUI detectin and wrked with a DUI task frce fr tw years, was permitted t testify that, in his pinin, defendant was under the influence. Sieveking v. Gergia, 469 S.E.2d 235, (Ga. Ct. App. 1996). A Plice fficer wh testifies t the results, administratin, and prcedure f HGN may be crssexamined abut thse areas even if the state nly ffers him as a POST-certified fficer. This is because the analysis and expertise needed fr HGN g far beynd thse needed by a lay persn wh bserves the walk and turn r ne leg stance tests. James v. State, 2003 WL (Ga. App.). III. Purpse and Limits f HGN HGN test can be admitted t shw that the defendant was under the influence f alchl t the extent that it was less safe fr him t drive. Sieveking, 469 S.E.2d at 219. Hawaii I. Evidentiary Admissibility HGN is a scientific test. The HGN test is reliable under the Hawaii Rules f Evidence and admissible as evidence that plice had prbable cause t believe that a defendant was DUI. Judicial ntice f the validity f the principles underlying HGN testing and the reliability f HGN test results is apprpriate. HGN test results can be admitted int evidence if the fficer administering the test was duly qualified t cnduct the test and the test was perfrmed prperly. Hawaii v. It, 978 P.2d 191 (Haw. Ct. App. 1999). II. Plice Officer Testimny Needed t Admit HGN Test Result Befre HGN test results can be admitted int evidence in a particular case, hwever, it must be shwn that (1) the fficer administering the test was duly qualified t cnduct and grade the test; and (2) the test was perfrmed prperly in the instant case. Hawaii v. It, 978 P.2d 191 (Haw. Ct. App. 1999), See als Hawaii v. Tymura, 904 P.2d 893, 911 (Haw. 1992) and Hawaii v. Mntalb, 828 P2d. 1274, 1281 (Haw. 1992). III. Purpse and Limits f HGN HGN test can be admitted as evidence that plice had prbable cause t believe that a defendant was DUI. Hawaii v. It, 978 P.2d 191 (Haw. Ct. App. 1999).

54 Idah I. Evidentiary Admissibility HGN test results admitted under the Idah Rules f Evidence. Rule 702 is the crrect test in determining the admissibility f HGN. State v. Gleasn, 844 P.2d 691, 694 (Idah 1992). II. Plice Officer Testimny Needed t Admit HGN Test Result Officer may testify as t administratin f HGN test, but nt crrelatin f HGN and BAC. State v. Garrett, 811 P.2d 488, 493 (Idah 1991). III. Purpse and Limits f HGN HGN test results may nt be used at trial t establish the defendant's bld alchl level... Althugh we nte that in cnjunctin with ther field sbriety tests, a psitive HGN test result des supply prbable cause fr arrest, standing alne that result des nt prvide prf psitive f DUI. Garrett, 811 P.2d at 493. HGN may be admitted fr the same purpse as ther field sbriety test evidence -- a physical act n the part f [defendant] bserved by the fficer cntributing t the cumulative prtrait f [defendant] intimating intxicatin in the fficer's pinin. Gleasn, 844 P.2d at 695. Illinis I. Evidentiary Admissibility HGN meets Frye standard f admissibility. Peple v. Buening, 592 N.E.2d 1222, 1227 (Ill. App. Ct. 1992). Despite the ruling f the Buening appellate curt, the Furth District Curt f Appeals declined t recgnize HGN s general acceptance withut a Frye hearing. The curt criticized the Buening curt fr taking judicial ntice f HGN s reliability based n the decisins f ther jurisdictins. Peple v. Kirk, 681 N.E.2d 1073, 1077 (Ill. App. Ct. 1997). The state supreme curt held that the state was n lnger required t shw than an HGN test satisfied the Frye standard befre intrducing the results f the test int evidence. Absent prf by the defense that the HGN test was unsund, the State nly had t shw that the fficer wh gave the test was trained in the prcedure and that the test was prperly administered. The Peple f the State f Illinis v. Linda Basler, 740 N.E.2d 1 (Ill. 2000), 2000 Ill. LEXIS 1698 (Ill. 2000). (Plurality Opinin) Accrding t Furth Circuit, a Frye hearing must be held fr HGN t be admitted. Peple v. Herring, 762 N.E.2d 1186.

55 II. Plice Officer Testimny Needed t Admit HGN Test Result A prper fundatin shuld cnsist f describing the fficer's educatin and experience in administering the test and shwing that the prcedure was prperly administered. Buening, 592 N.E.2d at III. Purpse and Limits f HGN HGN test results may be used t establish prbable cause in a criminal hearing. Peple v. Furness, 526 N.E.2d 947, 949 (Ill. App. Ct. 1988). HGN test results admissible t shw prbable cause in a civil hearing. Peple v. Hd, 638 N.E.2d 264, 274 (Ill. App. Ct. 1994). HGN test results may be used t prve that the defendant is under the influence f alchl. Buening, 592 N.E.2d at Indiana I. Evidentiary Admissibility Results f prperly administered HGN test are admissible t shw impairment which may be caused by alchl and, when accmpanied by ther evidence, will be sufficient t establish prbable cause t believe a persn may be intxicated. Cper v. Indiana, 751 N.E.2d 900, 903 (Ind. Ct. App. Feb. 2002) II. Plice Officer Testimny Needed t Admit HGN Test Result The prper fundatin fr admitting HGN evidence shuld cnsist f describing the fficer s educatin and experience in administering the test and shwing that the prcedure was prperly administered. Cper, 751 N.E.2d at 903. The questin f whether a trained fficer might express an pinin that defendant was intxicated based upn the results f field sbriety tests was nt befre the curt, and thus, the curt expressed n pinin cncerning the admissibility f such testimny. Cper, 751 N.E. 2d at 902, n. 1. III. Purpse and Limits f HGN HGN test results, when accmpanied by ther evidence, will be sufficient t establish prbable cause that the persn may be intxicated. Cper, 751 N.E.2d at 903.

56 Iwa I. Evidentiary Admissibility HGN admissible as a field test under the Iwa Rules f Evidence. [T]estimny by a prperly trained plice fficer with respect t the administratin and results f the hrizntal gaze nystagmus test are admissible withut need fr further scientific evidence. State v. Murphy, 451 N.W.2d 154, 158 (Iwa 1990). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer may testify abut HGN test results under Rule 702 if the fficer is prperly trained t administer the test and bjectively recrds the results. Murphy, 451 N.W.2d at 158. III. Purpse and Limits f HGN HGN test results may be used as an indicatr f intxicatin. Murphy, 451 N.W.2d at 158. Kansas I. Evidentiary Admissibility HGN must meet Frye standard f admissibility and a Frye hearing is required at the trial level. There was n Frye hearing cnducted and the appellate curt refused t make a determinatin based n the recrd it had. State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992). HGN test has nt achieved general acceptance within the relevant scientific cmmunity and its exclusin was apprpriate. State v. Chastain, 960 P.2d 756 (Kan. 1998). II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt did nt address this issue. III. Purpse and Limits f HGN The Curt did nt address this issue. Kentucky I. Evidentiary Admissibility HGN test results admitted due t defendant s failure t bject. Cmmnwealth v. Rhdes, 949 S.W.2d 621, 623 (Ky. Ct. App. 1996).

57 II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt did nt address this issue. III. Purpse and Limits f HGN The Curt did nt address this issue. Luisiana I. Evidentiary Admissibility HGN meets Frye standard f admissibility and with prper fundatin my be admitted as evidence f intxicatin. State v. Breitung, 623 S. 2d 23, 25-6 (La. Ct. App. 1993). State v. Regan, 601 S. 2d 5, 8 (La. Ct. App. 1992). State v. Armstrng, 561 S. 2d 883, 887 (La. Ct. App. 1990). The standard f admissibility fr scientific evidence is currently the Luisiana Rules f Evidence. State v. Fret, 628 S. 2d 1116 (La. 1993). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer may testify as t training in HGN prcedure, certificatin in the administratin f HGN test and that the HGN test was prperly administered. Armstrng, 561 S. 2d at 887. III. Purpse and Limits f HGN The HGN test may be used by the fficer t determine whether r nt he [needs] t g any further and prceed with ther field tests. Breitung, 623 S. 2d at 25. HGN test results may be admitted as evidence f intxicatin. Armstrng, 561 S. 2d at 887. Maine I. Evidentiary Admissibility Because the HGN test relies n greater scientific principles than ther field sbriety tests, the reliability f the test must first be established. Either Daubert r Frye standard must be met. State v. Taylr, 694 A.2d 907, 912 (Me. 1997).

58 The Maine Supreme Curt tk judicial ntice f the reliability f the HGN test t detect impaired drivers. Taylr, 694 A.2d at 910. II. Plice Officer Testimny Needed t Admit HGN Test Result A prper fundatin shall cnsist f evidence that the fficer r administratr f the HGN test is trained in the prcedure and the [HGN] test was prperly administered. Taylr, 694 A.2d at 912. III. Purpse and Limits f HGN HGN test results may nly be used as evidence f prbable cause t arrest withut a warrant r as circumstantial evidence f intxicatin. The HGN test may nt be used by an fficer t quantify a particular bld alchl level in an individual case. Taylr, 694 A.2d at 912. Maryland I. Evidentiary Admissibility HGN is scientific and must satisfy the Frye/Reed standard f admissibility. The Curt f Appeals tk judicial ntice f HGN's reliability and its acceptance in the relevant scientific cmmunities. Schultz v. State, 664 A.2d 60, 74 (Md. Ct. Spec. App. 1995). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer must be prperly trained r certified t administer the HGN test. [NOTE: In Schultz, the plice fficer failed t articulate the training he received in HGN testing and the evidence was excluded.] Schultz, 664 A.2d at 77. III. Purpse and Limits f HGN HGN testing may nt be used t establish a specific bld alchl level. Wilsn v. State, 723 A.2d 494 (Md. Ct. Spec. App. 1999). Massachusetts I. Evidentiary Admissibility HGN is scientific and is admissible n a shwing f either general acceptance in the scientific cmmunity r reliability f the scientific thery. See Cmmnwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994). HGN test results are inadmissible until the Cmmnwealth intrduces expert testimny t establish that the HGN test satisfies ne f these tw standards. Cmmnwealth v. Sands, 675 N.E.2d 370, 373 (Mass. 1997).

59 II. Plice Officer Testimny Needed t Admit HGN Test Result [T]here must be a determinatin as t the qualificatin f the individual administering the HGN test and the apprpriate prcedure t be fllwed. In this case there was n testimny as t these facts, thus denying the defendant the pprtunity t challenge the fficer s qualificatins and administratin f the test. Sands, 675 N.E.2d at 373. III. Purpse and Limits f HGN The Curt did nt address this issue. Michigan I. Evidentiary Admissibility Curt fund that HGN test is scientific evidence and is admissible under the Frye standard f admissibility. State v. Berger, 551 N.W.2d 421, 424 (Mich. Ct. App. 1996). II. Plice Officer Testimny Needed t Admit HGN Test Result Only fundatin necessary fr the intrductin f HGN test results is evidence that the plice fficer prperly perfrmed the test and that the fficer administering the test was qualified t perfrm it. Berger, 551 N.W.2d at 424. III. Purpse and Limits f HGN HGN test results are admissible t indicate the presence f alchl. Berger, 551 N.W.2d at 424 n.1. Minnesta I. Evidentiary Admissibility Curt fund that HGN meets the Frye standard f admissibility. State v. Klawitter, 518 N.W.2d 577, 585 (Minn. 1994). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficers must testify abut their training in and experience with the HGN test. See generally Klawitter, 518 N.W.2d at

60 III. Purpse and Limits f HGN HGN admissible as evidence f impairment as part f a Drug Evaluatin Examinatin in the prsecutin f a persn charged with driving while under the influence f drugs. See generally Klawitter, 518 N.W.2d at 585. Mississippi I. Evidentiary Admissibility HGN is a scientific test. Hwever, it is nt generally accepted within the relevant scientific cmmunity and is inadmissible at trial in the State f Mississippi. Yung v. City f Brkhaven, 693 S.2d 1355, (Miss. 1997). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficers cannt testify abut the crrelatin between the HGN test and precise bld alchl cntent. Yung, 693 S.2d at III. Purpse and Limits f HGN HGN test results are admissible nly t prve prbable cause t arrest. Yung, 693 S.2d at HGN test results cannt be used as scientific evidence t prve intxicatin r as a mere shwing f impairment. Yung, 693 S.2d at Missuri I. Evidentiary Admissibility Curt fund that HGN test meets the Frye standard f admissibility. State v. Hill, 865 S.W.2d 702, 704 (M. Ct. App. 1993), rev d n ther grunds, State v. Carsn, 941 S.W.2d 518, 520 (M. 1997). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer must be adequately trained and able t prperly administer the test. Hill, 865 S.W.2d at 704. See als, Duffy v. Directr f Revenue, 966 S.W. 2d 372 (M. Ct. App. 1998). HGN nt admitted at trial because the administering fficer was nt aware f ht t prperly scre the test and interpret its results. III. Purpse and Limits f HGN HGN can be admitted as evidence f intxicatin. Hill, 865 S.W.2d at 704.

61 Mntana I. Evidentiary Admissibility Curt fund that HGN is neither new nr nvel; thus, Daubert des nt apply. Curt still finds that HGN must meet the state s rules f evidence that are identical t the Federal Rules f Evidence. Hulse v. DOJ, Mtr Vehicle Div., 961 P.2d 75, 88 (Mnt. 1998). II. Plice Officer Testimny Needed t Admit HGN Test Result The curt held that befre an arresting fficer may testify as t HGN results, a prper fundatin must shw that the fficer was prperly trained t administer the HGN test and that he administered the test in accrdance with this training. Befre the fficer can testify as t the crrelatin between alchl and nystagmus, a fundatin must be established that the fficer has special training in the underlying scientific basis f the HGN test. Hulse, 961 P.2d 75 (Mnt. 1998). See Als, State v. Crawfrd, 315 Mnt. 480, 68 P.3d 848 (2003), in which the curt ruled that the fficer s credentials were sufficient t establish his expertise, alng with evidence that he was previusly qualified as an expert. They relied n Russette (2002 MT 200), stating that t establish an expert s qualificatins, the prpnent f the testimny must shw that the expert has special training r educatin and adequate knwledge n which t base an pinin. III. Purpse and Limits f HGN HGN test results admissible as evidence f impairment. State v. Clark, 762 P.2d 853, 856 (Mnt. 1988). Nebraska I. Evidentiary Admissibility HGN meets the Frye standard fr acceptance in the relevant scientific cmmunities, and when the test is given in cnjunctin with ther field sbriety tests, the results are admissible fr the limited purpse f establishing impairment that may be caused by alchl. State v. Baue, 607 N.W.2d 191 (Neb. 2000) II. Plice Officer Testimny Needed t Admit HGN Test Result A plice fficer may testify t the results f HGN testing if it is shwn that the fficer has been adequately trained in the administratin and assessment f the HGN test and has cnducted the testing and assessment in accrdance with that training. State v. Baue, 607 N.W.2d 191 (Neb. 2000)

62 III. Purpse and Limits f HGN Testimny cncerning HGN is admissible n the issue f impairment, prvided that the prsecutin claims n greater reliability r weight fr the HGN evidence than it des fr evidence f the defendant's perfrmance n any f the ther standard field sbriety tests, and prvided further that the prsecutin makes n attempt t crrelate the HGN test result with any particular bld-alchl level, range f bld-alchl levels, r level f impairment. State v. Baue, 607 N.W.2d 191 (Neb. 2000) (quting Ballard v. State, 955 P.2d 931, 940 (Alaska App. 1998)) New Hampshire I. Evidentiary Admissibility In State v. Dah (Dec. 20, 2002), the N.H. Supreme Curt ruled that the HGN test is admissible under N.H. Rule f Evidence 702 and Daubert fr the limited purpse f prviding circumstantial evidence f intxicatin. HGN test is a scientifically reliable and valid test. N.H. Supreme Curt ruled their findings binding in Dah and that curts will nt be required t establish the scientific reliability f the HGN. II. Plice Officer Testimny Needed t Admit HGN Test Result Since we have already determined that the scientific principles underlying the HGN test are reliable, a prperly trained and qualified plice fficer may intrduce the HGN test results at trial. State v. Dah, 2002 N.H. LEXIS 179. III. Purpse and Limits f HGN HGN results cannt be intrduced at trial fr the purpse f establishing a defendant s BAC level.[t]he results are nt sufficient alne t establish intxicatin. State v. Dah, Id. New Jersey I. Evidentiary Admissibility In New Jersey, the party ffering the results f a scientific prcedure int evidence must cmply with Frye and shw that the prcedure is generally accepted in the relevant scientific cmmunities. A party may prve this general acceptance via (1) testimny f knwledgeable experts[,] (2) authritative scientific literature[, r] (3) [p]ersuasive judicial decisin. Based n the testimny f Dr. Marcelline Burns and Dr. Jack Richman, the Curt fund the HGN test t be generally accepted and the results thus admissible. The Curt als nted the significant number f jurisdictins that have accepted the HGN test as admissible scientific evidence. State v. Maida, 2000 N.J. Super. LEXIS 276 (N.J. Super. Ct. Law Div. 2000).

63 *But See, State v. Driguzzi, 760 A.2d 336 (N.J. Super. 2000), which held that HGN is scientific evidence that must meet Frye Standard. Hwever, in each trial, sufficient fundatin evidence must be laid by expert testimny t assure defendants that a cnvictin fr DUI, when based in part n HGN testing, is grunded in reliable scientific data. In this case, the appellate curt reversed defendant s cnvictin because at trial n such fundatin was presented. The curt fund that because HGN testing has nt achieved general acceptance in the cmmunity, it is nt a matter f which a curt can take judicial ntice. II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt did nt address this issue. III. Purpse and Limits f HGN The Curt fund the HGN test admissible as a reliable scientific indicatr f likely intxicatin. New Mexic I. Evidentiary Admissibility HGN is a scientific test. New Mexic fllws the Daubert standard, which requires a shwing f reliability befre scientific evidence can be admitted. The curt held that a scientific expert must testify t the underlying scientific reliability f HGN and that a plice fficer cannt qualify as a scientific expert. Because the State failed t present sufficient evidence regarding the HGN test s reliability, the curt remanded the case stating it wuld be apprpriate fr the trial curt, n remand, t make the initial determinatin f whether HGN testing satisfies Daubert. In additin, the curt fund HGN t be beynd cmmn and general knwledge and declined t take judicial ntice f HGN reliability. State v. Trres, 976 P.2d 20 (N.M. 1999). State v. Laswrth, 42 P.3d 844 (Ct. App. N.M. 2001), cert. denied (2002). Results f HGN test were inadmissible at trial (State v. Trres, 976 P.2d 20 (N.M. 1999). The State needed t prve that HGN was bth valid and reliable. State called Dr. Marceline Burns as a witness (reliability) but did nt call an expert in a discipline such as bilgy r medicine t explain hw the amunt f alchl a persn cnsumes crrelates with HGN (validity). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficers can qualify as nn-scientific experts based n their training and experience. Nnscientific experts may testify abut the administratin f the test and specific results f the test prvided anther scientific expert first establishes the reliability f the scientific principles underlying the test. In rder t establish the technical r specialized knwledge required t qualify as an expert in the administratin f the HGN test, there must be a shwing: (1) that the expert has the ability and training t administer the HGN test prperly, and (2) that the expert did, in fact, administer the HGN test prperly at the time and upn the persn in questin. State v. Trres, 976 P.2d 20 (N.M. 1999).

64 State v. Laswrth, 42 P.3d 844 (Ct. App. N.M. 2001), cert. denied (2002). Curt believed that state had t shw that presence f HGN (BAC abve.08) crrelates with diminishment f driver s mental r physical driving skills (which it failed t d) & a crrelatin between presence f HGN and BAC abve r belw.08 (which it did thrugh testimny f Dr. Burns). Curt did nt preclude use f results f HGN t establish prbable cause fr arrest r t establish grunds fr administering a chemical BAC test. III. Purpse and Limits f HGN The Curt did nt address this issue. New Yrk I. Evidentiary Admissibility Prue hlds that HGN test results are admissible under Frye standard f general acceptance. Peple v. Prue, Indictment N. I , Franklin Cunty Curt (Nvember 2001). In Gallup, the curt said that it was nly necessary t cnduct a fundatinal inquiry int the techniques and the tester s qualificatins fr admissibility. Peple v. Gallup, Memrandum and rder #13094, 302 A.D.2d 681 (3 rd Dept)( 2003). The Curt allwed the intrductin f HGN and the results because it was prperly administered and the burden f establishing that HGN is a reliable indicatr f intxicatin is generally accepted in the relevant scientific cmmunity was satisfied. Peple v. William Miley, NYLJ 12/6/02 p.30 cl. 6 (Nassau C. Ct 2002). II. Plice Officer Testimny Needed t Admit HGN Test Result The Peple must lay a prper evidentiary fundatin in rder fr HGN results t be admissible at trial. III. Purpse and Limits f HGN The Curt held that HGN is generally accepted in the relevant scientific cmmunity as a reliable indicatr f intxicatin. Nrth Carlina I. Evidentiary Admissibility HGN is a scientific test. It des nt measure behavir a lay persn wuld cmmnly assciate with intxicatin but rather represents specialized knwledge that must be presented t the jury by a qualified expert. As a result, until there is sufficient scientifically reliable evidence as t the crrelatin between intxicatin and nystagmus, it is imprper t permit a lay persn t testify as t the meaning f HGN test results. State v. Helms, 504 S.E.2d 293 (N.C. 1998).

65 II. Plice Officer Testimny Needed t Admit HGN Test Result Testimny f ne plice fficer, whse training cnsisted f a frty hur training class dealing with the HGN test, was inadequate fundatin fr admissin f HGN test results. Helms, 504 S.E.2d 293 (N.C. 1998). III. Purpse and Limits f HGN HGN test results are evidence f impairment. Helms, 504 S.E.2d 293 (N.C. 1998). Nrth Dakta I. Evidentiary Admissibility Curt fund that HGN test is admissible as a standard field sbriety test. City f Farg v. McLaughin, 512 N.W.2d 700, 706 (N.D. 1994). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer must testify as t training and experience and that the test was prperly administered. City f Farg, 512 N.W.2d at 708. III. Purpse and Limits f HGN... HGN test results admissible nly as circumstantial evidence f intxicatin, and the fficer may nt attempt t quantify a specific BAC based upn the HGN test. City f Farg, 512 N.W.2d at 708. Ohi I. Evidentiary Admissibility HGN test is bjective in nature and des nt require an expert interpretatin. State v. Nagel, 506 N.E.2d 285, 286 (Ohi Ct. App. 1986). Curt determined that HGN was a reliable indicatr f intxicatin withut specifically ruling n whether HGN meets Frye r sme ther standard f admissibility. State v. Bressn, 554 N.E.2d 1330, 1334 (Ohi 1990). Curt held that SFSTs, including HGN, must be administered in strict cmpliance with NHTSA s directives in rder fr the test results t be admissible. State v. Hman, 732 N.E.2d 952 (Ohi 2000). Hwever, the Ohi Supreme Curt ruled that the Hman decisin des nt preclude fficers frm testifying t bservatins even if SFSTs are barred. Ohi v. Schmitt, 101 Ohi St. 3d 79, 2004.

66 II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer need nly testify t training in HGN prcedure, knwledge f the test and ability t interpret results. Bressn, 554 N.E.2d at III. Purpse and Limits f HGN HGN can be used t establish prbable cause t arrest and as substantive evidence f a defendant's guilt r inncence in a trial fr DUI, but nt t determine defendant's BAC. Bressn, 554 N.E.2d at Oklahma I. Evidentiary Admissibility HGN test results excluded because state failed t lay adequate fundatin regarding HGN's scientific admissibility under the Frye standard f admissibility. Plice fficer's testimny alne was insufficient. Yell v. State, 856 P.2d 996, (Okla. Crim. App. 1993). The Daubert ratinale replaces the Frye standard as the admissibility standard fr scientific evidence. Taylr v. State, 889 P.2d 319, (Okla. Crim. App. 1995). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer testified t training n hw t administer HGN test and hw the test was administered in this case. Officer als testified as t his training in analyzing HGN test results. Yell, 856 P.2d at 997. III. Purpse and Limits f HGN If HGN testing was fund t satisfy the Frye standard f admissibility, HGN test results wuld be cnsidered in the same manner as ther field sbriety test results. HGN test results are inadmissible as scientific evidence creating a presumptin f intxicatin. Yell, 856 P.2d at 997. Oregn I. Evidentiary Admissibility HGN test results are admissible under the Oregn Rules f Evidence. HGN test results are scientific in nature, are relevant in a DUI trial, and are nt unfairly prejudicial t the defendant. State v. O'Key, 899 P.2d 663, 687 (Or. 1995).

67 II. Plice Officer Testimny Needed t Admit HGN Test Result Admissibility is subject t a fundatinal shwing that the fficer wh administered the test was prperly qualified, that the test was administered prperly, and that the test results were recrded accurately. O'Key, 899 P.2d at 670. III. Purpse and Limits f HGN HGN test results are admissible t establish that a persn was under the influence f intxicating liqur, but is nt admissible t establish a persn's BAC. O'Key, 899 P.2d at Officer may nt testify that, based n HGN test results, the defendant s BAC was ver.10. State v. Fisken, 909 P.2d 206, 207 (Or. Ct. App. 1996). Pennsylvania I. Evidentiary Admissibility The state laid an inadequate fundatin fr the admissibility f HGN under the Frye/Tpa standard. Cmmnwealth v. Mre, 635 A.2d 625, 629 (Pa. Super. Ct. 1993). Cmmnwealth v. Apll, 603 A.2d 1023, 1028 (Pa. Super. Ct. 1992). Cmmnwealth v. Miller, 532 A.2d 1186, (Pa. Super. Ct. 1987). Testimny f plice fficer is insufficient t establish scientific reliability f HGN test. Mre, 635 A.2d at 692. Miller, 532 A.2d at Testimny f behaviral ptmetrist did nt establish general acceptance f HGN test. Apll, 603 A.2d at II. Plice Officer Testimny Needed t Admit HGN Test Result Cunty detective certified as HGN instructr. Curt did nt cmment n whether this wuld be enugh fundatin t allw the detective t testify abut HGN test results. Mre, 635 A.2d 629. Plice fficer had ne-day curse n HGN. Curt did nt cmment n whether this wuld be enugh fundatin t allw the fficer t testify abut HGN test results. Miller, 603 A.2d at III. Purpse and Limits f HGN Nt addressed by curt.

68 Suth Carlina I. Evidentiary Admissibility HGN admissible in cnjunctin with ther field sbriety tests. By implicatin, HGN is nt regarded as a scientific test. State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer given twenty hurs f HGN training. Sullivan, 426 S.E.2d at 769. III. Purpse and Limits f HGN HGN test results admissible t elicit bjective manifestatins f sberness r insbriety... [E]vidence frm HGN tests is nt cnclusive prf f DUI. A psitive HGN test result is t be regarded as merely circumstantial evidence f DUI. Furthermre, HGN test shall nt cnstitute evidence t establish a specific degree f bld alchl cntent. Sullivan, 426 S.E.2d at 769. Suth Dakta I. Evidentiary Admissibility If it can be shwn that a hrizntal gaze nystagmus test was prperly administered by a trained fficer, such evidence shuld be admitted fr a jury t cnsider at trial alng with evidence f the ther accepted field sbriety tests administered in Suth Dakta. STATE v. HULLINGER, 2002 SD 83; 649 N.W.2d 253 (S.D.S.Ct. 2002); 2002 S.D. LEXIS 99 II. Plice Officer Testimny Needed t Admit HGN Test Result Officer may testify if prperly trained and test prperly administered. At the pretrial hearing, the State presented three witnesses: 1) Mnte Farnswrth, training directr fr the Office f Highway Safety at the Divisin f Criminal Investigatin Law Enfrcement Training Academy; 2) Deputy Ludwig; and 3) Dr. Larry Menning, ptmetrist and expert witness. Suth Dakta fllws a Daubert standard in use f expert witnesses. III. Purpse and Limits f HGN The Curt did nt address this issue. Tennessee I. Evidentiary Admissibility HGN is a scientific test. T be admissible at trial, such evidence must satisfy the requirements f Tenn. Rules f Evidence 702 and 703. State prvided an inadequate amunt f evidence t allw the curt t cnclude that HGN evidence meets this standard. State v. Murphy, 953 S.W.2d 200 (Tenn. 1997).

69 II. Plice Officer Testimny Needed t Admit HGN Test Result HGN must be ffered thrugh an expert witness. T qualify as an expert, a plice fficer must establish that he is qualified by his knwledge, skill, experience, training r educatin t prvide expert testimny t substantially assist the trier f fact t understand the evidence r determine a fact in issue. Althugh the curt did nt rule ut the pssibility that the fficer can be cnsidered an expert, the curt set a high level f prf. In this case, the curt felt that althugh the fficer had attended law enfrcement training in DUI ffender apprehensin and the HGN test, this training was nt enugh t establish him as an expert. State v. Grindstaff, 1998 Tenn. Crim. App. Lexis 339 (March 23, 1998). III. Purpse and Limits f HGN The Curt did nt address this issue. Texas I. Evidentiary Admissibility HGN admissible under the Texas Rules f Evidence. Emersn v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). II. Plice Officer Testimny Needed t Admit HGN Test Result A plice fficer must qualify as an expert n the HGN test, specifically cncerning its administratin and technique, befre testifying abut a defendant s perfrmance n the test. Prf that the plice fficer is certified in the administratin f the HGN test by the Texas Cmmissin n Law Enfrcement Officer Standards and Educatin satisfies this requirement. Emersn, 880 S.W.2d at 769. III. Purpse and Limits f HGN HGN admissible t prve intxicatin, but nt accurate enugh t prve precise BAC. Emersn, 880 S.W.2d at 769. Utah I. Evidentiary Admissibility HGN test admissible as ther field sbriety test. Curt reserved judgment as t the scientific reliability f HGN. Salt Lake City v. Garcia, 912 P.2d 997, 1001 (Utah Ct. App. 1996). II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer need nly testify as t training, experience and bservatins when HGN admitted as a field test. Garcia, 912 P.2d at 1001.

70 III. Purpse and Limits f HGN Admissible as any ther field sbriety test. Garcia, 912 P.2d at Washingtn I. Evidentiary Admissibility It is undisputed in the relevant scientific cmmunities that an intxicated persn will exhibit nystagmus. HGN testing is nt nvel and has been used as a field sbriety test fr decades and is administered the same whether investigating alchl impairment r drug impairment. Thus, the use f HGN in drug and alchl impaired driving cases is acceptable. State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (Wash. 2000). [T]he Frye standard applies t the admissin f evidence based n HGN testing, unless... the State is able t prve that it rests n scientific principles and uses techniques which are nt nvel and are readily understandable by rdinary persns. The state failed t present any evidence t this fact and the curt declined t take judicial ntice f HGN. State v. Cissne, 865 P.2d 564, 569 (Wash. Ct. App. 1994). II. Plice Officer Testimny Needed t Admit HGN Test Result The Curt did nt address this issue. III. Purpse and Limits f HGN The Curt did nt address this issue. West Virginia I. Evidentiary Admissibility The state did nt present evidence fr the curt t reach the questin f whether the HGN test is sufficiently reliable t be admissible. Hwever, the curt did cnclude that even if the reliability f the HGN test is demnstrated, an expert s testimny as t a driver s perfrmance n the test is admissibile nly as evidence that the driver was under the influence. Estimates f bld alchl cntent based n the HGN test are inadmissible. State v. Barker, 366 S.E.2d 642, 646 (W. Va. 1988). The West Virginia Supreme Curt mdified State v. Barker t the extent that the Daubert analysis f FRE 702 is applicable t the questin f admissibility f expert testimny under the West Virginia Rules f Evidence Rule 702. Wilt v. Buracker, 443 S.E. 2d 196 (W.Va. 1993).

71 II. Plice Officer Testimny Needed t Admit HGN Test Result Plice fficer's training cnsisted f a ne-day, eight-hur training sessin cnducted by the state plice. Officer testified t giving the HGN test abut 100 times. Curt did nt reach questin f whether this wuld be enugh t allw the fficer t testify abut the HGN test results. Barker, 366 S.E.2d at 644. III. Purpse and Limits f HGN HGN test results admissible t shw prbable cause in a civil hearing. Muscatell v. Cline, 474 S.E.2d 518, 525 (W. Va. 1996). Bley v. Cline, 456 S.E.2d 38, 41 (W. Va. 1995). [I]f the reliability f the HGN test is demnstrated, an expert's testimny as t a driver's perfrmance n the test is admissible nly as evidence that the driver was under the influence, the same as ther field sbriety tests. Barker, 366 S.E.2d at 646. Wiscnsin I. Evidentiary Admissibility The curt held that the HGN test results are admissible in this case because the test results were nt the nly evidence. The results were accmpanied by the expert testimny f the fficer. State v. Zivcic, 598 N.W.2d 565 (Wisc. Ct. App. 1999). See als, State v. Maxn, 633 N.W. 2d 278 (Wisc. Ct. App. 2001) II. Plice Officer Testimny Needed t Admit HGN Test Result A plice fficer wh is prperly trained t administer and evaluate the HGN test can testify t the test results. A secnd expert witness is nt needed. State v. Zivcic, 598 N.W.2d 565 (Wisc. Ct. App. 1999). III. Purpse and Limits f HGN The Curt did nt address this issue. Wyming I. Evidentiary Admissibility SFSTs, including HGN, are admissible t establish prbable cause when administered in substantial cmpliance with NHTSA guidelines. Strict cmpliance is nt necessary. The curt tk judicial ntice f the number f states that allw HGN evidence n the basis f the fficer s training, experience and ability t administer the test. Smith v. Wyming, 2000 Wy. LEXIS 202 (Wy. Octber 4, 2000).

72 II. Plice Officer Testimny Needed t Admit HGN Test Result A plice fficer that is prperly trained t administer and evaluate the HGN test can testify t HGN results. Smith v. Wyming, 2000 Wy. LEXIS 202 (Wy. Octber 4, 2000). III. Purpse and Limits f HGN HGN test results are admissible t shw prbable cause. Smith v. Wyming, 2000 Wy. LEXIS 202 (Wy. Octber 4, 2000). United States I. Evidentiary Admissibility U.S. V. Eric D. Hrn, 185 F. Supp. 2d 530 (D. Maryland 2002) In this case, U.S. District Curt in Maryland made the first applicatin f the newly revised FRE 702 t the HGN and ther SFSTs. Results f prperly administered WAT, OLS and HGN, SFSTs may be admitted int evidence in a DWI/DUI case nly as circumstantial evidence f intxicatin r impairment but nt as direct evidence f specific BAC. Officer must first establish his qualificatins t administer the test - training and experience, nt pinin abut accuracy rate f test r causal cnnectin between alchl cnsumptin and exaggerated HGN. Gvernment may prve causal cnnectin by: judicial ntice, expert testimny, r learned treatise. Hrn may prve ther causes by: judicial ntice, crss-examinatin f state s expert, defense expert, r learned treatise. U.S. V. Daras, 1998 WL (4 th Cir. 1998)(Unpublished pinin). WAT and OLS were nt scientific s n expert needed. Curt wuld have applied Daubert t HGN test, but there was n need t because breathalyzer, WAT and OLS were sufficient. HGN test was admitted as part f series f field tests. Its admissin was nt challenged n appeal. U.S. v. Van Griffin, 874 F.2d 634 (9th Cir. 1989). II. Plice Officer Testimny Needed t Admit HGN Test Result Fundatin fr HGN must address validity & reliability under FRE 702. In Hrn, prsecutin had a medical dctr and a plice fficer, but defense used behaviral psychlgist t attack HGN literature f Dr. Marceline Burns and thers.

73 III. Purpse and Limits f HGN SFSTs may be admitted int evidence in a DWI/DUI case nly as circumstantial evidence f intxicatin r impairment but nt as direct evidence f specific BAC. Hrn. Prperly qualified, Officer may give pinin f intxicatin r impairment by alchl. Hrn. Nte: The fllwing states were nt listed abve due t a lack f case law discussin n HGN: Clrad Nevada Rhde Island Vermnt( HGN was mentined in the cntext f a refusal being admissible as evidence f prbative guilt. State v. Bluin, 168 Vt. 119 (Vt. 1998) Virginia Last Update: Jan Fr future updates, please cntact: Natinal Traffic Law Center, 99 Canal Center Plaza, Suite 510, Alexandria, Virginia, Phne:(703) , Fax: , trafficlaw@ndaa-apri.rg Or Visit there website

74 ATTACHMENT B HORIZONTAL GAZE NYSTAGMUS STATE CHART SUMMARY (Thse states in bld have cases directly addressing the admissibility f HGN evidence. Under Sectin II, a blank bx means that a curt has nt ruled n the issue.) I. Evidentiary admissibility. A. Nt a scientific test - admissible as a field sbriety test. AL AK AZ AR CA CO CT DE DC FL GA B A scientific test - scientific standard nt applicable. X X 1 C. A scientific test - meets scientific standard. X X X X X D. A scientific test - des nt meet scientific standard. E. A scientific test - inadequate evidence presented t determine if HGN meets scientific standard. X X F. Scientific standard state fllws: 1. Frye (general acceptance) X X X X 2. Daubert/FRE (reliability) X X 3. Other X II. Plice fficer may testify abut: A. HGN's scientific reliability at admissibility hearing. B. Crrelatin between HGN and alchl at trial. C. HGN test results based n training & experience in administratin f test. YES YES YES YES YES YES YES III. Purpse and limits f HGN test results. A. Prbable cause determinatin in criminal hearing. X X X X B. Prbable cause determinatin in civil hearing. X C. Evidence f impairment. X X X X X X D. Quantify BAC. E. Same evidentiary weight as ther field tests. X 1

75 HI ID IL IN IA KS KY LA ME MD MA I. Evidentiary admissibility. A. Nt a scientific test - admissible as a field sbriety test. X B A scientific test - scientific standard nt applicable. C. A scientific test - meets scientific standard. X X X X X X D. A scientific test - des nt meet scientific standard. E. A scientific test - inadequate evidence presented t determine if HGN meets scientific standard. X X F. Scientific standard state fllws: 1. Frye (general acceptance) X X X 2. Daubert/FRE (reliability) X X X X X X 3. Other II. Plice fficer may testify abut: A. HGN's scientific reliability at admissibility hearing. B. Crrelatin between HGN and alchl at trial. NO C. HGN test results based n training & experience in administratin f test. YES YES YES YES YES YES YES YES YES III. Purpse and limits f HGN test results. A. Prbable cause determinatin in criminal hearing. X X X X X X B. Prbable cause determinatin in civil hearing. X C. Evidence f impairment. X X X X X X D. Quantify BAC. E. Same evidentiary weight as ther field tests. X X 2

76 MI MN MS MO MT NE NV NH NJ NM NY I. Evidentiary admissibility. A. Nt a scientific test - admissible as a field sbriety test. B A scientific test - scientific standard nt applicable. X X C. A scientific test - meets scientific standard. X X X X D. A scientific test - des nt meet scientific standard. X X E. A scientific test - inadequate evidence presented t determine if HGN meets scientific standard. X X F. Scientific standard state fllws: 1. Frye (general acceptance) X X X X X X X 2. Daubert/FRE (reliability) X X 3. Other II. Plice fficer may testify abut: A. HGN's scientific reliability at admissibility hearing. NO NO B. Crrelatin between HGN and alchl at trial. NO C. HGN test results based n training & experience in administratin f test. YES YES YES YES YES III. Purpse and limits f HGN test results. A. Prbable cause determinatin in criminal hearing. X X B. Prbable cause determinatin in civil hearing. C. Evidence f impairment. X X X X D. Quantify BAC. E. Same evidentiary weight as ther field tests. 3

77 NC ND OH OK OR PA RI SC SD TN TX I. Evidentiary admissibility. A. Nt a scientific test - admissible as a field sbriety test. X X X X B A scientific test - scientific standard nt applicable. C. A scientific test - meets scientific standard. X X D. A scientific test - des nt meet scientific standard. E. A scientific test - inadequate evidence presented t determine if HGN meets scientific standard. X X X X F. Scientific standard state fllws: 1. Frye (general acceptance) X 2. Daubert/FRE (reliability) X X X X 3. Other X II. Plice fficer may testify abut: A. HGN's scientific reliability at admissibility hearing. NO NO B. Crrelatin between HGN and alchl at trial. YES C. HGN test results based n training & experience in administratin f test. YES YES YES YES YES YES YES YES III. Purpse and limits f HGN test results. A. Prbable cause determinatin in criminal hearing. X X B. Prbable cause determinatin in civil hearing. C. Evidence f impairment. X X X X X X D. Quantify BAC. E. Same evidentiary weight as ther field tests. X X X X 4

78 UT VT VA WA WV WI WY US TOTALS I. Evidentiary admissibility. A. Nt a scientific test - admissible as a field sbriety test. X X X 8 B A scientific test - scientific standard nt applicable. 4 C. A scientific test - meets scientific standard. 17 D. A scientific test - des nt meet scientific standard. X 3 E. A scientific test - inadequate evidence presented t determine if HGN meets scientific standard. X X 12 F. Scientific standard state fllws: 1. Frye (general acceptance) X Daubert/FRE (reliability) X X Other 2 II. Plice fficer may testify abut: A. HGN's scientific reliability at admissibility hearing. NO B. Crrelatin between HGN and alchl at trial. C. HGN test results based n training & experience in administratin f test. YES YES YES III. Purpse and limits f HGN test results. A. Prbable cause determinatin in criminal hearing. X 15 B. Prbable cause determinatin in civil hearing. X 3 C. Evidence f impairment. X X 24 D. Quantify BAC. E. Same evidentiary weight as ther field tests. X X 9 Last update 11/03 Fr future updates, please cntact the Natinal Traffic Law Center, 99 Canal Center Plaza, Suite 510, Alexandria, Virginia, Phne:(703) , Fax:

79 0 The 3 rd District fund HGN t be a quasi-scientific test. The curt held HGN was established and generally accepted in the relevant scientific cmmunity and, therefre, it did nt have t meet the Frye standard. Williams v. State, 710 S.2d 24 (Fla. 3 rd Dist. Ct. 1998). 6

80 SESSION IV OVERVIEW OF DETECTION NOTE TAKING AND TESTIMONY HS 178 R2/06

81 SESSION IV OVERVIEW OF DETECTION, NOTE TAKING AND TESTIMONY Upn successfully cmpleting this sessin, the participant will be able t: Describe the three phases f detectin. Describe the tasks and key decisin f each phase. Discuss the uses f a standard nte taking guide. Discuss guidelines fr effective testimny. CONTENT SEGMENTS LEARNING ACTIVITIES A. Three Phases f Detectin Instructr-Led Presentatins B. DWI Investigatin Field Ntes Reading Assignments C. Curtrm Testimny HS 178 R2/06

82 DWI DETECTION Detectin is bth the mst difficult task in the DWI enfrcement effrt, and the mst imprtant. If fficers fail t detect DWI vilatrs, the DWI cuntermeasures prgram ultimately will fail. If fficers d nt detect and arrest DWI vilatrs, the prsecutrs can nt prsecute them, the curts and driver licensing fficials can nt impse sanctins n them, and treatment and rehabilitatin prgrams will g unused. The term DWI detectin has been used in many different ways. Cnsequently it des nt mean the same thing t all plice fficers. Fr the purpses f this training, DWI detectin is defined as: THE ENTIRE PROCESS OF IDENTIFYING AND GATHERING EVIDENCE TO DETERMINE WHETHER OR NOT A SUSPECT SHOULD BE ARRESTED FOR A DWI VIOLATION. The detectin prcess begins when the plice fficer first suspects that a DWI vilatin may be ccurring and ends when the fficer decides that there is r there is nt sufficient prbable cause t arrest the suspect fr DWI. Yur attentin may be called t a particular vehicle r individual fr a variety f reasns. The precipitating event may be a lud nise; an bvius equipment r mving vilatin; behavir that is unusual, but nt necessarily illegal; r almst anything else. Initial detectin may carry with it an immediate, suspicin that the driver is impaired; r nly a slight suspicin; r even n suspicin at all at that time. In any case, it sets in mtin a prcess wherein yu fcus n a particular individual and have the pprtunity t bserve that individual and t accumulate additinal evidence. The detectin prcess ends when yu decide either t arrest r nt t arrest the individual fr DWI. That decisin, ideally, is based n all f the evidence that has cme t light since yur attentin first was drawn t the suspect. Effective DWI enfrcers d nt leap t the arrest/n arrest decisin. Rather, they prceed carefully thrugh a series f intermediate steps, each f which helps t identify the cllective evidence. HS 178 R2/06 IV-1

83 DETECTION PHASES The typical DWI cntact invlves three separate and distinct phases: Phase One: Vehicle in mtin Phase Tw: Persnal cntact Phase Three: Pre-arrest screening (See Exhibit 4-1.) EXHIBIT 4-1 DWI DETECTION PHASES 1. Vehicle In Mtin 2. Pers nal C nta c t 3. Pre-Arrest Screening In Phase One, yu usually bserve the driver perating the vehicle. In Phase Tw, after yu have stpped the vehicle, there usually is an pprtunity t bserve and speak with the driver face-t-face. In Phase Three, yu usually have an pprtunity t administer sme frmal structured field sbriety tests t the driver t evaluate the degree f impairment. Yu may administer a preliminary breath test in additin t field sbriety tests t verify that alchl is the cause f the impairment. The DWI detectin prcess des nt always include all three phases. Smetimes there are DWI detectin cntacts in which Phase One is absent; that is, cases in which yu have n pprtunity t bserve the vehicle in mtin. This may ccur at the scene f a crash t which yu have been called, at a radblck, r when yu have respnded t a request fr mtrist assistance. Smetimes there are DWI cntacts in which Phase Three never ccurs. There are cases in which yu wuld nt administer frmal tests t the driver. These may ccur when the driver is impaired r badly injured, r refuses t submit t tests. HS 178 R2/06 IV-2

84 MAJOR TASKS AND DECISIONS Each detectin phase usually invlves tw majr tasks and ne majr decisin (See Exhibit 4-2.) HS 178 R2/06 IV-3

85 In Phase One: Yur first task is t bserve the vehicle in peratin. Based n this bservatin, yu must decide whether there is sufficient cause t cmmand the driver t stp. Yur secnd task is t bserve the stpping sequence. In Phase Tw: Yur first task is t bserve and interview the driver face-t-face. Based n this bservatin, yu must decide whether there is sufficient cause t instruct the driver t step frm the vehicle fr further investigatin. Yur secnd task is t bserve the driver's exit and walk frm the vehicle. In Phase Three: Yur first task is t administer structured, frmal psychphysical tests. Based n these tests, yu must decide whether there is sufficient prbable cause t arrest the driver fr DWI. Yur secnd task is then t arrange fr (r administer) a Preliminary Breath Test. Each f the majr decisins can have any ne f three different utcmes: 1. Yes - D it Nw 2. Wait - Lk fr Additinal Evidence 3. N - Dn't D It Cnsider the fllwing examples. 1. Yes - D It Nw Phase One: Phase Tw: Phase Three: Yes, there are reasnable grunds t stp the vehicle. Yes, there is enugh reasn t suspect impairment t justify getting the driver ut f the vehicle fr further investigatin. Yes, there is prbable cause t arrest the driver fr DWI right nw. 2. Wait - Lk fr Additinal Evidence HS 178 R2/06 Phase One: Phase Tw: Phase Three: Dn't stp the vehicle yet; keep fllwing and bserving it a bit lnger. Dn't get the driver ut f the car yet; keep talking t and bserving the driver a bit lnger. (This ptin may be limited if the fficer's persnal safety is at risk.) Dn't arrest the driver yet; administer anther field sbriety test befre deciding. IV-4

86 3. Dn't D It: Phase One: Phase Tw: Phase Three: N, there are n grunds fr stpping that vehicle. N, there isn't enugh evidence f DWI t justify administering field sbriety tests. N, there is nt sufficient prbable cause t believe this driver has cmmitted DWI. OFFICER RESPONSIBILITY In each phase f detectin, yu must determine whether there is sufficient evidence t establish "reasnable suspicin" necessary t prceed t the next step in the detectin prcess. It is always yur duty t carry ut whatever tasks are apprpriate, t make sure that all relevant evidence f DWI is brught t light. (See Exhibit 4-3). EXHIBIT 4-3 DWI DETECTION Answers t questins like these can aid yu in DWI detectin. Phase One: Phase Tw: Phase Three: What is the vehicle ding? D I have grunds t stp the vehicle? Hw des the driver respnd t my signal t stp? Hw des the driver handle the vehicle during the stpping sequence? When I apprach the vehicle, what d I see? When I talk with the driver, what d I hear, see and smell? Hw des the driver respnd t my questins? Shuld I instruct the driver t exit the vehicle? Hw des the driver exit? When the driver walks tward the side f the rad, what d I see? Shuld I administer field sbriety tests t the driver? Hw des the driver perfrm thse tests? What exactly did the driver d wrng when perfrming the tests? D I have prbable cause t arrest fr DWI? Shuld I administer a preliminary breath test? What are the results f the preliminary breath test? HS 178 R2/06 IV-5

87 The mst successful DWI detectrs are thse fficers wh: knw what t lk and listen fr; have the skills t ask the right kinds f questins; chse and use the right kinds f tests; make the crrect bservatins; and are mtivated and apply their knwledge and skill whenever they cntact smene wh may be under the influence. Officers like these are likely t make mre arrests and t dcument the clear, cnvincing evidence needed t secure cnvictins. INTRODUCTION NOTE TAKING AND TESTIMONY A basic skill needed fr DWI enfrcement is the ability t graphically describe yur bservatins. Just as detectin is the prcess f cllecting evidence, descriptin largely is the prcess f cnveying evidence. Successful descriptin demands the ability t cnvey evidence clearly and cnvincingly. Yur challenge is t cmmunicate evidence t peple wh weren't there t see, hear and smell the evidence themselves. Yur tls are the wrds that make up yur written reprt and verbal testimny. Yu must cmmunicate with the supervisr, the prsecutr, the judge, the jury and even with the defense attrney. Yu are trying t "paint a wrd picture" fr thse peple, t develp a sharp mental image that allws them t "see" what yu saw; "hear" what yu heard; and "smell" what yu smelled. Officers with the knwledge, skills and mtivatin t select the mst apprpriate wrds fr bth written reprts and curtrm testimny will cmmunicate clearly and cnvincingly, making them mre successful in DWI prsecutin. (See Exhibit 4-4.) HS 178 R2/06 IV-6

88 EXHIBIT 4-4 USING CLEAR AND CONVINCING LANGUAGE Field ntes are nly as gd as the infrmatin they cntain. Reprts must be clearly written and events accurately described if the reprts are t have evidentiary value. One persistent prblem with DWI incident reprts is the use f vague language t describe cnditins, events and statements. When vague language is used, reprts prvide a cnfused picture f what happened. When clear language is used, reprts prvide an accurate picture f what happened. Clear and cnvincing field ntes prvide strng evidence in curt. Cnsider the fllwing examples. Vague Language Clear Language Made an illegal left turn Frm Main, turned left (nrth-bund) n Jeffersn n Jeffersn, which is ne way suthbund. Drve erratically Weaving frm side t side. Crssed center line twice and drve n shulder three times. Driver appeared drunk Driver's eyes bldsht; gaze fixed; hands shaking. Strng dr f alchlic beverage n driver's breath. Vehicle stpped in unusual Vehicle struck, climbed curb; stpped n fashin sidewalk. Vehicle crssed the center Vehicle drifted cmpletely int the line ppsing traffic lane. DWI INVESTIGATION FIELD NOTES One f the mst critical tasks in the DWI enfrcement prcess is the recgnitin and retentin f facts and clues that establish reasnable suspicin t stp, investigate and subsequently arrest persns suspected f driving r perating a vehicle while impaired. The evidence gathered during the detectin prcess must establish the elements f the vilatin, and must be dcumented t supprt successful prsecutin f the vilatr. This evidence is largely sensry (sight, smell, hearing) in nature, and therefre is extremely shrt-lived. HS 178 R2/06 IV-7

89 Yu must be able t recgnize and act n the facts and circumstances with which yu are cnfrnted. But yu als must be able t recall thse bservatins, and describe them clearly and cnvincingly t secure a cnvictin. Yu may be inundated with evidence f DWI, i.e., sights, sunds, smells. Yu recgnize this evidence, smetimes subcnsciusly, and n this evidence based yur decisins t stp, t investigate and ultimately t arrest. Since evidence f a DWI vilatin is shrt-lived, yu need a system and tls fr recrding field ntes at scenes f DWI investigatins. One way t imprve the effectiveness f yur handwritten field ntes is t use a structured nte taking guide. The guide makes it easy t recrd brief "ntes" n each step n the detectin prcess and ensures that vital evidence is dcumented. The field ntes prvide the infrmatin necessary fr cmpletin f required DWI reprt frms and assist yu in preparing a written accunt f the incident. The field ntes will als be useful if yu are required t prvide ral testimny, since they can be used t refresh yur memry. A mdel nte taking guide is prvided fr yur use. A brief descriptin fllws. Details are prvided in subsequent units. NOTE TAKING GUIDE Remember that yu must dcument thse actins which gave yu reasnable suspicin r prbable cause t justify further investigatin f a suspected DWI incident. Sectin I prvides space t recrd basic infrmatin describing the suspect, the vehicle, the lcatin, and the date and time the incident ccurred. Sectin II prvides space t recrd brief descriptins f the vehicle in mtin (Detectin Phase One), including initial bservatin f the vehicle in peratin, and bservatin f the stpping sequence. Sectin III prvides space t recrd brief descriptins f the persnal cntact with the suspect (Detectin Phase Tw), including bservatins f the driver. General Observatins prvides space t recrd the suspect's manner f speech, attitude, clthing, etc. Any physical evidence cllected shuld als be nted in this sectin. Sectin IV prvides space t recrd the results f all field sbriety tests that were administered, and the results f the preliminary breath test (PBT) if such a test was given. HS 178 R2/06 IV-8

90 Since this is a nte taking guide and space is limited, yu will have t develp yur wn "shrthand" system. Yur ntes shuld be as descriptive as pssible and shuld create "mental pictures" f the facts, circumstances r events being described. Yu will use these ntes t refresh yur memry, t write the arrest reprt and t testify in curt. NOTE: Field Ntes may be subpenaed as evidence in curt. It is imprtant that any "shrthand" system yu use be describable, usable, cmplete and cnsistent. COURTROOM TESTIMONY Testimnial evidence in DWI cases establishes that the accused was in fact the driver and was impaired. It is nly as gd as it is clear and cncise. Requirements: Preparatin at the scene and prir t trial. HS 178 R2/06 IV-9

91 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. DISPOSITION NO. PASSENGERS STATE INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS/DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus) HS 178 R2/06 IV-10

92 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results: HS 178 R2/06 IV-11

93 COURTROOM TESTIMONY Althugh nly a minrity f DWI cases actually cme t trial, the arresting fficer must be fully prepared t testify in curt n any case. Testimnial evidence in DWI cases usually is the nly way t establish that the accused was in fact the driver f the vehicle alleged t have been invlved in the DWI incident. Testimnial evidence als may be the primary and smetimes the nly means f establishing that the accused was impaired. Even when scientific evidence is available, supprtive testimnial evidence will be required t permit intrductin f that scientific evidence in curt. PREPARATION Testimnial evidence must be clear and cnvincing t be effective. The first requirement fr effective testimny is preparatin. Testimny preparatin begins at the time f the DWI incident. Frm the very beginning f the DWI cntact, it is yur respnsibility t: recgnize significant evidence; cmpile cmplete, accurate Field Ntes; prepare a cmplete and accurate incident reprt. Testimny preparatin cntinues prir t trial. Just befre the trial, yu shuld: review Field Ntes; review case jacket/file; mentally rganize elements f ffense, and the evidence available t prve each element; mentally rganize testimny t cnvey bservatins clearly and cnvincingly; and discuss the case with the prsecutr. IN COURT In curt, yur testimny shuld be rganized chrnlgically and shuld cver each phase f the DWI incident: initial bservatin f vehicle, the driver r bth; HS 178 R2/06 IV-12

94 reinfrcing cues, maneuvers r actins, bserved after signaling driver t stp, but befre driver's vehicle came t a cmplete stp; statements and ther evidence btained during yur initial face-t-face cntact with driver; pre-arrest screening sbriety tests administered t the driver; the arrest itself; including prcedures used t infrm suspect f arrest, admnish suspect f rights, and s n; suspect's actins and statements subsequent t the arrest; bservatin and interview f suspect subsequent t the arrest; the request fr the chemical test; including the prcedures used, admnitin f rights and requirements, and s n; the cnduct and results f the chemical test, if yu were als the testing fficer. " the interview f the suspect HS 178 R2/06 IV-13

95 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. DWI detectin is defined as 2. The three phases in a typical DWI cntact are: Phase One Phase Tw Phase Three 3. In Phase One, the fficer usually has an pprtunity t 4. Phase Three may nt ccur if 5. In Phase Tw, the fficer must decide 6. Each majr decisin can have any ne f different utcmes. These are HS 178 R2/06 IV-14

96 7. At each phase f detectin, the fficer must determine 8. Evidence f DWI is largely in nature. 9. Plice fficers need a system and tls fr recrding field ntes at scenes f DWI investigatins because DWI evidence is. 10. Testimny preparatins begins 11. List tw things the fficer shuld d t prepare testimny just befre the trial. a. b. 12. In curt, the fficer's testimny shuld be rganized 13. The cnditins and results f the Chemical test are included in the arresting fficer's testimny if HS 178 R2/06 IV-15

97 ATTACHMENT(S)

98 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

99 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results:

100 SESSION V PHASE ONE: VEHICLE IN MOTION HS 178 R2/06

101 SESSION V PHASE ONE: VEHICLE IN MOTION Upn successfully cmpleting this sessin, the participant will be able t: Identify typical cues f Detectin Phase One. Describe the bserved cues clearly and cnvincingly. CONTENT SEGMENTS LEARNING ACTIVITIES A. Overview: Tasks and Decisin Instructr-Led Presentatins B. Initial Observatins: Visual Cues Impaired Operatin Vide Presentatin C. Initial Observatins: Visual Cues Impaired Operatin (Mtrcycles) Vide Presentatin D. Recgnitin and Descriptin f Initial Cues Instructr-Led Demnstratins E. Typical Reinfrcing Cues f the Stpping Sequence Participant's Presentatins F. Recgnitin and Descriptin f Initial and Reinfrcing Cues HS 178 R2/06

102 DWI DETECTION PHASE ONE: VEHICLE IN MOTION Yur first task in Phase One: Vehicle in Mtin is t bserve the vehicle in peratin t nte any initial cues f a pssible DWI vilatin. At this pint yu must decide whether there is sufficient cause t stp the vehicle, either t cnduct further investigatin t determine if the suspect may be impaired, r fr anther traffic vilatin. Yu are nt cmmitted t arresting the suspect fr DWI based n this initial bservatin, but rather shuld cncentrate n gathering all relevant evidence that may suggest impairment. Yur secnd task during phase ne is t bserve the manner in which the suspect respnds t yur signal t stp, and t nte any additinal evidence f a DWI vilatin. The first task, bserving the vehicle in mtin, begins when yu first ntice the vehicle, driver r bth. Yur attentin may be drawn t the vehicle by such things as: a mving traffic vilatin; an equipment vilatin; an expired registratin r inspectin sticker; unusual driving actins, such as weaving within a lane r mving at slwer than nrmal speed; r "Evidence f drinking" r drugs in vehicle. If this initial bservatin disclses vehicle maneuvers r human behavirs that may be assciated with impairment, yu may develp an initial suspicin f DWI. Based upn this initial bservatin f the vehicle in mtin, yu must decide whether there is reasnable suspicin t stp the vehicle. At this pint yu have three chices: stp the vehicle; cntinue t bserve the vehicle; r disregard the vehicle. HS 178 R2/06 V-1

103 2. INITIAL OBSERVATIONS: VISUAL CUES TO DWI Drivers wh are impaired frequently exhibit certain effects r symptms f impairment. These include: slwed reactins; impaired judgment as evidenced by a willingness t take risks; impaired visin; and pr crdinatin The next page presents cmmn symptms f alchl influence. This unit fcuses n alchl impairment because research currently prvides mre infrmatin abut the effects f alchl n driving than it des abut the effects f ther drugs n driving. Remember that whether the driver is impaired, the law enfrcement detectin prcess is the same, and the ffense is still DWI. The cmmn effects f alchl n the driver's mental and physical faculties lead t predictable driving vilatins and vehicle perating characteristics. The Natinal Highway Traffic Safety Administratin (NHTSA) spnsred research t identify the mst cmmn and reliable initial indicatrs f DWI. This research identified 24 cues, each with an assciated high prbability that the driver exhibiting the cue is impaired. These cues and their assciated prbabilities are described in the fllwing Special Sectin, Initial Visual DWI Detectin Cues. HS 178 R2/06 V-2

104 They als are discussed in Visual Detectin f Driving While Intxicated, a film spnsred by NHTSA t assist law enfrcement fficers t recgnize DWI detectin cues. This film is included in the training vide. COMMON SIGNS OF ALCOHOL INFLUENCE BLOOD ALCOHOL CONCENTRATION 0.03% * * * * * * * * * * * *???? * * * * * * * * * * * *???? Slwed * * * Reactins * * * * * *??? Increased * * Risk * * Taking * *?? Impaired * Visin *? Pr Crdinatin INITIAL VISUAL DWI DETECTION CUES Fllwing are 24 cues which plice fficers may use t detect nighttime impaired drivers. The cues were develped frm a list f mre than 100 driving cues that have been fund t predict BACs f 0.08 percent r greater. Hundreds f law enfrcement fficers were invlved in three field studies invlving mre than 12,000 enfrcement stps. These cues represent the mst systematically develped methd available fr visually predicting whether a vehicle perated at night is being driven by a DWI driver r a sber driver. A pcket-sized bklet, The Visual Detectin f DWI Mtrists [DOT HS ] listing these cues is available free f charge frm: Natinal Highway Traffic Safety Administratin - Impaired Driving Divisin 400 Seventh Street, SW., Rm 5118 Washingtn, DC HS 178 R2/06 V-3

105 VISUAL CUE DESCRIPTIONS 1. PROBLEMS MAINTAINING PROPER LANE POSITION [p= ] A. Weaving - Weaving ccurs when the vehicle alternately mves tward ne side f the radway and then the ther, creating a zig-zag curse. The pattern f lateral mvement is relatively regular as ne steering crrectin is clsely fllwed by anther. B. Weaving Acrss Lane Lines - Extreme cases f weaving when the vehicle wheels crss the lane lines befre crrectin is made. C. Straddling A Lane Line - The vehicle is mving straight ahead with the center r lane marker between the left-hand and right-hand wheels. D. Swerving - A swerve is an abrupt turn away frm a generally straight curse. Swerving might ccur directly after a perid f drifting when the driver discvers the apprach f traffic in an ncming lane r discvers that the vehicle is ging ff the rad; swerving might als ccur as an abrupt turn is executed t return the vehicle t the traffic lane. In the illustratin belw, a swerve was executed t return t a lane after a perid f drifting tward ppsing traffic. E. Turning With Wide Radius - During a turn, the radius defined by the distance between the turning vehicle and the center f the turn in greater than nrmal. The vehicle may drive wide in a curve. F. Drifting - Drifting is a straight-line mvement f the vehicle at a slight angle t the radway. As the driver appraches a marker r bundary (lane marker, center line, edge f the radway), the directin f drift might change. As shwn in the illustratin, the vehicle drifts acrss the lane marker int anther lane, then the driver makes a crrectin and the vehicle drifts back acrss the lane marker. Drifting might be bserved within a single lane, acrss lanes, acrss the center line, nt the shulder, and frm lane t lane. G. Almst Striking Object r Vehicle - The bserved vehicle almst strikes a statinary bject r anther mving vehicle. Examples include: passing abnrmally clse t a sign, wall, building, r ther bject; passing abnrmally clse t anther mving vehicle; and causing anther vehicle t maneuver t avid cllisin. HS 178 R2/06 V-4

106 2. SPEED AND BRAKING PROBLEMS [p= ] A. Stpping Prblems (t far, t shrt, t jerky) - Stpping t far frm a curb r at an inapprpriate angle. Stpping t shrt r beynd limit line at an intersectin. Stpping with a jerking mtin r abruptly. B. Accelerating r Decelerating Rapidly - This cue encmpasses any acceleratin r deceleratin that is significantly mre rapid than that required by the traffic cnditins. Rapid acceleratin might be accmpanied by breaking tractin; rapid deceleratin might be accmpanied by an abrupt stp. Als a vehicle might alternately accelerate and decelerate rapidly. C. Varying Speed - Alternating between speeding up and slwing dwn. D. Slw Speed (10 m.p.h. + Under Limit) - The bserved vehicle is being driving at a speed that is mre than 10 MPH belw the speed limit. 3. VIGILANCE PROBLEMS [p= ] A. Driving In Oppsing Lanes r Wrng Way On One-Way Street - The vehicle is bserved heading int ppsing r crssing traffic under ne r mre f the fllwing circumstances: driving in the ppsing lane; backing int traffic; failing t yield the right-f-way; driving the wrng way n a ne-way street. The last circumstance is illustrated belw. B. Slw Respnse t Traffic Signals - The bserved vehicle exhibits a lnger than nrmal respnse t a change in traffic signal. Fr example, the driver remains stpped at the intersectin fr an abnrmally lng perid f time after the traffic signal has turned green. C. Slw Or Failure T Respnd T Officer s Signals - Driver is unusually slw t respnd t an fficer s lights, siren r hand signals. D. Stpping in Lane fr N Apparent Reasn - The critical element in this cue is that there is n bservable justificatin fr the vehicle t stp in the traffic lane; the stp is nt caused by traffic cnditins, traffic signals, an emergency situatin, r related circumstances. Impaired drivers might stp in the lane when their capability t interpret infrmatin and make decisins becmes impaired. As a cnsequence, stpping in lane fr n apparent reasn is likely t ccur at intersectins r ther decisin pints. HS 178 R2/06 V-5

107 E. Driving Withut Headlights At Night - The bserved vehicle is being driven with bth headlights ff during a perid f the day when the use f headlights is required. F. Failure t Signal r Signal Incnsistent with Actin - A number f pssibilities exist fr the driver s signaling t be incnsistent with the assciated driving actins. This cue ccurs when incnsistencies such as the fllwing are bserved: failing t signal a turn r lane change; signaling ppsite t the turn r lane change executed; signaling cnstantly with n accmpanying driving actin; and driving with fur-way hazard flashers n. 4. JUDGMENT PROBLEMS [p= ] A. Fllwing T Clsely - The vehicle is bserved fllwing anther vehicle while nt maintaining the legal minimum separatin. B. Imprper Or Unsafe Lane Change - Driver taking risks r endangering thers. Driver is frequently r abruptly changing lanes withut regard t ther mtrists. C. Illegal r Imprper Turn (t fast, jerky, sharp, etc.) - The driver executes any turn that is abnrmally abrupt r illegal. Specific examples include: turning with excessive speed; turning sharply frm the wrng lane; making a U illegally; turning frm utside a designated turn lane. D. Driving n Other Than Designated Radway - The vehicle is bserved being driven n ther than the radway designated fr traffic mvement. Examples include driving: at the edge f the radway, n the shulder, ff the radway entirely, and straight thrugh turn-nly lanes r areas. E. Stpping Inapprpriately In Respnse T Officer - The bserved vehicle stps at an inapprpriate lcatin r under inapprpriate cnditins, ther than in the traffic lane. Examples include stpping: in a prhibited zne; at a crsswalk; far shrt f an intersectin; n a walkway; acrss lanes; fr a green traffic signal; fr a flashing yellw traffic signal; abruptly as if startled; r in an illegal, dangerus manner. F. Inapprpriate Or Unusual Behavir (thrwing bjects, arguing, etc.) - Thrwing bjects frm the vehicle, drinking in the vehicle, urinating at radside, arguing withut cause, ther disrderly actins. HS 178 R2/06 V-6

108 G. Appearing t be Impaired - This cue is actually ne r mre f a set f indicatrs related t the persnal behavir r appearance f the driver. Examples f specific indicatrs might include: Eye fixatin Tightly gripping the steering wheel Sluching in the seat Gesturing erratically r bscenely Face clse t the windshield Driver s head prtruding frm vehicle POST STOP CUES p > Difficulty with mtr vehicle cntrls 2. Difficulty exiting the vehicle 3. Fumbling with driver s license r registratin 4. Repeating questins r cmments 5. Swaying, unsteady, r balance prblems 6. Leaning n the vehicle r ther bject 7. Slurred speech 8. Slw t respnd t fficer/fficer must repeat 9. Prvides incrrect infrmatin, changes answers 10. Odr f alchlic beverage frm the driver Ask fr Visual Detectin f DWI Mtrists. (DOT HS ). HS 178 R2/06 V-7

109 VISUAL DETECTION OF DWI MOTORCYCLISTS NHTSA has als develped research identifying driving impairment cues fr mtrcyclists (ANACAPA Sciences, DOT HS , 1993). Excellent Cues (50% r greater prbability) Drifting during turn r curve Truble with dismunt Truble with balance at a stp Turning prblems (e.g., unsteady, sudden crrectins, late braking, imprper lean angle) Inattentive t surrundings Inapprpriate r unusual behavir (e.g., carrying r drpping bject, urinating at radside, disrderly cnduct, etc.) Weaving Gd Cues (30 t 50% prbability) Erratic mvements while ging straight Operating withut lights at night Recklessness Fllwing t clsely Running stp light r sign Evasin Wrng way 3. DIVIDED ATTENTION It is imprtant t understand the effects f alchl are exhibited in driving s that the significance f visual cues will be recgnized. Driving is a cmplex task invlving a number f subtasks, many f which ccur simultaneusly. These include: steering; cntrlling the acceleratr; signaling; cntrlling the brake pedal perating the clutch; perating t gearshift; bserving ther traffic; bserving signal lights, stp signs & ther traffic cntrl devices; and making decisins (whether t stp, turn, speed up, slw dwn). HS 178 R2/06 V-8

110 Safe driving demands the ability t divide attentin amng these varius tasks. "Divided attentin" simply means the ability t cncentrate n tw r mre things at the same time. Under the influence f alchl and/r ther drugs, a driver's ability t divide attentin is impaired. As a result, the impaired driver tends t cncentrate n nly the mst imprtant r critical parts f driving and t disregard the less imprtant parts, ften creating unexpected r dangerus situatins fr ther drivers. Tw examples were particularly evident in the vide segment Visual Detectin f Driving While Intxicated. In ne instance the driver signaled fr left turn, but actually turned right. In the ther, the driver remained stpped at a green light. In each case the driver was unable t divide attentin. The first driver was cncentrating n steering, lking fr the street where he wished t turn and slwing fr the turn. The driver realized that a signal was required and actually perated the signal lever. But the driver didn't have enugh attentin left t mve the lever in the right directin. Therefre he signaled left, but turned right. The secnd driver was stpped at a traffic light, but he did nt have enugh attentin left t react t the specific clr f the light. Therefre he did nt respnd t the green light. Sme f the mst significant evidence frm all three phases f DWI detectin can be related directly t the effects f alchl and/r ther drugs n divided attentin ability. We will return t the cncept f divided attentin in Sessin VI. Persnal Cntact and Sessin VII. Pre-arrest Screening. 4. RECOGNIZING AND DESCRIBING INITIAL CUES Observing the vehicle in peratin is the first task in DWI detectin. Prper perfrmance f that task requires tw distinct but related abilities: the ability t recgnize evidence f impairment; and the ability t describe that evidence clearly and cnvincingly. It is nt enugh that yu bserve and recgnize symptms f impaired driving. Yu als must be able t describe what happened s that thers will have a clear mental picture f what tk place. Imprving yur ability t recgnize and clearly describe bservatinal evidence requires practice. HS 178 R2/06 V-9

111 5. THE STOPPING SEQUENCE Yur secnd task during Phase One f the detectin prcess is t bserve the manner in which the driver respnds t yur signal t stp, and t nte any additinal evidence f a DWI vilatin. Cues reinfrcing the suspicin f DWI may be fund in the stpping sequence. After the cmmand t stp is given, the impaired driver may exhibit additinal imprtant evidence f DWI. These cues may include: an attempt t flee; n respnse; slw respnse; an abrupt swerve; sudden stp; and striking the curb r anther bject. Sme f these cues are exhibited because the stp cmmand places additinal demands n the driver's ability t divide attentin. The signal t stp creates a new situatin with which the driver must cpe. Flashing emergency lights r a siren demand and divert the driver's attentin, requiring that the driver nw divide attentin between driving and respnding t the stp cmmand. Stpping itself requires the driver simultaneusly t turn the steering wheel, put n the brakes, use a turn signal, and s n. Thus the driver's task becmes mre cmplex when the stp cmmand is given. An impaired driver may nt be able t handle this mre cmplex task and additinal evidence f impairment may appear. It is yur respnsibility t recgnize, recrd and cnvey the additinal evidence f driving impairment that may cme t light during the stpping sequence. This task, like Task One, bserving the vehicle in peratin, requires: the ability t recgnize evidence f impairment; and the ability t describe that evidence clearly and cnvincingly. Recgnizing and describing the reinfrcing cues f DWI that appear during the stpping sequence requires practice. HS 178 R2/06 V-10

112 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. The Phase One tasks are 2. Tw cmmn symptms f impairment are: a. b. 3. Alchl impairs the ability t amng tasks. 4. Three cues reinfrcing the suspicin f DWI which may be bserved during the stpping sequence are: a. b. c. HS 178 R2/06 V-11

113 ATTACHMENT(S)

114 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

115 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results:

116 ATTACHMENT B The Detectin f DWI at BACs Belw 0.10 Final Reprt Submitted t: U.S. DEPARTMENT OF TRANSPORTATION NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION Jack Stuster, PhD, CPE Prject Directr 12 September 1997 ANACAPA SCIENCES, INC. P.O. Bx 519 Santa Barbara, Califrnia (805)

117 Executive Summary This reprt dcuments the research activities and presents the results f a study cnducted fr the Natinal Highway Traffic Safety Administratin (NHTSA) t identify driving and ther behaviral cues that are assciated with bld alchl cncentratins (BACs) belw the 0.10 level. The ultimate bjective f the research has been t develp training materials t assist law enfrcement fficers in the accurate detectin f mtrists wh are driving while impaired (DWI). Descriptin f the Research The research and develpment prject was cmpsed f 13 majr prject tasks, cnducted in tw phases. During Phase I, a wrk plan was develped t guide all subsequent tasks, a cmprehensive review f the lw BAC literature was perfrmed, interviews were cnducted with DWI experts frm acrss the United States, a data base f lw BAC arrest reprts was assembled, and tw field studies were cnducted. The analysis f archival, interview, arrest reprt, and field data cllected by bservers led t the identificatin f 34 driving cues and 10 pst-stp cues fr further evaluatin. Five law enfrcement agencies participated in the secnd f the field studies, knwn as the preliminary field study, by recrding the driving and pst-stp cues bserved fr all enfrcement stps, regardless f the dispsitin f the stp; the BACs f all drivers wh exhibited bjective signs f having cnsumed alchl als were recrded. By cllecting data abut all enfrcement stps that were made, it was pssible t calculate the prprtins f the stps in which specific cues were fund in assciatin with varius BAC levels. All archival, interview, and field study data were analyzed, and recmmendatins fr draft training materials were develped, as the final Phase I task. A draft DWI detectin guide, training bklet, and training vide were develped based n the results f the preliminary field study; the materials included 24 driving and 10 pst-stp cues. Law enfrcement agencies representing 11 f the 15 states with 0.08 BAC limits fr DWI were recruited t participate in the Phase II validatin study. Participating fficers reviewed the vide and printed training materials, then cmpleted a data cllectin frm fllwing every enfrcement stp made, regardless f the dispsitin f the stp; the same frm was used as in the preliminary field study, cnducted previusly. The validatin study data were analyzed and a final versin f the training materials, and this technical reprt, were prepared as the final Phase II prject tasks. Data were cllected during mre than 12,000 enfrcement stps during this research prject. The stps were made by several hundred participating fficers, representing mre than 50 law enfrcement agencies frm acrss the United States. -- i --

118 Results The results f the preliminary field study largely supprted the 20 cues at the 0.08 BAC level that were presented n the riginal NHTSA DWI detectin guide, which was develped in 1980 fr the 0.10 BAC level. Hwever, n cues were fund that reliably predicted BACs belw 0.08; that is, the cues that are key predictrs f DWI at the 0.08 BAC level failed t emerge with useful prbabilities at BAC levels belw The results f the Phase II validatin study further cnfirmed the key cues that were cntained in the riginal NHTSA guide, a few additinal driving cues, and the 10 pst-stp cues. The DWI driving cues were presented in functinal categries in bth the printed materials and the training vide: Prblems Maintaining Prper Lane Psitin, Speed and Braking Prblems, Vigilance Prblems, and Judgment Prblems. Slight mdificatins were made t the training materials, based n the results f the Phase II validatin study. The final versin f the DWI detectin guide is reprduced belw. DWI DETECTION GUIDE Weaving plus any ther cue: p = at least.65 Any tw cues: p = at least.50 PROBLEMS MAINTAINING PROPER LANE POSITION Weaving Weaving acrss lane lines p= Straddling a lane line Swerving Turning with a wide radius Drifting Almst striking a vehicle r ther bject SPEED AND BRAKING PROBLEMS p= Stpping prblems (t far, t shrt, r t jerky) Accelerating r decelerating fr n apparent reasn Varying speed Slw speed (10+ mph under limit) VIGILANCE PROBLEMS p= Driving in ppsing lanes r wrng way n ne-way Slw respnse t traffic signals Slw r failure t respnd t fficer s signals Stpping in lane fr n apparent reasn Driving withut headlights at night* Failure t signal r signal incnsistent with actin* JUDGMENT PROBLEMS p= Fllwing t clsely Imprper r unsafe lane change Illegal r imprper turn (t fast, jerky, sharp, etc.) Driving n ther than the designated radway Stpping inapprpriately in respnse t fficer Inapprpriate r unusual behavir (thrwing, arguing, etc.) Appearing t be impaired POST STOP CUES p>.85 Difficulty with mtr vehicle cntrls Difficulty exiting the vehicle Fumbling with driver s license r registratin Repeating questins r cmments Swaying, unsteady, r balance prblems Leaning n the vehicle r ther bject Slurred speech Slw t respnd t fficer/fficer must repeat Prvides incrrect infrmatin, changes answers Odr f alchlic beverage frm the driver *p>.50 when cmbined with any ther cue: Driving withut headlights at night Failure t signal r signal incnsistent with actin The prbability f detecting DWI by randm traffic enfrcement stps at night has been fund t be abut three percent (.03). -- ii --

119 Anacapa Sciences, Inc.: Appendix B DWI Detectin at BACs Belw 0.10 DWI Cues At BACs Belw 0.10 A Review f the Literature The purpse f this review is t prepare infrmatin fr the research team cncerning the determinatin and validatin f visual cues fr the detectin f mtrists wh are driving while impaired (DWI) with bld alchl cncentratins (BACs) belw BACKGROUND An emphasis n DWI enfrcement during the past decade has been a factr in the significant imprvement in traffic safety, as represented by declining fatal and alchl-invlved crash rates. Despite the significant imprvements in traffic safety during the past 30 years, particularly during the past decade, mre than 40,000 peple still perish each year as a result f mtr vehicle crashes. The current US traffic fatality rate amunt t a daily average f abut 126 peple the equivalent f a Being 727 crashing every day f the year. The ecnmic lsses frm alchl invlved crashes are staggering at an estimated $21 t $24 billin annually (fr prperty damage alne) (Miller, 1992). In 1990, the cmbined cst f all traffic cllisins was $137.5 billin, including 28 millin vehicles damaged, 5.4 millin peple injured, and 44,531 lives lst (Blince & Faigin, 1992). A reductin in the number f alchl-invlved crashes and the number f alchl-impaired drivers n the rad is a tp pririty. Numerus studies indicate that when DWI enfrcement levels are increased, the number f alchl invlved cllisins decrease (Hause, Chavez, Hannn, Mathesn, 1977; Vas & Haus, 1987; Blmberg, 1992). Hwever, many fficers are unable t identify legally impaired drivers frm their driving behavir, r even during the brief interview custmary at a sbriety checkpint. Fr example, in the Netherlands, as many as 32 percent f drivers with BACs abve.05 might escape detectin at checkpint, when fficers have the advantage f a face-t-face exchange (Gundy & Verschuur, 1986). There are at least tw clear slutins t the lw BAC DWI detectin prblem: 1) Randm Breath Testing (RBT) t bjectively detect drivers perating abve the legal limit; and, 2) increased fficer sensitivity t behaviral cues exhibited at lwer BAC levels. Althugh the RBT methd is perating effectively in Australia (McCaul & McLean, 1990), it is prbably nt an apprpriate prgram fr the United States. Furth Amendment rights currently prevent randm breath testing; fr example, testing nly can ccur at a sbriety checkpint after prbably cause has been established (Vas, 1991). Thus, the mst likely slutin t imprving detectin f lw BACs is t imprve the DWI detectin ability f law enfrcement fficers. -- B

120 Anacapa Sciences, Inc.: Appendix B DWI Detectin at BACs Belw 0.10 In 1980, Harris et al. cnducted NHTSA spnsred research t determine the behaviral cues fr n-the-rad detectin f DWI. The final prduct f this Anacapa Sciences study was a DWI Detectin Guide prviding 20 visual cues cmmnly exhibited by impaired drivers with a BAC equal t r greater than The Guide prvides the prbability fr each cue f discriminating between Driving While Impaired (DWI) and Driving While Sber (DWS). The DWI Detectin Guide and supprting training materials are part f the DWI Detectin and Standardized Field Sbriety Testing curse currently distributed by NHTSA (NHTSA, 1990). Surprisingly, althugh there has been a limited evaluatin f the DWI Detectin Guide (Vingilis et al., 1983), the nly additinal research f this type that has been perfrmed since 1980 was a NHTSA spnsred study t develp a mtrcycle DWI detectin guide (Stuster, 1993). It is legitimate t questin whether a cue guide calibrated fr the 0.08 level wuld appear very similar if nt identical t the DWI detectin guide develped nearly 20 years ag by Anacapa Sciences. A new, lwer BAC limit DWI detectin guide might ultimately appear similar t the ld guide, but the research is imprtant fr at least three reasns. 1. The research that supprted the develpment f the DWI Detectin Guide was cnducted 18 years ag. Many things have changed cnsiderably since the late 1970s. It is nt unreasnable t suspect that sme fundamental changes might be reflected in the behaviral cues assciated with driver impairment. And, there might be behavirs that crrelate mre clsely with lwer than higher BACs. 2. At the very least, a peridic reprise f a research and develpment effrt is warranted if the wrk invlved imprtant public plicy and enfrcement implicatins. The DWI Detectin Guide and training prgram have nt been reviewed r revised since they were develped. Increased awareness f DWI issues and public supprt fr DWI enfrcement in recent years cntribute t the need t upgrade and make current an imprtant decisin aid and training prgram that is used by law enfrcement persnnel frm acrss the U.S. 3. It is essential fr researchers t view the issue f DWI detectin frm the perspective f an fficer n patrl. A patrl fficer wants t knw the likelihd that a specific driver behavir is indicative f DWI at the (new) 0.08 level r abve, r at the 0.04 level r abve. The r abve is imprtant because as the BAC level is reduced the prbability that a given cue is predictive f DWI rises because all f the r abves are included in the calculatin. Frm the fficer s perspective (in an 0.08 jurisdictin) it is usually irrelevant if the mtrist is 0.08, 0.10, r sme higher value it is nly imprtant t determine that the mtrist is 0.08 r abve. -- B

121 Anacapa Sciences, Inc.: Appendix B DWI Detectin at BACs Belw 0.10 Althugh the mdal BAC limit fr DWI cntinues t be 0.10 in the United States, there is a definite trend twards lwering the limit. When the current prject started in 1993, nly five states had adpted a 0.08 percent legal limit, but by the cnclusin f the research the number f states with a 0.08 limit had increased t 15. Further, the Cmmercial Mtr Vehicle Safety Act f 1986 established a natinwide maximum BAC f 0.04 percent fr all cmmercial drivers. In additin, several states have adpted a zer tlerance statute r a 0.02 percent BAC limit fr yuthful drivers. Studies that suggest lw fficer DWI detectin rates, and imprved lw BAC detectin when using passive alchl sensrs (Kiger et al., 1983; Jnes et al., 1985: Vingilis and Gingilis, 1985), suggest the need fr a DWI detectin guide fr levels belw 0.10 percent BAC. RELEVANT RESEARCH The trend f lwering BAC limits is a reflectin f the grwing bdy f evidence that alchl begins t impair nervus functin at BAC levels belw 0.10 percent. Mskwitz and Rbinsn (1988) cnducted a cmprehensive literature review cncerning the effects f alchl n driving behavir, emphasizing the BACs at which impairment begins. A majrity f studies fund impairment at lw BACs (belw 0.07). Many studies fund impairment at the 0.04 level and belw. Mskwitz and Rbinsn cmputed BACs fr all studies, even thse that included BAC data in the riginal reprt. Often these calculatins resulted in higher BACs than were reprted in the riginal study, prbably because the lder devices were inaccurate. The calculatins als allwed fr gender differences (by taking int accunt the different percentages f bdy water in females and males). If anything, the calculatins perfrmed by Mskwitz and Rbinsn lead t an verestimatin f BAC level. If this is the case, the impairments they reprt at varius BAC levels actually might ccur at lwer BACs than reprted later in this review. In the Mskwitz study, factrs were gruped int behaviral categries pertinent t driving. The fllwing categries were affected at 0.05 percent BAC. Reactin time Tracking Divided attentin Infrmatin prcessing Visual functins Perceptin Driving behavirs that shwed impairment at 0.08 percent t as lw as 0.03 percent included: Steering Gear changing Braking Speed judgment Speed cntrl Distance judgment Lane tracking -- B

122 Anacapa Sciences, Inc.: Appendix B DWI Detectin at BACs Belw 0.10 In additin, tasks requiring divided attentin shwed impairment at BACs as lw as 0.02 percent. These driver behavirs are listed in the table presented at the end f this sectin; the table prvides a cmprehensive inventry f all DWI cues identified during the current review. Althugh the Mskwitz and Rbinsn review is the mst extensive surce f infrmatin available abut driver impairment at varius BAC levels, several ther studies identify ptential cues fr DWI detectin. In an Anacapa Sciences study cnducted fr the Insurance Institute fr Highway Safety, Casey and Stuster (1982) identified the fllwing 12 risky driving behavirs f bth autmbile and mtrcycle peratrs. Running stp sign r traffic light Unsafe passing due t ncming traffic Unsafe turn in frnt f ncming r ppsing traffic Fllwing t clsely Unsafe lane change r unsafe merging Weaving thrugh traffic Crssing a duble line in rder t pass Passing n the right Excessive speed fr cnditins Imprper turn Splitting traffic Stunts Similarly, Treat et al. (1980), in a study f risky driving actins and their invlvement in traffic cllisins, identified the fllwing 13 Unsafe Driving Actins. Pulling ut in frnt f traffic Fllwing behavir Speeding: Abslute/Over limit Speeding: Relative/Fr traffic cnditins Turning in frnt f ncming traffic Running stp sign r light Changing lanes r merging in frnt f traffic Driving left f center r n centerline Passing unsafely Driving ff rad t right Backing unsafely Turning t wide r t sharp Turning frm wrng lane -- B

123 Anacapa Sciences, Inc.: Appendix B DWI Detectin at BACs Belw 0.10 Several f these unsafe driving actins als have been identified as indicatrs f driving while impaired in the Harris et al (1980) study: fllwing t clsely, fast speed (deleted frm the final versin f the DWI Detectin Guide), failing t respnd t traffic signals r signs, and driving int ppsing r crssing traffic. Additinally, several studies suggest stpping methd as a primary difference between DWI and unimpaired driving (Attwd et al., 1980; Bragg et al., 1981; Cmptn, 1985). Differences included braking sner and stpping jerkily when under the influence f alchl. In a study develping and validating the sbriety field test battery, Tharp, Burns, and Mskwitz (1981) reprted the reasns fr stpping suspected alchl impaired drivers. The mst cmmn reasns were traffic infractins (e.g., speeding, failing t stp) rather than nn-infractin driving behavirs such as weaving r drifting. There is significant verlap between the behavirs reprted by Tharp et al. (1981) and the DWI n-the-rad detectin cues identified by Harris et al. (1980). In a study evaluating screening prcedures fr plice fficers at sbriety checkpints, cues nticed by fficers were crrelated with the BAC levels f the drivers. Cmptn (1985) fund significant differences in stpping behavir. In general, drivers stpped smthly at lw BAC levels (0-0.04) and jerkily at higher BAC levels ( ). Drivers with a lw BAC did nt serve, thse with higher BACs (greater than 0.10) did. Cues identified by Cmptn that related t driving and stpping behavirs, and persnal appearance, are presented in the cmprehensive table at the end f this review. The cues identified in the Cmptn study include persnal appearance variables nt previusly identified in the 1980 Harris et al. study. These cues include: Odr f alchl Face flushed Speech slurred Eyes dilated Demeanr Hair disheveled Pr dexterity Clthes disheveled Of these persnal appearance variables, dr f alchl, face flushed, and eyes dilated appear t be the mst prmising fr DWI detectin at lw BAC levels. -- B

124 Anacapa Sciences, Inc.: Appendix B DWI Detectin at BACs Belw 0.10 CONCLUSIONS The bjective f the current study is t develp an apprpriate set f behavirs that can be used by field fficers t accurately identify mtrists wh are driving while impaired at the 0.08 level, and t determine if cues are available that predict 0.04 and 0.02 BAC levels. N surces were identified that specifically identify behaviral cues fr alchl impairment at the lwer levels. Hwever, a table f ptentially applicable behavirs has been prepared, based n a cmprehensive review f the literature. This list, presented in the fllwing table, includes all behavirs previusly discussed in this review, and shws the cnsiderable agreement amng the studies. The behavirs identified here later will be cmbined with cues identified during interviews with DWI patrl experts, and frm the archival research. The resulting cmprehensive inventry f DWI cues then will be used t develp data cllectin frms fr the first f the field studies. -- B

125 SESSION VI PHASE TWO: PERSONAL CONTACT HS 178 R2/06

126 SESSION VI PHASE TWO: PERSONAL CONTACT Upn successfully cmpleting this sessin, the participant will be able t: Identify typical clues f Detectin Phase Tw. Describe the bserved clues clearly and cnvincingly. CONTENT SEGMENTS LEARNING ACTIVITIES A. Overview: Tasks and Decisin Instructr-Led Presentatins B. Typical Investigatin Clues f the Driver Interview Vide Presentatin C. Recgnitin and Descriptin f Investigatin Clues Instructr-Led Demnstratins D. Interview/Questins Techniques Participant s Presentatins E. Recgnitin and Descriptin f Clues Assciated With the Exit Sequence HS 178 R2/06

127 PERSONAL CONTACT OVERVIEW DWI Detectin Phase Tw: Persnal Cntact, like Phases One and Three, cmprises tw majr evidence gathering tasks and ne majr decisin. Yur first task is t apprach, bserve and interview the driver while they are still in the vehicle t nte any face-t-face evidence f impairment. During this face-t-face cntact yu may administer sme simple pre-exit sbriety tests t gain additinal infrmatin t evaluate whether r nt the driver is impaired. After this evaluatin, yu must decide whether t request the driver t exit the vehicle fr further field sbriety testing. In sme jurisdictins departmental plicy may dictate that all drivers stpped n suspicin f DWI be instructed t exit. It is imprtant t nte that by instructing the driver t exit the vehicle, yu still are nt cmmitted t an arrest; this is simply anther step in the DWI detectin prcess. Once yu have requested the driver t exit the vehicle, yur secnd task is t bserve the manner in which the driver exits t nte any additinal evidence f impairment. NOTE: Yu may initiate Phase Tw withut Phase One. This may ccur, fr example, at a radblck, r when yu have respnded t the scene f a crash. TASK ONE The first task f Phase Tw, bservatin and interview f the driver, begins as sn as the suspect vehicle and the patrl vehicle have cme t cmplete stps. It cntinues thrugh yur apprach t the suspect vehicle and invlves all cnversatin between yu and the driver prir t the driver's exit frm the vehicle. HS 178 R2/06 VI-1

128 Yu may have develped a strng suspicin that the driver is impaired prir t the face-t-face bservatin and interview. Yu may have develped this suspicin by bserving smething unusual while the vehicle was in mtin, r during the stpping sequence, r yu may have develped n suspicin f DWI prir t the face-t-face cntact. The vehicle peratin and the stp may have been nrmal, yu may have seen n actins suggesting DWI. Fr example, yu may have stpped the vehicle fr a equipment/registratin vilatin, r where n unusual driving was evident. In sme cases, Phase One will have been absent. Fr example, yu may first encunter the driver and vehicle after a crash r when respnding t a request fr mtrist assistance. Regardless f the evidence that may have cme t light during Detectin Phase One, yur initial face-t-face cntact with the driver usually prvides the first definite indicatins that the driver is impaired. DECISION Based upn yur face-t-face interview and bservatin f the driver, and upn yur previus bservatins f the vehicle in mtin and the stpping sequence, yu must decide whether there is sufficient reasn t instruct the driver t step frm the vehicle. Fr sme law enfrcement fficers, this decisin is autmatic since their agency plicy dictates that the driver always be tld t exit the vehicle, regardless f the cause fr the stp. Other agencies, hwever, treat this as a discretinary decisin, t be based n what the fficer sees, hears and smells during bservatin and interview with the driver while the driver is seated in the vehicle. If yu decide t instruct the driver t exit, yu must clsely bserve the driver's actins during the exit frm the vehicle and nte any evidence f impairment. TYPICAL INVESTIGATION CLUES: THE DRIVER INTERVIEW Face-t-face bservatin and interview f the driver allws yu t use three senses t gather evidence f alchl and/r ther drug influence: the sense f sight; the sense f hearing; and the sense f smell. HS 178 R2/06 VI-2

129 SIGHT There are a number f things yu might see during the interview that wuld be describable clues r evidence f alchl and/r ther drug influence. Amng them are: bldsht eyes; siled clthing; fumbling fingers; alchl cntainers; drugs r drug paraphernalia; bruises, bumps r scratches; unusual actins. HEARING Amng the things yu might hear during the interview that wuld be describable clues r evidence f alchl and/r ther drug influence are these: slurred speech; admissin f drinking; incnsistent respnses; abusive language; unusual statements. SMELL There are things yu might smell during the interview that wuld be describable clues r evidence f alchl and/r ther drug influence. Typically these include: alchlic beverages; marijuana; "cver up" drs like breath sprays; unusual drs. REQUIRED ABILITIES Prper face-t-face bservatin and interview f the driver demands tw distinct but related abilities: the ability t recgnize the sensry evidence f alchl and/r ther drug influence; and the ability t describe that evidence clearly and cnvincingly. Develping these abilities requires practice. HS 178 R2/06 VI-3

130 PRE-EXIT INTERVIEW TECHNIQUES A basic purpse f the face-t-face bservatin and interview f the driver is t identify and gather evidence f alchl and/r ther drug influence. This is the purpse f each task in each phase f DWI detectin. During the face-t-face bservatin and interview stage, it is nt necessary t gather sufficient evidence t arrest the driver immediately fr DWI. There are a number f techniques yu can use while the driver is still behind the wheel. Mst f these techniques apply the cncept f divided attentin. They require the driver t cncentrate n tw r mre things at the same time. They include bth questining techniques and psychphysical (mind/bdy) tasks. These techniques are nt as reliable as the standardized field sbriety tests but they can still be useful fr btaining evidence f impairment. THESE TECHNIQUES DO NOT REPLACE THE SFST. Questining Techniques The questins yu ask and the way in which yu ask them can cnstitute simple divided attentin tasks. Three techniques are particularly pertinent: asking fr tw things simultaneusly; asking interrupting r distracting questins; and, asking unusual questins. An example f the first technique, asking fr tw things simultaneusly, is requesting that the driver prduce bth the driver's license and the vehicle registratin. Pssible evidence f impairment may cme t light as the driver respnds t this dual request. Be alert fr the driver wh: frgets t prduce bth dcuments; prduces dcuments ther than the nes requested; fails t see the license, registratin r bth while searching thrugh wallet r purse; fumbles r drps wallet, purse, license r registratin; is unable t retrieve dcuments using fingertips. HS 178 R2/06 VI-4

131 The secnd technique, asking interrupting r distracting questins, frces the driver t divide attentin between searching fr the license r registratin and answering a new questin. While the driver is respnding t the request fr license, registratin r bth, yu ask an unrelated questin like, "Withut lking at yur watch, what time is it right nw?" Pssible evidence f impairment may be disclsed by the interrupting r distracting questin. Be alert fr the driver wh: ignres the questin and cncentrates nly n the license r registratin search; frgets t resume the search after answering the questin; supplies a grssly incrrect answer t the questin. The third technique, asking unusual questins, is emplyed after yu have btained the driver's license and registratin. Using this technique, yu seek verifying infrmatin thrugh unusual questins. Fr example, while hlding the driver's license, yu might ask the driver, "What is yur middle name?" There are many such questins which the driver nrmally wuld be able t answer easily, but which might prve difficult if the driver is impaired, simply because they are unusual questins. Unusual questins require the driver t prcess infrmatin; this can be especially difficult when the driver des nt expect t have t prcess infrmatin. Fr example, a driver may respnd t the questin abut the middle name by giving a first name. In this case the driver ignred the unusual questin and respnded instead t a usual -- but unasked -- questin. ADDITIONAL TECHNIQUES Knw if there are any judicial restraints in reference t these tests. ALPHABET This technique requires the subject t recite a part f the alphabet. Yu instruct the subject t recite the alphabet beginning with a letter ther than A and stpping at a letter ther than Z. Fr example, yu might say t a driver, "Recite the alphabet, beginning with the letter E as in Edward and stpping with the letter P as in Paul." This divides the driver's attentin because the driver must cncentrate t begin at an unusual starting pint and recall where t stp. COUNT DOWN This technique requires the subject t cunt ut lud 15 r mre numbers in reverse sequence. Fr example, yu might request a driver t, "Cunt ut lud backwards, starting with the number 68 and ending with the number 53." This, t, divides attentin because the driver must cntinuusly cncentrate t cunt backwards while trying t recall where t stp. HS 178 R2/06 VI-5

132 NOTE: This technique shuld never be given using starting and stpping pints that end in 0 r 5 because these numbers are t easy t recall. Fr example, d nt request that the driver cunt backwards frm 65 t 50. Instead, ask the driver t cunt backwards frm 64 t 49. FINGER COUNT In this technique, the subject is asked t tuch the tip f the thumb in turn t the tip f each finger n the same hand while simultaneusly cunting up ne, tw, three, fur; then t reverse directin n the fingers while simultaneusly cunting dwn fur, three, tw, ne. In each instance, nte whether and hw well the subject is able t perfrm the divided attentin task. THE EXIT SEQUENCE Yur decisin t instruct the driver t step frm the vehicle usually is made after yu have develped a suspicin that the driver is impaired.* Even thugh that suspicin may be very strng, usually the suspect is nt yet under arrest when yu give the instructin. Hw the driver steps and walks frm the vehicle and actins r behavir during the exit sequence may prvide imprtant evidence f impairment. Be alert t the driver wh: shws angry r unusual reactins; cannt fllw instructins; cannt pen the dr; leaves the vehicle in gear; "climbs" ut f vehicle; leans against vehicle; keeps hands n vehicle fr balance. Prper face-t-face bservatin and interview f a driver requires the ability t recgnize the sensry evidence f alchl and/r ther drug influence and the ability t describe that evidence clearly and cnvincingly. Develping these abilities takes practice. *Except, hwever, that yu may instruct a suspect t exit the vehicle as a means f ensuring yur wn safety. Safety cnsideratins take precedence ver all ther cnsideratins. HS 178 R2/06 VI-6

133 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. The tw majr evidence gathering tasks f Phase Tw are 2. The majr decisin f Phase Tw is 3. Amng the describable clues an fficer might see during the Phase Tw interview are these three: a. b. c. 4. Amng the describable clues an fficer might hear during the Phase II interview are these three: a. b. c. 5. Amng the describable clues an fficer might smell during the Phase II interview are these tw: a. b. HS 178 R2/06 VI-7

134 6. Three techniques an fficer might use in asking questins cnstitute simple divided attentin tasks. These techniques are: a. b. c. 7. The Cunt Dwn Technique requires the subject t 8. Leaning against the vehicle is a clue t DWI which may be bserved during HS 178 R2/06 VI-8

135 ATTACHMENT(S)

136 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

137 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results:

138 SESSION VII PHASE THREE: PRE-ARREST SCREENING HS 178 R2/06

139 SESSION VII PHASE THREE: PRE-ARREST SCREENING Upn successfully cmpleting this sessin, the participants will be able t: Describe the rle f psychphysical and preliminary breath tests. Define and describe the cncepts f divided attentin and nystagmus. Discuss the advantages and limitatins f preliminary breath testing. Discuss the arrest decisin prcess. CONTENT SEGMENTS LEARNING ACTIVITIES A. Overview: Tasks and Decisin Instructr-Led Presentatins B. Gaze Nystagmus - Definitin Instructr-Led Demnstratins C. Hrizntal Gaze Nystagmus - Definitin, Vide Presentatin Cncepts, Demnstratins D. Vertical Gaze Nystagmus - Definitin, Cncepts, Demnstratins E. Divided Attentin Tests: Cncepts, Examples, Demnstratins F. Advantages and Limitatins f Preliminary Breath Testing G. The Arrest Decisin HS 178 R2/06

140 PHASE THREE TASKS AND DECISION PRE-ARREST SCREENING Like Phases One and Tw, DWI Detectin Phase Three, Pre-arrest Screening has tw majr evidence gathering tasks and ne majr decisin. PHASE THREE: Prearrest Screening? IS THERE PROBABLE CAUSE TO ARREST THE SUSPECT FOR DWI? Yur first task in Phase Three is t administer three scientifically validated psychphysical (field) sbriety tests. Based n these tests and n all ther evidence frm Phase One and Tw, yu must decide whether there is sufficient prbable cause t arrest the driver fr DWI. Yur secnd task may then be t administer (r arrange fr) a preliminary breath test (PBT) t cnfirm the chemical basis f the driver's impairment, if yur agency uses PBTs. The entire detectin prcess culminates in the arrest/n arrest decisin. PSYCHOPHYSICAL TESTS Psychphysical tests are methds f assessing a suspect's mental and physical impairment. These tests fcus n the abilities needed fr safe driving: balance, crdinatin, infrmatin prcessing and s n. Psychphysical testing actually begins as sn as yu cme int face-t-face cntact with the suspect and begin the interview. Psychphysical testing cntinues as the suspect steps frm the vehicle and yu bserve the manner f the exit and walk frm the vehicle. The mst significant psychphysical tests are the three scientifically validated structured tests that yu administer at radside. HS 178 R2/06 VII-1

141 PRELIMINARY BREATH-TEST The preliminary breath test (PBT) can help t crrbrate all ther evidence and t cnfirm yur judgment as t whether the suspect is impaired. Usually PBT results cannt be intrduced as evidence against the driver in curt. Hwever, state laws vary in this regard. THE ARREST DECISION The DWI detectin prcess cncludes with the arrest decisin. This decisin is based n all f the evidence yu have btained during all three detectin phases: n bservatin f the vehicle in mtin and during the stpping sequence; n face t face bservatin and interview f the driver. NYSTAGMUS "Nystagmus" means an invluntary jerking f the eyes. HORIZONTAL GAZE NYSTAGMUS Hrizntal Gaze Nystagmus (HGN) refers t an invluntary jerking ccurring as the eyes gaze tward the side. In additin t being invluntary the persn experiencing the nystagmus is unaware that the jerking is happening. Invluntary jerking f the eyes becmes readily nticeable when a persn is impaired. As a persn's bld alchl cncentratin increases, the eyes will begin t jerk sner as they mve t the side. Hrizntal Gaze Nystagmus is the mst reliable field sbriety test. Especially when used in cmbinatin with the divided attentin tests, it will help plice fficers crrectly identify suspects wh are impaired. In administering the HGN test, the fficer has the suspect fllw the mtin f a small stimulus with the eyes nly. The stimulus may be the tip f a pen r penlight, an eraser n a pencil r yur finger tip, whichever cntrasts with the backgrund. HS 178 R2/06 VII-2

142 When the HGN test is administered always begin with subject's left eye. Each eye is examined fr three specific clues. as the eye mves frm side t side, des it mve smthly r des it jerk nticeably? (As peple becme impaired by alchl, their eyes exhibit a lack f smth pursuit as they mve frm side t side.) when the eye mves as far t the side as pssible and is kept at that psitin fr several secnds, des it jerk distinctly? (Distinct and sustained nystagmus at maximum deviatin is anther clue f impairment.) as the eye mves tward the side, des it start t jerk prir t a 45-degree angle? (Onset f nystagmus prir t 45-degrees is anther clue f impairment.) As a persn's bld alchl cncentratin increases it is mre likely these clues will appear. The maximum number f clues that may appear in ne eye is three. The maximum ttal number fr any suspect is six. The riginal research shws that if fur r mre clues are evident, it is likely that the suspect's bld alchl cncentratin is abve With fur-r-mre clues present, this test is 77% accurate. VERTICAL GAZE NYSTAGMUS Vertical Gaze Nystagmus is an invluntary jerking f the eyes (up and dwn) which ccurs when the eyes gaze upward at maximum elevatin. Althugh this type f nystagmus was nt addressed in the riginal research, field experience has indicated that the presence f Vertical Gaze Nystagmus has prven t be a reliable indicatr f high dses f alchl fr that individual r certain ther drugs. HS 178 R2/06 VII-3

143 DIVIDED ATTENTION TESTS INTRODUCTION Many f the mst reliable and useful psychphysical tests emply the cncept f divided attentin: they require the subject t cncentrate n tw things at nce. Driving is a cmplex divided attentin task. In rder t perate a vehicle safely, drivers must simultaneusly cntrl steering, acceleratin and braking; react apprpriately t a cnstantly changing envirnment; and perfrm many ther tasks. Alchl and many ther drugs reduce a persn's ability t divide attentin. Impaired drivers ften ignre the less critical tasks f driving in rder t fcus their impaired attentin n the mre critical tasks. Fr example, a driver may ignre a traffic signal and fcus instead n speed cntrl. Even when they are impaired, many peple can handle a single, fcused attentin task fairly well. Fr example, a driver may be able t keep the vehicle well within the prper traffic lane, as lng as the rad remains fairly straight. Hwever, mst peple when impaired cannt satisfactrily divide their attentin t handle multiple tasks at nce. The cncept f divided attentin has been applied t psychphysical testing. Field sbriety tests that simulate the divided attentin characteristics f driving have been develped and are being used by plice departments natinwide. The best f these tests exercise the same mental and physical capabilities that a persn needs t drive safely: infrmatin prcessing; shrt-term memry; judgment and decisin making; balance; steady, sure reactins; clear visin; small muscle cntrl; crdinatin f limbs. Any test that requires a persn t demnstrate tw r mre f these capabilities simultaneusly is ptentially a gd psychphysical test. Simplicity is the key t divided attentin field sbriety testing. It is nt enugh t select a test that just divides the subject's attentin. The test als must be ne that is reasnably simple fr the average persn t perfrm when sber. Tests that are difficult fr a sber subject t perfrm have little r n evidentiary value. HS 178 R2/06 VII-4

144 Tw divided attentin field sbriety tests that have prven accurate and effective in DWI detectin are the Walk-and-Turn and the One-Leg Stand. These tests are described briefly belw. Walk-and-Turn Walk-and-Turn is a test that has been validated thrugh extensive research spnsred by the Natinal Highway Traffic Safety Administratin (NHTSA). It is a divided attentin test cnsisting f tw stages: Instructins Stage; and, Walking Stage. In the Instructins Stage, the subject must stand with their feet in heel-t-te psitin, keep their arms at their sides, and listen t the instructins. The Instructins Stage divides the subject's attentin between a balancing task (standing while maintaining the heel-t-te psitin) and an infrmatin prcessing task (listening t and remembering instructins). In the Walking Stage the subject takes nine heel-t-te steps, turn in a prescribed manner, and take nine heel-t-te steps back, while cunting the steps ut lud, while watching their feet. During the turn, the subject keeps their frnt ft n the line, turn in a prescribed manner, and use the ther ft t take several small steps t cmplete the turn. The Walking Stage divides the subject's attentin amng a balancing task (walking heel-t-te and turning); a small muscle cntrl task (cunting ut lud); and a shrt-term memry task (recalling the number f steps and the turning instructins). The Walk-and-Turn test is administered and interpreted in a standardized manner, i.e., the same way every time. Officers administering the Walk-and-Turn test bserve the suspect's perfrmance fr eight clues: can't balance during instructins; starts t sn; stps while walking; desn't tuch heel-t-te; steps ff line; uses arms t balance; lses balance n turn r turns incrrectly; and, takes the wrng number f steps. HS 178 R2/06 VII-5

145 Inability t cmplete the Walk-and-Turn test ccurs when the suspect: steps ff the line three r mre times; is in danger f falling; cannt d the test. Original research shws that if a suspect exhibits tw r mre f the clues, r cannt cmplete the test, the suspect's BAC is likely t be abve This criterin has been shwn t be accurate 68 percent f the time. ONE-LEG STAND The One-Leg Stand test als has been validated thrugh NHTSA's research prgram. It is a divided attentin test cnsisting f tw stages: Instructins Stage; and, Balance and Cunting Stage. In the Instructin Stage, the subject must stand with feet tgether, keep arms at sides, and listen t instructins. This divides the subject's attentin between a balancing task (maintaining a stance) and an infrmatin prcessing task (listening t and remembering instructins.) In the Balance and Cunting Stage, the subject must raise ne leg, either leg, with the ft apprximately six inches ff the grund, keeping raised ft parallel t the grund. While lking at the elevated ft, cunt ut lud in the fllwing manner: "ne thusand and ne", "ne thusand and tw", ne thusand and three until tld t stp. This divides the subject's attentin between balancing (standing n ne ft) and small muscle cntrl (cunting ut lud). The timing fr a thirty-secnd perid by the fficer is an imprtant part f the One-Leg Stand test. The riginal research has shwn that many impaired subjects are able t stand n ne leg fr up t 25 secnds, but that few can d s fr 30 secnds. One-Leg Stand is als administered and interpreted in a standardized manner. Officers carefully bserve the suspect's perfrmance and lk fr fur specific clues: sways while balancing; uses arms t balance; hps; puts ft dwn. HS 178 R2/06 VII-6

146 Inability t cmplete the One-Leg Stand test ccurs when the suspect: puts the ft dwn three r mre times, during the 30-secnd perid; cannt d the test. The riginal research shws that, when the suspect prduces tw r mre clues r is unable t cmplete the test, it is likely that the BAC is abve This criterin has been shwn t be accurate 65 percent f the time. PRELIMINARY BREATH TESTING The basic purpse f preliminary breath testing (PBT) is t demnstrate the assciatin f alchl with the bservable evidence f the suspect's impairment. The suspect's impairment is established thrugh sensry evidence: what the fficer sees, hears and smells. The PBT prvides the evidence that alchl is the chemical basis f that impairment by yielding an n-the-spt indicatin f the suspect's bld alchl cncentratin (BAC). The PBT prvides direct indicatin f the BAC level. It des nt indicate the level f the suspect's impairment. Impairment varies widely amng individuals with the same BAC level. Preliminary breath testing, like psychphysical testing, is a stage in the pre-arrest screening f a DWI suspect. Usually the suspect is nt yet under arrest when requested t submit t the preliminary breath test. The DWI incident remains at the investigative stage; the accusatry stage has nt yet begun. The PBT result is nly ne f many factrs the fficer cnsiders in determining whether the suspect shuld be arrested fr DWI. It shuld never be the sle basis fr a DWI arrest. The PBT result is an imprtant factr because it prvides direct indicatin f alchl impairment. All ther evidence, frm initial bservatin f the vehicle in peratin thrugh frmal psychphysical testing, indicates alchl impairment. ADVANTAGES OF PBT A PBT ffers several imprtant advantages fr DWI detectin. It may: crrbrate ther evidence by demnstrating that the suspicin f alchl impairment is cnsistent with the fficer's bservatins f the suspect's mental and physical impairment. cnfirm the fficer's wn judgment and help gain cnfidence in evaluating alchl impairment accurately, based n bservatins and psychphysical tests. (Many fficers experienced in DWI enfrcement find that they rely less and less n the PBT as their cnfidence in their wn pwers f detectin increases.) HS 178 R2/06 VII-7

147 disclse the pssibility f medical cmplicatins r impairment due t drugs ther than alchl. (The PBT can cnfirm r deny that alchl is the cause f the bserved impairment. Fr example, bserved psychphysical impairment cupled with a PBT result shwing a very lw BAC indicates an immediate need t investigate the pssibility that the suspect has ingested a drug ther than alchl r suffers frm a medical prblem.) help t establish prbable cause fr a DWI arrest. (The rle f the PBT in establishing prbable cause may be affected by the evidentiary value f PBT results in yur state. Cnsult yur specific PBT law, yur supervisr, r the lcal prsecutr fr clarificatin, if necessary.) LIMITATIONS OF PBT Preliminary breath testing may have bth evidentiary limitatins and accuracy limitatins. Evidentiary limitatins vary with specific laws. In sme states PBT results are admissible as evidence; in ther states they are nt admissible. Where the results are admissible, there may be differences in the weight r value they are given. Cnsult yur state PBT law, yur supervisr r yur lcal prsecutr, as necessary, fr clarificatin. PBT instruments have accuracy limitatins. Althugh all PBT instruments currently used by law enfrcement are reasnably accurate, they are subject t the pssibility f errr, especially if they are nt used prperly. There are factrs that can affect the accuracy f preliminary breath testing devices. Sme f these factrs tend t prduce "high" test results; thers tend t prduce "lw" results. There are tw cmmn factrs that tend t prduce high results n a PBT. Residual muth alchl. After a persn takes a drink, sme f the alchl will remain in the muth tissues. If the persn exhales sn after drinking, the breath sample will pick up sme f this left-ver muth alchl. In this case, the breath sample will cntain an additinal amunt f alchl and the test result will be higher than the true BAC. It takes apprximately 15 minutes fr the residual alchl t evaprate frm the muth. The nly sure way t eliminate this factr is t make sure the suspect des nt take any alchl fr at least 15 t 20 minutes befre cnducting a breath test. Remember, t, that mst muthwashes, breath sprays, cugh syrups, etc., cntain alchl and will prduce residual muth alchl. Therefre, it is always best nt t permit the suspect t put anything in their muth fr at least 15 t 20 minutes prir t testing. HS 178 R2/06 VII-8

148 Breath Cntaminants. Sme types f preliminary breath tests might react t certain substances ther than alchl. Fr example, substances such as ether, chlrfrm, acetne, acetaldehyde and cigarette smke cnceivably culd prduce a psitive reactin n certain devices. If s, the test wuld be cntaminated and its result wuld be higher than the true BAC. Nrmal characteristics f breath samples, such as halitsis, fd drs, etc., d nt affect accuracy. There are tw cmmn factrs that tend t prduce lw PBT results. Cling f the breath sample. If the captured breath sample is allwed t cl befre it is analyzed, sme f the alchl vapr in the breath may turn t liquid and precipitate ut f the sample. If that happens, the subsequent analysis f the breath sample will prduce a lw BAC result. The cmpsitin f the breath sample. Breath cmpsitin means the mixture f the tidal breath and alvelar breath. Tidal breath is breath frm the upper part f the lungs and the muth. Alvelar breath is deep lung breath. Breath testing shuld be cnducted n a sample f alvelar breath, btained by having the subject blw int the PBT instrument until all air is expelled frm the lungs. Radi frequency interference (RFI) can prduce either high r lw test results, r can prevent a breath test device frm prducing any result. Care shuld be exercised when utilizing a PBT arund radi equipment THE ARREST DECISION Yur arrest/n arrest decisin is the culminatin f the DWI detectin prcess. Yur decisin is based n all the evidence yu have accumulated during each detectin phase. PHASE ONE: initial bservatin f vehicle in mtin; bservatin f the stp. PHASE TWO: face-t-face bservatin and interview; bservatin f the exit. PHASE THREE: SFSTs; preliminary breath tests. Yur decisin invlves a careful review f each f the bservatins yu have made. HS 178 R2/06 VII-9

149 Cnduct a "mental summary" f the evidence cllected during vehicle in mtin, persnal cntact and pre-arrest screening. If all f the evidence, taken tgether, establishes prbable cause t believe that DWI has been cmmitted, yu shuld arrest the suspect fr DWI. Under n circumstances shuld yu charge the suspect with a lesser ffense instead f DWI if there is prbable cause t believe that DWI has been cmmitted. Any reductin f DWI t a lesser charge is the respnsibility f the prsecutr r judge. HS 178 R2/06 VII-10

150 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. The tw majr evidence gathering tasks f Phase Three are 2. The majr decisin in Phase Three is 3. The entire DWI detectin prcess culminates in 4. Divided attentin tests require the subject t HS 178 R2/06 VII-11

151 5. Amng the mental and physical capabilities a persn needs t drive safely are these fur: a. b. c. d. 6. The tw stages f the Walk-and-Turn are: a. b. 7. The tw stages f the One-Leg Stand are: a. b. 8. The purpse f PBT is 9. Tw factrs that prduce high results n a PBT are: a. b. 10. Tw factrs that prduce lw results n a PBT are: a. b. HS 178 R2/06 VII-12

152 SESSION VIII CONCEPTS AND PRINCIPLES OF THE STANDARDIZED FIELD SOBRIETY TESTS HS 178 R2/06

153 SESSION VIII CONCEPTS AND PRINCIPLES OF THE STANDARDIZED FIELD SOBRIETY TESTS Upn successfully cmpleting this sessin, the participant will be able t: Discuss the develpment and validity f the research and the standardized elements, clues and interpretatin f the three standardized field sbriety tests. Discuss the different types f nystagmus and their effects n the Hrizntal Gaze Nystagmus test. Discuss and prperly administer the three Standardized Field Sbriety Tests. Discuss and recgnize the clues f the three Standardized Field Sbriety Tests. Describe in a clear and cnvincing fashin and prperly recrd the results f the three Standardized Field Sbriety Tests n a standard nte taking guide. Discuss the limiting factrs f the three Standardized Field Sbriety Tests. CONTENTS SEGMENTS LEARNING ACTIVITIES A. Overview: Develpment and Validatin Instructr-Led Presentatin B. SFST Field Validatin Studies Instructr-Led Demnstratin C. Hrizntal Gaze Nystagmus Participant Practice Sessin & Demnstratin D. Vertical Gaze Nystagmus E. Walk-and-Turn F. Cmbining the Clues f the Hrizntal Gaze Nystagmus and Walk-and-Turn G. One-Leg Stand H. Limitatins f the Three Tests I. Taking Field Ntes n the Standardized Field Sbriety Tests HS 178 R2/06

154 OVERVIEW OF SFST RESEARCH AND DEVELOPMENT 1. Fr many years law enfrcement fficers have utilized field sbriety tests t determine the impairment f a persn s driving due t alchl influence. The perfrmance f the persn n thse field sbriety tests was used by the fficer t develp prbable cause fr arrest and as evidence in curt. A wide variety f field sbriety tests existed and there was a need t develp a battery f standardized valid tests. 2. Beginning in late 1975, extensive scientific research studies were spnsred by NHTSA thrugh a cntract with the Suthern Califrnia Research Institute (SCRI) t determine radside field sbriety tests were the mst accurate. SCRI published the fllwing three reprts: Califrnia: 1977 (Lab) Califrnia: 1981 (Lab and Field) Maryland, D.C., V.A., N.C., 1983 (Field) 3. SCRI traveled t law enfrcement agencies thrughut the United States t select the mst cmmnly used field sbriety tests. Six tests were used in the initial stages f this study. 4. Labratry research indicated that three f these tests, when administered in a standardized manner, were a highly accurate and reliable battery f tests fr distinguishing BACs abve 0.10: Hrizntal Gaze Nystagmus (HGN) Walk-and-Turn (WAT) One-Leg Stand (OLS) 5. NHTSA analyzed the labratry test data and fund: HGN, by itself, was 77% accurate WAT, by itself, was 68% accurate OLS, by itself, was 65% accurate By cmbining HGN and WAT an 80% accuracy can be achieved. 6. The final phase f this study was cnducted as a field validatin. Standardized, practical and effective prcedures were develped The tests were determined t discriminate in the field, as well as in the labratry. HS 178 R2/06 VIII-1

155 7. The three standardized test were fund t be highly reliable in identifying subjects whse BACs were abve The results f the study unmistakably validated the SFSTs. SFST VALIDATION STUDIES 1. Three SFST validatin studies were undertaken between 1995 and 1998: Clrad Flrida San Dieg The Clrad SFST validatin study was the first full field study that utilized law enfrcement persnnel experienced in the use f SFSTs. The initial study utilized nly a few experienced fficers in DWI enfrcement in bth a labratry setting and field setting. Crrect arrests decisins were made 93% f the time based n the 3-test battery (HGN, WAT, OLS). Substantially higher than the initial study results. 3. The Flrida SFST field validatin study was undertaken in rder t answer the questin f whether SFSTs are valid and reliable indices f the presence f alchl when used under present day traffic and law enfrcement cnditins. Crrect decisins t arrest were made 95% f the time based n the 3-test battery (HGN, WAT, OLS). This is the third SFST field validatin study that has been undertaken. Each has shwn that the SFST 3-test battery is the nly scientifically validated and reliable methd fr discriminating between impaired and unimpaired drivers. 4. The San Dieg SFST validatin field study was undertaken because f the natinwide trend twards lwer the BAC limits t The questin t be answered was des SFST discriminate at BAC s belw 0.10". Crrect arrest decisins were made 91% f the time based n the 3-test battery (HGN, WAT, OLS) at the 0.08 level and abve. HS 178 R2/06 VIII-2

156 The results f this study prvide a clear evidence f the validity f the 3-test battery. T supprt arrest decisins at abve r belw 0.08, it strngly suggests that the SFSTs als accurately discriminate BACs at 0.04 and abve. OVERVIEW OF NYSTAGMUS Nystagmus Nystagmus is defined as an invluntary jerking f the eyes. Alchl and certain ther drugs cause Hrizntal Gaze Nytagmus. Categries f Nystagmus There are three general categries f nystagmus: 1. Vestibular Nystagmus is caused by mvement r actin t the vestibular system. A. Types f vestibular nystagmus: Rtatinal Nystagmus ccurs when the persn is spun arund r rtated rapidly, causing the fluid in the inner ear t be disturbed. If it were pssible t bserve the eyes f a rtating persn, they wuld be seen t jerk nticeably. Pst Rtatinal Nystagmus is clsely related t rtatinal nystagmus: when the persn stps spinning, the fluid in the inner ear remains disturbed fr a perid f time, and the eyes cntinue t jerk. Calric Nystagmus ccurs when fluid mtin in the canals f the vestibular system is stimulated by temperature as by putting warm water in ne ear and cld in the ther. Psitinal Alchl Nystagmus (PAN) ccurs when a freign fluid, such as alchl, that alters the specific gravity f the bld is in unequal cncentratins in the bld and the vestibular system. 2. Nystagmus can als result directly frm neural activity: Optkinetic Nystagmus ccurs when the eyes fixate n an bject that suddenly mves ut f sight, r when the eyes watch sharply cntrasting mving images. HS 178 R2/06 VIII-3

157 Examples f ptkinetic nystagmus include watching strbe lights, rtating lights, r rapidly mving traffic in clse prximity. The Hrizntal Gaze Nystagmus test will nt be influenced by ptkinetic nystagmus when administered prperly. Physilgical Nystagmus is a natural nystagmus that keeps the sensry cells f the eye frm tiring. It is the mst cmmn type f nystagmus. It happens t all f us, all the time. This type f nystagmus prduces extremely minr tremrs r jerks f the eyes. These tremrs are generally t small t be seen with the naked eye. Physilgical nystagmus will have n impact n ur Standardized Field Sbriety Tests, because its tremrs are generally invisible. Gaze Nystagmus ccurs as the eyes mve frm the center psitin. Gaze nystagmus is separated int three types: (1) Hrizntal Gaze Nystagmus ccurs as the eyes mve t the side. It is the bservatin f the eyes fr Hrizntal Gaze Nystagmus that prvides the first and mst accurate test in the Standardized Field Sbriety Test battery. Althugh this type f nystagmus is mst accurate fr determining alchl impairment, its presence may als indicate use f certain ther drugs. (2) Vertical Gaze Nystagmus is an invluntary jerking f the eyes (up and dwn) which ccurs when the eyes gaze upward at maximum elevatin. The presence f this type f nystagmus is assciated with high dses f alchl fr that individual and certain ther drugs. The drugs that cause Vertical Gaze Nystagmus are the same nes that cause Hrizntal Gaze Nystagmus. Nte: There is n drug that will cause Vertical Gaze Nystagmus that des nt cause Hrizntal Gaze Nystagmus. If Vertical Gaze Nystagmus is present and Hrizntal Gaze Nystagmus is nt, it culd be a medical cnditin. (3) Resting Nystagmus is referred t as a jerking f the eyes as they lk straight ahead. Its presence usually indicates a pathlgy r high dses f a Dissciative Anesthetic drug such as PCP. If detected, take precautins. (OFFICER SAFETY.) 3. Nystagmus may als be caused by certain pathlgical disrders. They include brain tumrs and ther brain damage r sme diseases f the inner ear. These pathlgical disrders ccur in very few peple and in even fewer drivers. HS 178 R2/06 VIII-4

158 Medical Impairment The examinatins that yu can cnduct t assess pssible medical impairment include: Pupil size Resting Nystagmus Tracking ability PROCEDURES Prcedures t Assess Pssible Medical Impairment Prir t administratin f HGN, the eyes are checked fr equal pupil size, resting nystagmus, and equal tracking (can they fllw an bject tgether). If the eyes d nt track tgether, r if the pupils are nticeably unequal in size, the chance f medical disrders r injuries causing the nystagmus is present. Prcedures f Hrizntal Gaze Nystagmus Testing: The Three Clues The test yu will use at radside is "Hrizntal Gaze Nystagmus" -- an invluntary jerking f the eyes ccurring as the eyes gaze tward the side. Sme jerking will be seen if the eyes are mved far enugh t the side. 1. The Lack f Smth Pursuit (Clue Number One) - The eyes can be bserved t jerk r "bunce" as they fllw a smthly mving stimulus, such as a pencil r penlight. The eyes f an unimpaired persn will fllw smthly, i.e., a marble rlling acrss a smth pane f glass, r windshield wipers mving acrss a wet windshield. 2. Distinct and Sustained Nystagmus At Maximum Deviatin (Clue Number Tw) - Distinct and sustained nystagmus will be evident when the eye is held at maximum deviatin fr a minimum f fur secnds. Peple exhibit slight jerking f the eye at maximum deviatin, even when unimpaired, but this will nt be evident r sustained fr mre than a few secnds. When impaired by alchl, the jerking will be larger, mre prnunced, sustained fr mre than fur secnds, and easily bservable. 3. Onset f Nystagmus Prir T 45 Degrees (Clue Number Three) - The pint at which the eye is first seen jerking. If the jerking begins prir t 45 degrees it is evident that the persn has a BAC abve 0.08, as shwn by recent research. The higher the degree f impairment, the sner the nystagmus will be bservable. HS 178 R2/06 VIII-5

159 Estimating a 45-Degree Angle It is imprtant t knw hw t estimate a 45-degree angle. Hw far yu psitin the stimulus frm the suspect s nse is a critical factr in estimating a 45-degree angle. (i.e., If the stimulus is held 12" in frnt f the suspect s nse, it shuld be mved 12" t the side t reach 45 degrees. Likewise, if the stimulus is held 15" in frnt f the suspect s nse, it shuld be mved 15" t the side t reach 45 degrees.) Fr practice, a 45-degree template can be prepared by making a 15"-square cardbard and cnnecting its ppsite crners with a diagnal line. T use this device, hld it up s that the persn's nse is abve the diagnal line. Be certain that ne edge f the template is centered n the nse and perpendicular t (r, at right angles t) the face. Have the persn yu are examining fllw a penlight r sme ther bject until suspect is lking dwn the 45-degree diagnal. Nte the psitin f the eye. With practice, yu shuld be able t recgnize this angle withut using the template. Specific Prcedures If the suspect is wearing eyeglasses, have them remved. Give the suspect the fllwing instructins frm a safe psitin. (FOR OFFICER SAFETY KEEP YOUR WEAPON AWAY FROM THE SUSPECT): "I am ging t check yur eyes." "Keep yur head still and fllw this stimulus with yur eyes nly." "Keep fllwing the stimulus with yur eyes until I tell yu t stp." Psitin the stimulus apprximately inches frm the suspect's nse and slightly abve eye level. Check t see that bth pupils are equal in size. If they are nt, this may indicate a head injury. Yu may bserve Resting Nystagmus at this time, then check the suspect's eyes fr the ability t track tgether. Mve the stimulus smthly acrss the suspect's entire field f visin. Check t see if the eyes track the stimulus tgether r ne lags behind the ther. If the eyes dn't track tgether it culd indicate a pssible medical disrder, injury, r blindness. HS 178 R2/06 VIII-6

160 Check the suspect's left eye by mving the stimulus t yur right. Mve the stimulus smthly, at a speed that requires apprximately tw secnds t bring the suspect's eye as far t the side as it can g. While mving the stimulus, lk at the suspect's eye and determine whether it is able t pursue smthly. Nw, mve the stimulus all the way t the left, back acrss suspect's face checking if the right eye pursues smthly. Mvement f the stimulus shuld take apprximately tw secnds ut and tw secnds back fr each eye. Repeat the prcedure. Eye Lking Straight Ahead 45 O After yu have checked bth eyes fr lack f smth pursuit, check the eyes fr distinct and sustained nystagmus at maximum deviatin beginning with the suspect's left eye. Simply mve the bject t the suspect's left side until the eye has gne as far t the side as pssible. Usually, n white will be shwing in the crner f the eye at maximum deviatin. Hld the eye at that psitin fr a minimum f fur secnds, and bserve the eye fr distinct and sustained nystagmus. Mve the stimulus all the way acrss the suspect's face t check the right eye hlding that psitin fr a minimum f fur secnds. Repeat the prcedure. Nte: Fatigue Nystagmus. This type f nystagmus may begin if a subject s eyes are held at maximum deviatin fr mre than 30 secnds. Next, check fr nset f nystagmus prir t 45 degrees. Start mving the stimulus twards the right (suspect's left eye) at a speed that wuld take apprximately fur secnds fr the stimulus t reach the edge f the suspect's shulder. Watch the eye carefully fr any sign f jerking. When yu see it, stp and verify that the jerking cntinues. Nw, mve the stimulus t the left (suspect's right eye) at a speed that wuld take apprximately fur secnds fr the stimulus t reach the edge f the suspect's shulder. Watch the eye carefully fr any sign f jerking. When yu see it, stp and verify that the jerking cntinues. Repeat the prcedure. NOTE: It is imprtant t use the full fur secnds when checking fr nset f nystagmus. If yu mve the stimulus t fast, yu may g past the pint f nset r miss it altgether. If the suspect's eyes start jerking befre they reach 45 degrees, check t see that sme white f the eye is still shwing n the side clsest t the ear. If n white f the eye is shwing, yu either have taken the eye t far t the side (that is mre than 45 degrees) r the persn has unusual eyes that will nt deviate very far t the side. ADMINISTRATIVE PROCEDURES 1. CHECK FOR EYEGLASSES 2. VERBAL INSTRUCTIONS 3. POSITION STIMULUS (12-15 INCHES) 4. EQUAL PUPIL SIZE AND RESTING NYSTAGMUS 5. TRACKING 6. LACK OF SMOOTH PURSUIT 7. DIST. & SUSTAINED MAX. DEV. 8. ONSET OF NYSTAGMUS PRIOR TO TOTAL THE CLUES 10. CHECK FOR VERTICAL GAZE NYSTAGMUS HS 178 R2/06 VIII-7

161 NOTE: Nystagmus may be due t causes ther than alchl. These ther causes include seizure medicatins and sme ther drugs. A large disparity between the perfrmance f the right and left eye may indicate a medical cnditin. Test Interpretatin Yu shuld lk fr three clues f nystagmus in each eye. 1. The eye cannt fllw a mving bject smthly. 2. Nystagmus is distinct and sustained when the eye is held at maximum deviatin fr a minimum f fur secnds. 3. The angle f nset f nystagmus is prir t 45 degrees. Based n the riginal research, if yu bserve fur r mre clues it is likely that the suspect's BAC is abve Using this criterin yu will be able t classify abut 77% f yur suspects accurately. This was determined during labratry and field testing and helps yu weigh the varius field sbriety tests in this battery as yu make yur arrest decisin. Vertical Gaze Nystagmus The Vertical Gaze Nystagmus test is simple t administer. During the Vertical Gaze Nystagmus test, lk fr jerking as the eyes mve up and are held fr apprximately fur secnds at maximum elevatin. 1. Psitin the stimulus hrizntally, abut inches in frnt f the suspect's nse. 2. Instruct the suspect t hld the head still, and fllw the bject with the eyes nly. 3. Raise the bject until the suspect's eyes are elevated as far as pssible. 4. Hld fr apprximately fur secnds. 5. Watch clsely fr evidence f jerking. Hrizntal and Vertical Gaze Nystagmus can be bserved directly and des nt require special equipment. Yu will need a cntrasting stimulus fr the suspect t fllw with their eyes. This can be the tip f yur index finger, penlight, r pen. The stimulus used shuld be held slightly abve eye level, s that the eyes are wide pen when they lk directly at it. It shuld be held apprximately inches in frnt f the nse. Remain aware f yur psitin in relatin t the suspect at all times. HS 178 R2/06 VIII-8

162 OFFICER SAFETY IS THE NUMBER ONE PRIORITY ON ANY TRAFFIC STOP. Prcedures fr Walk-and-Turn Testing 1. Instructins Stage: Initial Psitining and Verbal Instructins Fr standardizatin in the perfrmance f this test, have the suspect assume the heel-t-te stance by giving the fllwing verbal instructins, accmpanied by demnstratins: "Place yur left ft n the line (real r imaginary). Demnstrate. "Place yur right ft n the line ahead f the left ft, with heel f right ft against te f left ft." Demnstrate. "Place yur arms dwn at yur sides." Demnstrate. "Maintain this psitin until I have cmpleted the instructins. D nt start t walk until tld t d s." "D yu understand the instructins s far?" (Make sure suspect indicates understanding.) 2. Demnstratins and Instructins fr the Walking Stage Explain the test requirements, using the fllwing verbal instructins, accmpanied by demnstratins: "When I tell yu t start, take nine heel-t-te steps, turn, and take nine heel-t-te steps back." (Demnstrate 3 heel-t-te steps.) "When yu turn, keep the frnt ft n the line, and turn by taking a series f small steps with the ther ft, like this." (Demnstrate). "While yu are walking, keep yur arms at yur sides, watch yur feet at all times, and cunt yur steps ut lud." "Once yu start walking, dn't stp until yu have cmpleted the test." "D yu understand the instructins?" (Make sure suspect understands.) "Begin, and cunt yur first step frm the heel-t-te psitin as 'One.'" HS 178 R2/06 VIII-9

163 3. Test Interpretatin Yu may bserve a number f different behavirs when a suspect perfrms this test. Original research demnstrated that the behavirs listed belw are likely t be bserved in smene with a BAC abve Lk fr the fllwing clues each time this test is given: A. Cannt keep balance while listening t the instructins. Tw tasks are required at the beginning f this test. The suspect must balance heel-t-te n the line, and at the same time, listen carefully t the instructins. Typically, the persn wh is impaired can d nly ne f these things. The suspect may listen t the instructins, but nt keep balance. Recrd this clue if the suspect des nt maintain the heel-t-te psitin thrughut the instructins. (Feet must actually break apart.) D nt recrd this clue if the suspect sways r uses the arms t balance but maintains the heel-t-te psitin. B. Starts befre the instructins are finished. The impaired persn may als keep balance, but nt listen t the instructins. Since yu specifically instructed the suspect nt t start walking "until I tell yu t begin," recrd this clue if the suspect des nt wait. C. Stps while walking. The suspect pauses fr several secnds. D nt recrd this clue if the suspect is merely walking slwly. D. Des nt tuch heel-t-te. The suspect leaves a space f mre than ne-half inch between the heel and te n any step. E. Steps ff the line. The suspect steps s that ne ft is entirely ff the line. HS 178 R2/06 VIII-10

164 F. Uses arms t balance. The suspect raises ne r bth arms mre than 6 inches frm the sides in rder t maintain balance. G. Imprper turn. The suspect remves the frnt ft frm the line while turning. Als recrd this clue if the suspect has nt fllwed directins as demnstrated, i.e., spins r pivts arund. H. Incrrect number f steps. Recrd this clue if the suspect takes mre r fewer than nine steps in either directin. Nte: If suspect can't d the test, recrd bserved clues and dcument the reasn fr nt cmpleting the test, e.g. suspect s safety. If the suspect has difficulty with the test (fr example, steps ff the line), cntinue frm that pint, nt frm the beginning. This test may lse its sensitivity if it is repeated several times. Observe the suspect frm a safe distance and limit yur mvement which may distract the suspect during the test. Always cnsider fficer safety. Based n riginal research, if the suspect exhibits tw r mre clues n this test r fails t cmplete it, classify the suspect's BAC as abve Using this criterin, yu will be able t accurately classify 68% f yur suspects. 4. Test Cnditins Walk-and-Turn test requires a designated straight line, and shuld be cnducted n a reasnably dry, hard, level, nnslippery surface. There shuld be sufficient rm fr suspects t cmplete nine heel-t-te steps. Nte: Recent field validatin studies have indicated that varying envirnmental cnditins have nt affected a suspect s ability t perfrm this test. The riginal research indicated that individuals ver 65 years f age, back, leg r inner ear prblems had difficulty perfrming this test. Individuals wearing heels mre than 2 inches high shuld be given the pprtunity t remve their shes. 5. Cmbined Interpretatin f Hrizntal Gaze Nystagmus and Walk-and-Turn Tests Based n the riginal research, cmbining fur r mre clues f HGN and tw r mre clues f the Walk-and-Turn, suspects can be classified as abve 0.10 BAC 80% f the time. HS 178 R2/06 VIII-11

165 Prcedures fr One-Leg Stand Testing 1. Instructins Stage: Initial Psitining and Verbal Instructins Initiate the test by giving the fllwing verbal instructins, accmpanied by demnstratins. "Please stand with yur feet tgether and yur arms dwn at the sides, like this." (Demnstrate) "D nt start t perfrm the test until I tell yu t d s." "D yu understand the instructins s far?" (Make sure suspect indicates understanding.) 2. Demnstratins and Instructins fr the Balance and Cunting Stage Explain the test requirements, using the fllwing verbal instructins, accmpanied by demnstratins: "When I tell yu t start, raise ne leg, either leg, with the ft apprximately six inches ff the grund, keeping yur raised ft parallel t the grund. (Demnstrate ne leg stance.) "Yu must keep bth legs straight, arms at yur side. "While hlding that psitin, cunt ut lud in the fllwing manner: ne thusand and ne, ne thusand and tw, ne thusand and three, until tld t stp. (Demnstrate a cunt, as fllws: "ne thusand and ne, ne thusand and tw, ne thusand and three, etc." Officer shuld nt lk at his ft when cnducting the demnstratin - OFFICER SAFETY.) "Keep yur arms at yur sides at all times and keep watching the raised ft." "D yu understand?" (Make sure suspect indicates understanding.) "G ahead and perfrm the test." (Officer shuld always time the 30 secnds. Test shuld be discntinued after 30 secnds.) Observe the suspect frm a safe distance. If the suspect puts the ft dwn, give instructins t pick the ft up again and cntinue cunting frm the pint at which the ft tuched the grund. If the suspect cunts very slwly, terminate the test after 30 secnds. HS 178 R2/06 VIII-12

166 3. Test Interpretatin Yu may bserve a number f different behavirs when a suspect perfrms this test. The riginal research fund the behavirs listed belw are the mst likely t be bserved in smene with a BAC abve Lk fr the fllwing clues each time the One-Leg Stand test is administered. A. The suspect sways while balancing. This refers t side-t-side r back-andfrth mtin while the suspect maintains the ne-leg stand psitin. B. Uses arms fr balance. Suspect mves arms 6 r mre inches frm the side f the bdy in rder t keep balance. C. Hpping. Suspect is able t keep ne ft ff the grund, but resrts t hpping in rder t maintain balance. D. Puts ft dwn. The suspect is nt able t maintain the ne-leg stand psitin, putting the ft dwn ne r mre times during the 30-secnd cunt. Nte: If suspect can't d the test, recrd bserved clues and dcument the reasn fr nt cmpleting the test, e.g. suspect s safety. Remember that time is critical in this test. The riginal research has shwn a persn with a BAC abve 0.10 can maintain balance fr up t 25 secnds, but seldm as lng as 30. Based n riginal research, if an individual shws tw r mre clues r fails t cmplete the One-Leg Stand, there is a gd chance the BAC is abve Using that criterin, yu will accurately classify 65% f the peple yu test as t whether their BAC's are abve Observe the suspect frm a safe distance and remain as mtinless as pssible during the test s as nt t interfere. If the suspect puts the ft dwn, give instructins t pick the ft up again and cntinue cunting frm the pint at which the ft tuched the grund. If the suspect cunts very slwly, terminate the test after 30 secnds. 4. Test Cnditins One-Leg Stand requires a reasnably dry, hard, level, and nn-slippery surface. Suspect's safety shuld be cnsidered at all times. HS 178 R2/06 VIII-13

167 The riginal research indicated that certain individuals ver 65 years f age, back, leg r inner ear prblems, r peple wh are verweight by 50 r mre punds had difficulty perfrming this test. Individuals wearing heels mre than 2 inches high shuld be given the pprtunity t remve their shes. 5. Taking Field Ntes n Suspects' Perfrmance f Field Sbriety Tests Fr purpses f the arrest reprt and curtrm testimny, it is nt enugh t recrd the ttal number f clues n the three tests. The number f clues is imprtant t the plice fficer in the field because it helps determine whether there is prbable cause t arrest. But t secure a cnvictin, mre descriptive evidence is needed. The fficer must be able t describe hw the suspect perfrmed n the tests, and exactly what the suspect did. The standard nte taking guide prvided in this Manual is designed t help yu develp a clear descriptin f the suspect's perfrmance n the tests. 6. Taking Field Ntes n The Eye Prcedures First, have subject remve glasses. The sectin fr Medical Assessment appears at the bttm f the guide s frnt page. Equal Pupils 9 Yes 9 N Equal Tracking 9 Yes 9 N Vertical Nystagmus 9 Yes 9 N Other (i.e., Resting Nystagmus) Check Yes r N bx fr equal pupil size. Check Yes r N bx fr equal tracking. In the sectin labeled ther, recrd any facts, circumstances, cnditins, r bservatins that may be relevant t this prcedures (i.e., Resting Nystagmus). The sectin n the Hrizntal Gaze Nystagmus test appears n the bttm f the guide's frnt side. HORIZONTAL GAZE NYSTAGMUS k LACK OF SMOOTH PURSUIT k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES LEFT RIGHT Cmplete the entire test fr bth eyes, writing "yes" r "n" fr each nystagmus clue. HS 178 R2/06 VIII-14

168 Write "yes" if the clue is present; Write "n" if the clue is nt present. In the sectin labeled "ther," recrd any facts, circumstances, cnditins r bservatins that may be relevant t this test. Examples f additinal evidence f impairment emerging during nystagmus test: - suspect unable t keep head still; - suspect swaying nticeably; - suspect utters incriminating statements. Examples f cnditins that may interfere with suspect's perfrmance f the Hrizntal Gaze Nystagmus test: - wind, dust, etc. irritating suspect's eyes; - visual r ther distractins impeding the test (always face suspect away frm rtating lights, strbe lights and traffic passing in clse prximity). 7. Taking Field Ntes n Walk-and-Turn Testing The sectin n the Walk-and-Turn test appears at the tp f the guide's back side. WALK AND TURN CANNOT KEEP BALANCE STARTS TOO SOON FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: HS 178 R2/06 VIII-15

169 The first tw clues, "cannt keep balance" and "starts t sn" apply nly during the instructins stage f the test. Recrd the number f times each f thse clues appear. Fr example, if the suspect's feet "break apart" frm the heel-t-te stance twice during the instructins stage, write "2" in the bx alngside the "cannt keep balance" clue. Similarly, if the suspect never "starts t sn," write "0" in that bx. Nte: Actual steps taken is fr scring purpses nly. Wrng number f steps is the validated clue. Dn't leave bxes blank. If a particular clue never shws up, write "0" in the crrespnding bx. Recrd the next five clues separately fr the walk dwn the line, and then up the line. A. If a suspect stps walking, recrd it by drawing a vertical line acrss the te f the step at which the stp ccurred. D this fr the first as well as the secnd nine steps. Place the letter S at bttm f the vertical line t indicate stps walking. WALK AND TURN CANNOT KEEP BALANCE STARTS TOO SOON FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: HS 178 R2/06 VIII-16

170 B. If suspect fails t tuch heel-t-te, recrd hw many times this happens. Draw a vertical line acrss the te f the step at which the miss ccurred. Place the letter M at the tp f the vertical line t indicate missed heel t te. C. If suspect steps ff the line while walking, recrd it by drawing a line frm the apprpriate ft print at an angle in the directin in which the ft stepped. D it fr each nine steps. D. If suspect uses arms t balance, give sme indicatin f hw ften r hw lng this happens. Example: suspect raised arms frm sides three times; place a check fr each ccurrence in apprpriate bx. Example: suspect held arms away frm sides during 3 thrugh 7; place a check fr each ccurrence in apprpriate bx. Example: suspect "flapped" arms cntinuusly; make a nte. E. Recrd the actual number f steps taken by suspect in each directin. Fr the next pint, "imprper turn," recrd a descriptin f the turn. If yu nte that the suspect "cannt perfrm test," indicate explicitly why yu did s. Example: "ff line three times;" Example: "staggered six steps t right, nearly fell;" Example: "fear f injury." At end f the test, examine each factr and determine hw many clues have been recrded. Remember, each clue may appear several times, but still nly cnstitutes ne clue. In the sectin labeled "ther," recrd any facts, circumstances, cnditins r bservatins that may be relevant t this test. Examples f additinal evidence f impairment during Walk-and-Turn test: - suspect verbally miscunts steps; - suspect utters incriminating statements. HS 178 R2/06 VIII-17

171 Examples f cnditins that may interfere with suspect's perfrmance f the Walk-and-Turn test: - wind/weather cnditins; - suspect's age, weight; - suspect's ftwear. 8. Taking Field Ntes n the Cmbined Interpretatin f Nystagmus and Walkand-Turn By cmbining fur r mre clues f HGN with tw r mre clues f the WAT test, suspects can be crrectly classified as abve 0.10 BAC 80% f the time. 9. Taking Field Ntes n One-Leg Stand Testing ONE LEG STAND The sectin n the One-Leg Stand test appears midway dwn the page. By recrding when things happen as well as what happens, yu will be able t prepare a mre descriptive arrest reprt. Yu will place check marks in r near the small bxes t indicate hw many times yu bserved each f the clues. Yu will d this separately fr the test n the left leg (L) r n the right leg (R). In additin, if the Type f Ftwear suspect puts the ft dwn during the test, yu will recrd when it happened (write the cunt n new nte guide). Fr example, when standing n the left leg the suspect lwered the right ft at a cunt f "ne thusand and thirteen", and again at "ne thusand and twenty". Yur diagram shuld lk like the sketch t the left. Yu must als pay attentin t the suspect's general appearance and behavir while the test is being perfrmed. At end f the test, examine each factr and determine hw many distinct clues have appeared. L R Type f Ftwear Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. HS 178 R2/06 VIII-18

172 IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT'S PERFORMANCE THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED. At end f the test, examine each factr and determine hw many clues have been recrded. Remember, each clue may appear several times, but still nly cnstitutes ne clue. HS 178 R2/06 VIII-19

173 TEST YOUR KNOWLEDGE INSTRUCTIONS: Cmplete the fllwing sentences. 1. Walk-and-Turn is an example f field sbriety test. 2. The Walk-and-Turn requires a real r imaginary line and 3. During the stage f the Walk-and-Turn, the suspect is required t cunt ut lud. 4. Per the riginal research, the Walk-and-Turn can determine whether a suspect's BAC is abve r belw 0.10, percent f the time. 5. In the Walk-and-Turn test, a suspect wh steps ff the line during the first 9 steps and nce again during the secnd 9 steps and wh raises arms fr balance twice during the secnd nine steps has prduced distinct clue(s). 6. The Walk-and-Turn may nt be valid when administered t persns wh are ver years f age. 7. During the stage f the One-Leg Stand the suspect must maintain balance fr 30 secnds. 8. The One-Leg Stand requires that the suspect keep the ft elevated fr secnds. 9. Per riginal research, the One-Leg Stand can determine whether a suspect's BAC is abve r belw 0.10, percent f the time. 10. In the One-Leg Stand test, a suspect wh sways has exhibited clue(s). 11. In the One-Leg Stand test, a suspect wh raises arms, hps, and puts ft dwn has exhibited clue(s). 12. The maximum number f clues fr Hrizntal Gaze Nystagmus that can appear in ne eye is. 13. Per riginal research, the HGN test can determine whether a suspect's BAC is abve 0.10, percent f the time. 14. The third clue f HGN is an nset f nystagmus prir t degrees. HS 178 R2/06 VIII-20

174 ATTACHMENT(S)

175 SCIENTIFIC PUBLICATIONS AND RESEARCH REPORTS ADDRESSING NYSTAGMUS HS 178 R2/06 1 ATTACHMENT A 1. Aschan, Bergstedt, Gldberg & Laurell, Psitinal Nystagmus in Man During and After Alchl Intxicatin, 17 Q.J. OF STUD. ON ALCOHOL, Sept. 1956, at 381. Study distinguishing tw types f alchl-induced nystagmus, PAN (psitinal alchlic nystagmus) I and PAN II, fund intensity f PAN I, with nset abut ne-half hur after alchl ingestin, was prprtinal t amunt f alchl taken. 2. Aschan, Different Types f Alchl Nystagmus, 140 ACTA OTOLARYNGOL SUPP. 69 (Sweden 1958) ("Frm a medic-legal viewpint, simultaneus recrding f AGN (Alchl Gaze Nystagmus) and PAN (psitinal alchlic nystagmus) shuld be f value, since it will shw in which phase the patient's bld alchl curve is..."). 3. Rashbass, The Relatinship Between Saccadic and Smth Tracking Eye Mvements, 159 J. PHYSIOL. 326 (1961) (barbiturate drugs interfere with smth tracking eye mvement). 4. Gldberg, Effects and After-Effects f Alchl, Tranquilizers and Fatigue n Ocular Phenmena, ALCOHOL AND ROAD TRAFFIC 123 (1963) (f different types f nystagmus, alchl gaze nystagmus is the mst easily bserved). 5. Murphree, Price & Greenberg, Effect f Cngeners in Alchl Beverages n the Incidence f Nystagmus, 27 Q.J. OF STUD. ON ALCOHOL, June 1966, at 201 (psitinal nystagmus is a cnsistent, sensitive indicatr f alchl intxicatin). 6. Fregly, Bergstedt & Graybiel, Relatinships Between Bld Alchl, Psitinal Alchl Nystagmus and Pstural Equilibrium, 28 Q.J. OF STUD. ON ALCOHOL, March 1967, at 11, 17 (declines frm baseline perfrmance levels crrelated with peak PAN I respnses and peak bld alchl levels). 7. Misi, Hishida & Maeba, Diagnsis f Alchl Intxicatin by the Optkinetic Test, 30 Q.J. OF STUD. ON ALCOHOL 1 (March-June 1969) (ptkinetic nystagmus, cular adaptatin t mvement f bject befre eyes, can als be used t detect central nervus system impairment caused by alchl. Optkinetic nystagmus is inhibited at BAC f nly.051 percent and can be detected by ptkinetic nystagmus test. Befre dsage subjects culd fllw a speed f 90 degrees per secnd; after, less than 70 degrees per secnd).

176 8. Nathan, Zare, Ferneau & Lwenstein, Effects f Cngener Differences in Alchl Beverages n the Behavir f Alchlics, 5 Q.J. OF STUD. ON ALCOHOL SUPP., May 1970, at 87 (abstract available n DIALOG, file 11: Psychinf ) (incidence f nystagmus and ther nystagmid mvements increased with duratin f drinking). 9. Osterveld, Meineri & Palucci, Quantitative Effect f Linear Acceleratin n Psitinal Alchl Nystagmus, 45 AEROSPACE MEDICINE, July 1974, at 695 (G-lading brings abut PAN even when subject has nt ingested alchl; hwever when subjects ingested alchl, n PAN was fund when subjects were in supine psitin, even with G-frce at 3). 10. Penttila, Lehti & Lnnqvist, Nystagmus and Disturbances in Psychmtr Functins Induced by Psychtrpic Drug Therapy, 1974 PSYCHIAT. FENN. 315 (abstract available n DIALOG, file 173: Embase ) (psychtrpic drugs induce nystagmus). 11. Wilkinsn, Kime & Purnell, Alchl and Human Eye Mvement, 97 BRAIN 785 (1974) (ral dse f ethyl alchl impaired smth pursuit eye mvement f all human subjects). 12. Aschan & Bergstedt, Psitinal Alchlic Nystagmus in Man Fllwing Repeated Alchl Dses, 80 ACTA OTOLARYNGOL SUPP. 330 (Sweden 1975) (abstract available n DIALOG, file 173: Embase ) (degree f intxicatin influences bth PAN I and PAN II). 13. Lehti, The Effect f Bld Alchl Cncentratin n the Onset f Gaze Nystagmus, 136 BLUTALKOHOL 414 (West Germany 1976) (abstract available n DIALOG, file 173: Embase ) (nted a statistically highly significant crrelatin between BAC and the angle f nset f nystagmus with respect t the midpint f the field f visin). 14. Zy, Medic-legal and Psychiatric Studies n the Alchl Intxicated Offender, 30 JAPANESE J. OF LEGAL MED., N. 3, 1976, at 169 (abstract available n DIALOG, file 21: Natinal Criminal Justice Reference Service ) (recmmends use f nystagmus test t determine smatic and mental symptms f alchl intxicatin as well as BAC). 15. Burns & Mskwitz, Psychphysical Tests fr DWI Arrest, U.S. Dept. f Transprtatin Rep. N. DOT-HS (1977) (recmmended the three-test battery develped by SCRI (ne-leg stand, walk and turn, and HGN) t aid fficers in discriminating BAC level). HS 178 R2/06 2

177 16. Umeda & Sakata, Alchl and the Oculmtr System, 87 ANNALS OF OTOLOGY, RHINOLOGY & LARYNGOLOGY, May-June 1978, at 392 (in vlunteers whse "calric eye tracking pattern" (CETP) was nrmal befre alchl intake, influence f alchl n culmtr system appeared cnsistently in the fllwing rder: (1) abnrmality f CETP, (2) psitinal alchl nystagmus, (3) abnrmality f eye tracking pattern, (4) alchl gaze nystagmus). 17. Balh, Sharma, Mskwitz & Griffith, Effect f Alchl and Marijuana n Eye Mvements, 50 AVIAT. SPACE ENVIRON. MED., Jan 1979, at 18 (abstract available n DIALOG, file 153: Medline ) (smth pursuit eye mvement effects f alchl vershadwed thse f marijuana). 18. Savlainen, Riihimaki, Vaheri & Linnila, Effects f Xylene and Alchl n Vestibular and Visual Functins in Man, SCAND. J. WORK ENVIRON. HEALTH 94 (Sweden 1980) (abstract available n DIALOG, file 172: Embase n file 5: Bisis Previews ) (the effects f alchl n vestibular functins (e.g., psitinal nystagmus) were dse-dependent). 19. Tharp, Burns & Mskwitz, Circadian Effects n Alchl Gaze Nystagmus (paper presented at 20th annual meeting f Sciety fr Psychphysilgical Research), abstract in 18 PSYCHOPHYSIOLOGY, March 1981 (highly significant crrelatin between angle f nset f AGN and BAC). 20. Tharp, Burns & Mskwitz, Develpment and Field Test f Psychphysical Tests fr DWI Arrests, U.S. Dept. f Transprtatin Rep. N. DOT-HS (1981) (standardized prcedures fr administering and scring the SCRI three-test battery; participating fficers able t classify 81% f vlunteers abve r belw.10). 21. Church & Williams, Dse- and Time-Dependent Effects f Ethanl, 54 ELECTROENCEPHALOGRAPHY & CLIN. NEUROPHYSIOL., Aug. 1982, at 161 (abstract available n DIALOG, file 11: Psychinf r file 72: Embase ) (psitinal alchl nystagmus increased with dse levels f ethanl). 22. Andersn, Schweitz & Snyder, Field Evaluatin f Behaviral Test Battery fr DWI, U.S. Dept. f Transprtatin Rep. N. DOT-HS (1983) (field evaluatin f the field sbriety test battery (HGN, ne-leg stand, and walk and turn) cnducted by plice fficers frm fur jurisdictins indicated that the battery was apprximately 80% effective in determining BAC abve and belw.10 percent). HS 178 R2/06 3

178 23. Barnes, The Effects f Ethyl Alchl n Visual Pursuit and Suppressin f the Vestibul-Ocular Reflex, 406 ACTA OTOLARYNGOL SUPP. 161 (Sweden 1984) (ethyl alchl disrupted visual pursuit eye mvement by increasing number f nystagmic "catch-up saccades"). 24. Cmptn, Use f the Gaze Nystagmus Test t Screen Drivers at DWI Sbriety Checkpints, U.S. Dept. f Transprtatin (1984) (field evaluatin f HGN test administered t drivers thrugh car windw in apprximately 40 secnds: "the nystagmus test scred identified 95% f the impaired drivers" at 2; 15% false psitive fr sber drivers, id.). 25. Helzer, Detectin DUIs Thrugh the Use f Nystagmus, LAW AND ORDER, Oct. 1984, at 93 (nystagmus is "a pwerful tl fr fficers t use at radside t determine BAC f stpped drivers...(o)fficers can learn t estimate BACs t within an average f 0.02 percent f chemical test readings." Id. at 94). 26. Nutt, Palva & Seppala, Nalxne Ethanl Interactin in Experimental and Clinical Situatins, 54 ACTA PHARMACOL. TOXICOL. 278 (1984) (abstract available n DIALOG, file 5: Bisis Previews ) (ethanl alne dse-dependently induced nystagmus). 27. L.R. Erwin, DEFENSE OF DRUNK DRIVING CASES (3d ed. 1985) ("A strng crrelatin exists between the BAC and the angle f nset f (gaze) nystagmus." Id. at 8.15A(3). 28. Nrris, The Crrelatin f Angle f Onset f Nystagmus With Bld Alchl Level: Reprt f a Field Trial, CALIF. ASS'N CRIMINALISTICS NEWSLETTER, June 1985, at 21 (The relatinship between the ingestin f alchl and the inset f varius kinds f nystagmus "appears t be well dcumented." Id. "While nystagmus appears t be useful as a radside sbriety test, at this time, its use t predict a persn's bld alchl level des nt appear t be warranted." Id. at 22). 29. Seelmeyer, Nystagmus, A Valid DUI Test, LAW AND ORDER, July 1985, at 29 (hrizntal gaze nystagmus test is used in "at least ne law enfrcement agency in each f the 50 states" and is "a legitimate methd f establishing prbable cause." Id.). HS 178 R2/06 4

179 30. Burns & Andersn, Field Evaluatin Study f the Standardized Field Sbriety Test (SFST) Battery, (Clrad, 1995). Study examined the accuracy f plice arrest and release decisins under radside cnditins where trained and experienced fficers rely n the SFSTs. Breath and bld tests supprted 94% f the decisins t arrest. PBT measurements indicated 64% crrect release decisins. 31. Burns & Diquin, Field Evaluatin Study f the Standardized Field Sbriety Test (SFST) Battery, (Flrida, 1997). Study demnstrated that fficers trained under NHTSA guidelines and experienced in applicatin f the SFST battery in the field were accurate in 95% f arrest decisins and 85% f release decisins. 32. Stuster & Burns, Validatin f the Standardized Field Sbriety Test Battery at BACs Belw 0.10 Percent, U.S. Dept. f Transprtatin Rep. N. DOT-HS (1998). Study fund NHTSA s Standardized Field Sbriety test battery t be an accurate methd f discriminating mtrist s BACs abve and belw 0.08 percent, and abve and belw 0.04 percent when testing is cnducted by fficers trained in mdified scring f NHTSA s SFST battery. (See bar graph n next page.) 33. Citek, Ball, & Rutledge, Nystagmus Testing in Intxicated Individuals, Cllege f Optmetry, Pacific University, Frest Grve, Oregn and the Oregn State Plice, Wilsnville, Oregn (2003). The HGN test administered in the standing, seated, and supine pstures is able t discriminate impairment at criterin BACs f 0.08% and 0.10%. The VGN test can identify high levels f impairment at any test psture. Therefre, these tests can be used by an fficer t determine if a driver is impaired, regardless f whether the driver is standing, seated, r supine. 34. Burns, The Rbustness f the Hrizntal Gaze Nystagmus (HGN) Test, U.S. Department f Transprtatin Rep. (2004). The data prvide n reasn t expect HGN examinatins f ne-eyed individuals t yield misleading infrmatin and HGN, as used by law enfrcement is a rbust prcedure, and the data btained in this experiment d nt supprt recmmendatins fr changes in hw fficers are trained t view a suspect s eyes and interpret their bservatins. The study findings prvide n basis fr cncluding that the validity f HGN is cmprmised by minr prcedural variatins. HS 178 R2/06 5

180 ATTACHMENT B A Clrad Validatin Study f the Standardized Field Sbriety Test (SFST) Battery Final Reprt Submitted t Clrad Department f Transprtatin Nvember 1995 Marcelline Burns, Ph.D. Suthern Califrnia Research Institute Ls Angeles, Califrnia Ellen W. Andersn, Deputy Pitkin Cunty Sheriff s Office Aspen, Clrad This reprt was funded by the Office f Transprtatin Safety, Clrad Department f Transprtatin (utilizing Natinal Highway Traffic Safety Administratin funds, under Prject Number ). HS 178 R2/06

181 I. Intrductin A battery f standardized field sbriety tests (SFSTs), which was develped under Natinal Highway Traffic Safety (NHTSA) funding during the 1970's, is nw used by plice fficers natinwide. Traffic fficers in fifty states, wh have been trained in standardized administratin f the tests, rutinely use them and incrprate their bservatins f drivers test perfrmance int their arrest r release decisins. Defense attrneys, hwever, ften challenge the admissibility f curt testimny abut the test battery. Radside decisins are a critical cmpnents f alchl-and-driving enfrcement, and, therefre, f traffic safety. Because the SFSTs aid fficers in the ftendifficult task f identifying alchl-impaired drivers, it is likely that the tests have cntributed in sme unknwn measure t the significant decline in alchl-related fatalities ver the last decade. Given that they have exerted a psitive impact n traffic safety, it is imprtant t reslve questins abut their validity and reliability, t maintain their credibility, and t preserve them as a radside tl. Because curt arguments abut SFSTs fcus largely n the research cnducted at the Suthern Califrnia Research Institute (SCRI) and because that research is smetimes misrepresented r misunderstd, it is necessary first t clarify its purpse. Tw large-scale labratry experiments were cnducted fr the purpse f identifying and standardizing a best set f tests (Burns and Mskwitz, 1977; Tharp, burns and Mskwitz, 1981). Althugh it clearly is relevant at this pint in time t inquire whether the methds f thse experiments were scientifically sund, it shuld be recgnized that the labratry data are nw nly indirectly enlightening abut current radside use f the tests. In particular, nte that cntrlled labratry cnditins are less variable and, therefre, may be less challenging than the highly varied cnditins which fficers rutinely encunter in the field. Als, fficer experience with the SFSTs is key t the skill and cnfidence with which they use them as a basis fr their decisins. Thus it is imprtant t understand that the fficers wh participated in the SCRI studies had nt been trained with the SFSTs until just prir t the experiments. They had nt had pprtunity and time t gain skill r t develp cnfidence in the tests. In cntrast, many f the fficers wh nw use and testify abut the tests have been using them regularly fr ten r mre years, and it is reasnable t assume they have gained skill and t expect that their decisins based n the tests may be mre accurate than thse f the fficers during the initial research. The questin t be addressed in 1995 by agencies, fficers and the curts is, Hw accurate are the arrest decisins which are made by experienced, skilled fficers under radside cnditins when they rely n SFSTs?. A bradly applicable answer cannt be fund in labratry research. It requires field data; i.e., infrmatin abut real-wrld arrest decisins by fficers trained by NHTSA guidelines t administer the SFSTs. The Clrad Department f Transprtatin funded a 1995 study t btain such data. Thrugh a grant t the Pitkin Cunty Sheriff s Office and with the cperative effrt f seven Clrad law enfrcement agencies, recrds were cllected frm drivers tested with the SFSTs at radside. The seven agencies were: Aspen Plice Department (APD) Basalt Plice Department (BPD) Bulder Cunty Sheriff s Office (BCSO) Clrad State Patrl (CSP) Lakewd Plice Department (LPD) Pitkin Cunty Sheriff s Office (PCSO) Snwmass Village Plice Dept (SVPD) With infrmatin drawn frm impaireddriving recrds, a data base was created and analyzed at the Suther Califrnia Research Institute. HS 178 R2/06 1

182 Technical Summary In the State f Clrad, mtr vehicle peratrs are subject t arrest if they are fund t be driving with a bld alchl cncentratin (BAC) f 0.05% r higher. At BACs f 0.05% r higher but less than 0.10%, they are charged with Driving While Ability Impaired (DWAI). At BACs f 0.10% and higher, the charge is Driving Under the Influence (DUI). These statutes reflect the evidence frm bth epidemilgical and labratry studies f alchl impairment f driving skills. It is the respnsibility f law enfrcement fficers t detect and arrest alchl-influenced drivers in accrdance with these statutry limits. In an effrts t meet that bjective, plice fficers, nt nly in Clrad but in all fifty f the United States, rely n a battery f standardized field sbriety tests (SFSTs). Observatins f drivers perfrmance f the tests, tgether with driving pattern, appearance and manner, dr f alchl, and ther signs, underlie fficers arrest and release decisins. T be genuinely useful, radside tests must be valid and reliable; i.e., they must measure changes in perfrmance assciated with alchl and they must d it cnsistently. T the extent that they meet the validity and reliability criteria, they can be expected t cntribute t traffic safety by increasing the likelihd that alchl-impaired drivers will be remved frm the radway by arrest. Imprtantly, they als will further serve the driving public s interest by decreasing the likelihd that a driver wh is nt alchlimpaired will be mistakenly detained r arrested. Thus, the validity and reliability f the tests are imprtant issues. This study was undertaken specifically t extend study f the SFSTs frm the labratry setting t field use. The primary study questin was, Hw accurate are fficers arrest and release decisins when the SFSTs are used by trained and experienced fficers? Over a five-mnth perid, fficers frm seven Clrad law enfrcement agencies wh vlunteered fr the study prvided the recrds (N=305) frm every administratin f the SFSTs. Using nly the standardized 3-test battery (Walk-and-Turn, One-Leg Stand, Hrizntal Gaze Nystagmus), fficers seldm erred when they decided t arrest a driver. Breath r bld specimens cnfirmed that 93% f the arrested drivers were abve 0.05% BAC. Officers were mre likely t err n the side f releasing drivers than n the side f incrrectly arresting drivers. Given the difficulty f the task which cnfrnts fficers at radside, in particular with alchl-tlerant individuals, the finding that apprximately ne-third f the released drivers shuld have been arrested is nt unexpected. Hwever, it is imprtant t nte that fficers decisins t release were crrect tw-thirds f the time. Overall, 86% f the fficers decisins t arrest r release drivers wh prvided bld r breath specimens were crrect. It is cncluded that the SFSTs are valid tests; i.e., they serve as indices f the presence f alchl at impairing levels. The study design did nt supprt an examinatin f testretest reliability. It shuld be nted, hwever, that the test battery appears t have served equally well acrss agencies and fficers, strngly suggesting that it achieves acceptable reliability as well. HS 178 R2/06 2

183 III. Study Design This study was designed t: (1) gather data t assign fficers decisins t the fur cells f the decisin matrix illustrated in Figure 1, and t (2) examine the accuracy f the SFST battery when used in the widely varying weather cnditins f Clrad winter, spring, and summer mnths. Bth the design and the executin f the study fcused n the integrity, cmpleteness, and standardizatin f the data. It is imprtant t nte hw the study ppulatin was defined and hw the sample f subjects was drawn. Subjects were a subset f the ppulatin f drivers wh were detained by plice fficers during the study perid. They were drivers, bth thse arrested and thse released, wh were stpped by plice fficers during the study perid and wh were requested t perfrm the SFSTs. The fficers decisins abut thse drivers have been analyzed in terms f crrect decisins (Crrect Arrests and Crrect Releases) and errrs (Incrrect Arrests and Incrrect Releases). In a brader cntext, the terms Crrect Releases and Incrrect Releases culd be extended t mtrists wh were stpped but wh were nt asked t perfrm the SFSTs. In many f thse cases, the release decisins were crrect, but it is likely that sme f there were impaired drivers wh were released withut ever being asked t perfrm the SFSTs. Thse individuals and thse decisins are f interest and wuld be included in an assessment f verall prficiency in DUI detectin and arrest. In fact, the entire ppulatin f impaired drivers, nly sme f whm are detected and stpped, is f interest in terms f traffic safety. In a validatin study f SFSTs, hwever, the subjects were nly thse drivers wh were asked t perfrm the tests. HS 178 R2/06 3

184 VI. Summary and Discussin In 1995, there is a sund base f scientific evidence t supprt the use f 0.10%, 0.08%, and 0.05% BACs as presumptive and per se alchl limits fr drivers. There als appears t be strng supprt fr thse statutes amng citizens thrughut brad (thugh nt all) segments f sciety. A clear-cut shift f attitude ver the past ten t fifteen years has resulted in anti-drunk driving sentiments by much f the driving ppulatin. In many scial circles drinking-and-driving nw is unacceptable behavir. Why then, in a largely pr-alchl enfrcement climate, are there negative views f traffic fficers related activities? Citizens ften seem t believe that enfrcement is hitr-miss and that fficers regularly fail t remve many, if nt mst, alchl-impaired drivers frm the radway. Sme als seem t believe that the activities at radside are arbitrary and calculated t harass. Althugh the multifaceted scial and individual variables that underlie this paradx f cncurrent anti-enfrcement sentiment and anti-drunk driving sentiment are beynd the scpe f this reprt, it is germane t cnsider ne set f factrs. At least part f this view f alchl enfrcement is attributable t a general failure t recgnize the imprtance f traffic fficers duties, and t understand nt nly what their duties encmpass but als the difficulty f their task. Legislatrs, regulatry agencies, activities grups, and safety-cnscius citizens alike smetimes appear t verlk the fact that traffic fficers are pivtal in the deterrence f drunk driving. Unless fficers are able t detect and arrest impaired drivers, thse drivers will never enter the system f sanctins and, therefre, the existence f enabling statutes and anti-drunk driving sentiment will be largely irrelevant t them. Unfrtunately, it is als true that the escape f detectin and arrest n multiple ccasins serves t reinfrce the risky behavir. In effect, if n accident and n arrest ccur n ne r mre ccasins f drinking and driving, the citizen may cnclude that driving after drinking is acceptable behavir n ther ccasins. Fr a number f reasns, the difficulties assciated with traffic fficers alchlenfrcement respnsibilities typically are underestimated. One reasn is the misnmer drunk driving, which suggests that their duty is t apprehend drunks r bviuslyintxicated individuals. If that were indeed the sle definitin f alchl enfrcement duties, the task wuld be fairly straightfrward. In reality, the risks assciated with drinking and driving are nt limited t bviusly-intxicated drivers, nr are fficers enfrcement respnsibilities restricted t thse drivers. Traffic fficers are respnsible fr remving alchl-impaired drivers frm the radway, and the Clrad statute sets the criterin alchl levels at 0.10% and 0.05% BAC. In ther jurisdictins the BAC limit is 0.08%, with additinal lwer levels fr lesser charges and specific driver grups. Enfrcement prblems arise in part frm the fact that althugh the evidence clearly establishes that driving skills are impaired at 0.10% BAC and lwer, many, pssibly even mst, individuals wh are willing t drive after drinking are nt bviusly intxicated at thse levels. Leaving aside the prblem f detecting alchl impairment by the bservatin f driving behavirs, cnsider fficers task nce they stp vehicles and cntact drivers at radside. Wrking under widely-varying cnditins withut special measurement apparatus, they must decide within a few minutes whether a specific driver is impaired by alchl. Impaired drivers may r may nt display atypical speech, appearance, r ther persnal characteristics, but in either circumstance the fficers have n knwledge f any given driver s sber appearance and behavir. The task is further cmplicated by the tlerant drinker s nrmal appearance even at very high BACs. HS 178 R2/06 4

185 Are there signs and symptms which are reliably assciated with 0.05% and 0.10%? With what level f cnfidence can the fficer arrest r release a driver? With a decisin criterin that minimizes incrrect arrests, the risk f releasing impaired drivers rises. On the ther hand, a very strict decisin criterin will decrease the number f impaired drivers wh are released but at the risk f unnecessarily detaining nn-impaired drivers. Is ne risk preferable t the ther? These questins define the cntext f traffic fficers alchl enfrcement activities and the backgrund f the Clrad Validatin Study f the SFSTs. The recrds cllected and analyzed during this study prvide evidence that the SFSTs, as used at radside by trained and experienced law enfrcement fficers, are valid indices f the presence f alchl. Recrds f all driver cntacts, which resulted in administratin f the SFSTs during the study perid, were entered int the analysis. Overall, fr 234 cases cnfirmed by breath r bld tests, fficers decisins t arrest and release were 86% crrect, and 93% f their arrest decisins were crrect. It was nt unexpected t find that fficers were almst twice as likely t release incrrectly as t arrest incrrectly. Nnetheless, nly 36% f the released drivers were at r abve the statutry limit. These findings btained in the field with fficers experienced with the use f SFSTs can be cmpared with findings frm a labratry setting with fficers recently trained with the SFSTs. It shuld be kept in mind that the current data are nt fully cmparable t data frm labratry experiments, since there are differences ther than time-since-training and labratry vs. field. With that cautin, the cmparisns are instructive. In an initial study f field sbriety tests with 238 labratry subjects, fficers decisins verall were 76% crrect (Burns and Mskwitz, 1977). Only 54% f their arrest decisins were crrect, and nly 8% f their release decisins were incrrect. In a secnd labratry study, fficers decisins verall were 81% crrect, their arrest decisins were 68% crrect, and 14% f their release decisins were wrng (Tharp, Burns and Mskwitz, 1981). It is apparent that the arrest criterin was lwer in the labratry. The penalties fr mistakes in a labratry setting are, f curse, fairly trivial cmpared t a real-wrld setting. The lwer criterin, tgether with lack f experience with the tests, accunts fr higher rates f incrrect arrests and lwer rates f incrrect releases than fund in this study. It is nt surprising t find that fficers in the field require mre certainty abut arresting a citizen and adpt a higher criterin with the result that they err in the directin f incrrect releases. In summary, the data prvide clear-cut findings abut the use f SFSTs by fficers in six Clrad cmmunities. On a brader scale, they prvide partial and tentative answers t sme imprtant questins. It is hped that current data frm a field setting will facilitate curt prceedings with drivers arrested n DUI and DWAI charges. It is hped, t, that the cntent f this reprt will add t the driving public s understanding f radside enfrcement activities, as well as t recgnitin f plice fficers critical rle in traffic safety. HS 178 R2/06 5

186 ATTACHMENT C A FLORIDA VALIDATION STUDY OF THE STANDARDIZED FIELD SOBRIETY TEST (S.F.S.T.) BATTERY Marcelline Burns, Ph.D. Suthern Califrnia Research Institute Ls Angeles, Califrnia Teresa Diquin, Sergeant Pinellas Cunty Sheriff s Office Larg, Flrida HS 178 R2/06

187 I. INTRODUCTION During the years , a battery f field sbriety tests was develped under funding by the Natinal Highway Traffic Safety Administratin (NHTSA), U.S. Department f Transprtatin (Burns and Mskwitz, 1977; Tharp, Burns, and Mskwitz, 1981). The tests include Walk-and-Turn (WAT), One-Leg Stand (OLS), and Hrizntal Gaze Nystagmus (HGN). NHTSA subsequently develped a training curriculum fr the three-test battery, and initiated training prgrams natinwide. Traffic fficers in all 50 states nw have been trained t administer the Standardized Field Sbriety Tests (SFSTs) t individuals suspected f impaired driving and t scre their perfrmance f the tests. At the time the SFSTs were develped, the statutry bld alchl cncentratin (BAC) fr driving was 0.10% thrughut the United States. The limit nw has been lwered in a number f states t 0.08% fr the general driving ppulatin. Zer tlerance is in effect in sme jurisdictins fr drivers under age 21, and cmmercial drivers risk lsing their licenses at a BAC f 0.04%. It is likely that additinal states will enact stricter statutry limits fr driving. In light f these changes, a reexaminatin f the battery was undertaken by McKnight et al. (1995). They reprted that the test battery is valid fr detectin f lw BACs and that n ther measures r bservatins ffer greater validity fr BACs f 0.08% and higher. The three tests have been incrprated int Drug Influence Evaluatins (DIEs) which are cnducted by certified Drug Recgnitin Experts (DREs) whenever an individual is suspected f being drug-impaired. As part f a DRE evaluatin, the SFSTs prvide imprtant evidence f drug impairment and cntribute t the DRE s three-part pinin: # Is the individual impaired by a drug r drugs? # If yes, is the impairment drug-related? # If yes, what categry r categries f drug accunt fr the impairment? A study was cnducted in Clrad t examine the validity f the SFSTs when used by experienced fficers in the field (Burns and Andersn, 1995). The design f the study insured that radside testing was limited t the three-test battery, and that fficers decisins were nt influenced either by the driver s perfrmance f ther behaviral tests r by measurement f BAC with a preliminary breath tester (PBT). The btained data demnstrated that mre than 90% f the fficers decisins t arrest drivers were cnfirmed by analysis f breath and bld specimens. A recently-reprted NHTSA-funded study was cnducted by Anacapa Sciences, Inc. in cllabratin with the San Dieg Plice Department t examine the validity f the SFSTs fr bth 0.08% and 0.04% (Stuster and Burns, 1997). Officers estimates f whether a driver s BAC was abve r belw 0.08% r 0.04% were fund t be mre than 90% crrect. HS 178 R2/06 2

188 The Clrad and Califrnia studies prvide relevant and current field data. The validity f the tests when they are administered in the cntext f drug evaluatins was examined in a retrspective analysis f the recrds f the Phenix DRE Unit (Adler and Burns, 1994). It was fund that a suspect s perfrmance f the tests prvides valid clues f drug impairment. The study reprted here was cnducted in cllabratin with the Pinellas Cunty Sheriff s Office (PCSO) and expands the examinatin f the SFSTs t the State f Flrida. An verview f PCSO and the demgraphics fr Pinellas Cunty can be fund in Appendix I. II. STUDY BACKGROUND AND RATIONALE During the early years f SFST use by law enfrcement, legal challenges were relatively infrequent. Fr mre than a decade nw, hwever, defense cunsel in many jurisdictins has sught t prevent the admissin f testimny abut a defendant s perfrmance f the three tests. The bjectins, which cntinue t be persistent and vigrus in 1997, typically fcus n test validity and reliability as demnstrated in the riginal labratry research. It is entirely apprpriate t inquire whether that early research t identify a best set f sbriety tests was cnducted with scientific rigr. Beynd that inquiry, hwever, the data, which were btained in a labratry setting and nw are mre than twenty years ld, are f little interest. Certainly, they are nly marginally relevant t current radside use f the tests. The questins which begs t be addressed in 1997 is whether the tests are valid and reliable indices f the presence f alchl when they are used at radside under present day traffic and law enfrcement cnditins. Experience and cnfidence have a direct bearing n an fficer s skill with radside tests. In this regard, nte that the fficers wh participated in the early SCRI studies had been nly recently and briefly (4 hrs) trained t administer the test battery. There had been n time fr them t use the tests in the field where they might have develped cnfidence in decisins based n them. Nnetheless, their decisins were 76% crrect in the first study and 81% crrect in the secnd study. At this pint in time, many traffic fficers have had ten r mre years experience with the test battery and many reprt that they cnfidently rely n them. Since it seems unlikely in the extreme that they wuld cntinue t rely n tests which repeatedly lead t decisin errrs, it is a reasnable assumptin that mre ften than nt their radside decisins t arrest are supprted by measured BACs. Whether their decisins t release are crrect is largely unknwn since the released driver s BAC generally is nt measured. HS 178 R2/06 3

189 Traffic fficers are charged with the detectin and arrest f impaired drivers. Althugh their radside duties are central t radway safety, recgnitin f alchlimpaired drivers can be difficult and is, therefre, subject t errr. If fficers are t effectively meet this particular enfrcement respnsibility, they need t augment their general bservatins f suspects with sensitive, accurate sbriety tests. The tests nt nly aid in the remval f dangerusly impaired drivers frm the radway, they als prtect the driver wh is nt alchl r drug impaired frm being imprperly detained. Thus, rigrus examinatins f the SFSTs are imprtant t traffic safety. V. RESULTS The first recrd in the data base is fr an arrest which ccurred n June 1, 1997, and the last recrd is dated September 4, During the study perid, 379 recrds were submitted fr the study. Figure 3 graphs the ttal number f recrds by mnth. As expected, the initial activities generated enthusiasm amng participants, and the largest number f citizen cntacts ccurred during the first prject mnth. Althugh available time f participating fficers was affected during July and August by scheduled training days and vacatins, and althugh it typically is difficult t sustain the initial high interest level, the actual decline in arrests ver the extended prject perid was nt large. The final mnth is nt cmparable, since data cllectin extended nly a few days int September. HS 178 R2/06 4

190 A. Ttal Sample and Measured BACs Table 3 summarizes the dispsitin f 379 recrds btained during this study. As can be seen in the table and in Figure 4, the BACs f 256 drivers were measured. Thus, BACs are available fr 81.8% f the 313 cases entered int an analysis f fficers decisins. Evidential testing at the bking facility accunts fr 210 f the BACs. Frty-six were btained with a Preliminary Breath Testing (PBT) device. A lg f all cases appears in Appendix IV. VI. SUMMARY AND DISCUSSION Legislatrs have lwered the limits fr alchl levels in drivers frm 0.15%, which was the very early standard, t 0.10% r 0.08%. The lwer statutry limits are sundly based in data frm scientific experiments and frm epidemilgy and are an imprtant step tward safer radways. Whether their full ptential fr reducing alchl-invlved crashes can be reached, hwever, depends n effective enfrcement. Failure t enfrce a statute, whatever the reasn fr the failure, weakens that statute and may actually render it cunterprductive t sme degree. Traffic fficers are the first link in the series f events that brings a DUI driver int the criminal justice system. Unless fficers are able t detect and arrest impaired drivers, thse drivers will nt experience the sanctins which are intended t deter impaired driving. Althugh there are many aspects t effective DUI enfrcement, certainly it is crucial fr fficers t be prficient in assessing the alchl impairment f drivers they detain at radside. As an aid t their radside decisins, fficers rely upn a battery f tests, the SFSTs, t augment their general bservatins f a driver. At this pint in time, n ther tests have been shwn t better discriminate between impaired and unimpaired drivers. Nnetheless, the battery, and in particular Hrizntal Gaze Nystagmus, frequently is attached vigrusly during curt prceedings. Thus, the examinatin f fficers decisins, based n the SFSTs, is f cnsiderable interest. If it can be shwn that fficers reliance n the tests is misplaced, causing them frequently t err, then the fficers, the curts, and the driving public need t be aware that the tests are nt valid and that DUI laws are nt bing prperly enfrced. If, n the ther hand, it can be shwn that fficer typically make crrect decisins, based n the SFSTs, perhaps the legal cntrversy that has centered n them fr mre than a decade can be diffused and curt time can be devted t mre substantive issues. HS 178 R2/06 5

191 The data btained during this study demnstrate that 95% f the fficers decisins t arrest drivers were crrect decisins. Furthermre, 82% f their decisins t release drivers were crrect. It is cncluded that the SFSTs nt nly aid plice fficers in meeting their respnsibility t remve alchl-impaired drivers frm the radway, they als prtect the rights f the unimpaired driver. These data validate the SFSTs as used in the State f Flrida by Pinellas Cunty Sheriff s deputies wh have been trained under NHTSA guidelines. SFST validity nw has been demnstrated in Flrida, Califrnia (1997) and Clrad (1995). There appears t be little basis fr cntinuing legal challenge. References Burns, M. (1990) Develpment and Pilt Test f a Cmputer Data Base f Drug Evaluatins f Impaired Drivers. N. 90M D. Burns, M. and Adler, E.V. (1994) Drug Recgnitin Expert (DRE) Validatin Study. Final Reprt, E , Gvernr s Office f Highway Safety, State f Arizna Burns, M. and Andersn, E. (1995) A Clrad Validatin Study f the Standardized Field Sbriety Test (SFST) Battery. Final Reprt, Clrad Department f Transprtatin. Burns, M. and Mskwitz, H. (1977) Psychphysical Tests fr DWI Arrest. Final Reprt, DOT-HS , NHTSA, U.S. Department f Transprtatin. McKnight, A.J., Langstn, E.A., Lange, J.E., and McKnight, A.S. (1995) Develpment f Standardized Field Sbriety Test fr Lwer BAC Limits (SFST-LL), Final Reprt, DTNH , NHTSA, U.S. Dept. f Transprtatin. Stuster, J. and Burns, M. (1977) Validatin f the Standardized Field Sbriety Test Battery at BACs Belw 0.10 Percent. Final Reprt, DTNH22-95-C-05192, NHTSA, U.S. Dept. f Transprtatin. Tharp, V., Burns, M. and Mskwitz, H. (1981). Develpment and Field Test f Psychphysical Tests fr DWI Arrests. Final Reprt, DOT-HS , NHTSA, U.S. Dept. f Transprtatin. HS 178 R2/06 6

192 VALIDATION OF THE STANDARDIZED F IELD SOBRIETY TEST B ATTERY AT BACS B ELOW 0.10 PERCENT FINAL REPORT Submitted t: U.S. DEPARTMENT OF TRANSPORTATION NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION Jack Stuster Marcelline Burns August 1998 ANACAPA SCIENCES, INC. P.O. Bx 519 Santa Barbara, Califrnia 93102

193 [Blank Page] --ii--

194 Technical Reprt Dcumentatin Page 1. Reprt N. 2. Gvernment Accessin N. 3. Recipient s Catalg N. DOT HS? 4. Title and Subtitle 5. Reprt Date Validatin f the Standardized Field Sbriety Test Battery at August 1998 BACs Belw 0.10 Percent 7. Authr(s) 6. Perfrming Organizatin Cde: n/a Jack W. Stuster, PhD, CPE, and Marcelline Burns, PhD 8. Perfrming Organizatin Reprt N. n/a 9. Perfrming Organizatin Name and Address 10. Wrk Unit N. (TRAIS) Anacapa Sciences, Inc. P.O. Bx Cntract r Grant N. Santa Barbara, CA DTNH22-95-C Spnsring Agency Name and Address 13. Type f Reprt and Perid Cvered Natinal Highway Traffic Safety Administratin Final Reprt 400 Seventh Street, SW Washingtn, D.C Supplemental Ntes 14. Spnsring Agency Cde James F. Frank, PhD was the Cntracting Officer s Technical Represenative (COTR) fr this prject. 16. Abstract This study evaluated the accuracy f the Standardized Field Sbriety Test (SFST) Battery t assist fficers in making arrest decisins fr DWI at bld alchl cncentratins (BACs) belw 0.10 percent. NHTSA s SFST battery was validated at 0.10 percent BAC in The trend t reduce statutry DWI limits t 0.08 percent BAC prmpted this research prject. The research was cmpsed f several prject tasks, including planning, site-selectin, training, data entry, and data analysis, in additin t the actual cnduct f a majr field study. The City f San Dieg, Califrnia, was selected as the site. Seven fficers f the San Dieg Plice Department s alchl enfrcement unit were trained in the administratin and mdified scring f NHTSA s SFST battery (i.e., Hrizntal Gaze Nystagmus-HGN, Walk and Turn, and One Leg Stand). SFST scring was adjusted: the bservatin f fur HGN clues indicated a BAC 0.08 percent (rather than fur clues indicating a BAC 0.10 percent), and the bservatin f tw HGN clues indicated a BAC 0.04 percent. During rutine patrls, the participating fficers fllwed study prcedures in administering SFSTs and cmpleting a data cllectin frm fr each test administered. The fficers final step in each case was the administratin f an evidentiary breath alchl test. Data analysis fund the SFSTs t be extremely accurate in discriminating between BACs abve and belw 0.08 percent. The mean estimated and measured BACs f the 297 mtrists tested were and 0.122, respectively; the difference between the means (0.005 percent BAC) is very small and peratinally irrelevant. Further, analyses fund the HGN test t be the mst predictive f the three cmpnents f the SFST battery (r=0.65), hwever a higher crrelatin was btained when the results f all three tests were cmbined (r=0.69). Decisin analyses fund that fficers estimates f whether a mtrist s BAC was abve r belw 0.08 r 0.04 percent were extremely accurate. Estimates at the 0.08 level were accurate in 91 percent f the cases, r as high as 94 percent if explanatins fr sme f the false psitives are accepted. Officers estimates f whether a mtrist s BAC was abve 0.04 percent but lwer than 0.08 percent were accurate in 94 percent f the decisins t arrest and in 80 percent f cases verall. Als, the fficers and prsecutrs wh were interviewed abut the SFSTs fund the test battery t be acceptable fr field use t establish prbable cause fr DWI arrest. The results f this study prvide clear evidence f the validity f the Standardized Field Sbriety Test Battery t discriminate at 0.08 percent BAC, using a slightly mdified scring prcedure. Further, study results strngly suggest that the SFSTs als accurately discriminate at 0.04 percent BAC. 17. Key Wrds 18. Distributin Statement DWI, DUI, detectin, field sbriety, perfrmance tests, alchl, law enfrcement, highway safety 19. Security Classif. (f this reprt) 20. Security Classif. (f this page) 21. N. f Pages 22. Price Unclassified Unclassified --iii--

195 [Blank Page] -- iv --

196 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent EXECUTIVE SUMMARY This reprt dcuments the research activities and presents the results f a study cnducted fr the Natinal Highway Traffic Safety Administratin (NHTSA) t evaluate the accuracy f the Standardized Field Sbriety Test (SFST) Battery t assist fficers in making arrest decisins and t discriminate bld alchl cncentratins (BACs) belw 0.10 percent. NHTSA s SFST battery was validated at 0.10 percent BAC in The trend t reduce statutry DWI limits t 0.08 percent BAC prmpted this research prject. DESCRIPTION OF THE RESEARCH The research was cmpsed f several prject tasks, including planning, siteselectin, training, data entry, and data analysis, in additin t the actual cnduct f a majr field study. The City f San Dieg, Califrnia, was selected as the site f the field study. Seven fficers f the San Dieg Plice Department s alchl enfrcement unit were trained in the administratin and mdified scring f NHTSA s SFST battery (i.e., Hrizntal Gaze Nystagmus, Walk and Turn, and One Leg Stand). SFST scring was changed slightly: the bservatin f fur hrizntal gaze nystagmus (HGN) clues indicated a BAC 0.08 percent (rather than fur clues indicating a BAC 0.10 percent), and the bservatin f tw HGN clues indicated a BAC 0.04 percent. During rutine patrls, the participating fficers fllwed study prcedures in administering SFSTs and cmpleting a data cllectin frm fr each test administered during the study perid. The fficers final step in each case was the administratin f an evidentiary breath alchl test. RESULTS The participating fficers cmpleted a ttal f 298 data cllectin frms; nly ne case was eliminated frm analysis because the mtrist refused all frms f BAC testing. Data analysis fund the SFSTs t be extremely accurate in discriminating between BACs abve and belw 0.08 percent. The mean estimated and measured BACs f the 297 mtrists tested were and 0.122, respectively; the difference between the means (0.005 percent BAC) is very small and peratinally irrelevant. Further, analyses fund the HGN test t be the mst predictive f the three cmpnents f the SFST battery (r=0.65), hwever a higher crrelatin was btained when the results f all three tests were cmbined (r=0.69). The results f decisin analyses prvide clear indicatin f SFST accuracy. Decisin analyses fund that fficers estimates f whether a mtrist s BAC was abve r belw 0.08 r 0.04 percent were extremely accurate. Estimates at the 0.08 level were accurate in 91 percent f the cases, r as high as 94 percent if explanatins fr sme f the false psitives are accepted. Officers estimates f whether a mtrist s BAC was abve 0.04 but under 0.08 were accurate in 94 percent f the decisins t arrest and in 80 percent f the relevant cases, verall. -- v --

197 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent Finally, the fficers and prsecutrs wh were interviewed abut the SFSTs fund the test battery t be fully acceptable fr field use t establish prbable cause fr DWI arrest. IMPLICATIONS The results f this study prvide clear evidence f the validity f the Standardized Field Sbriety Test Battery t discriminate abve r belw 0.08 percent BAC, using a slightly mdified scring prcedure. Further, study results strngly suggest that the SFSTs als accurately discriminate abve r belw 0.04 percent BAC. -- vi --

198 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent TABLE OF CONTENTS INTRODUCTION... 1 Backgrund... 1 THE R ESEARCH... 5 Task 1: Refined Wrk Plan... 5 Task 2: Specified SFSTs and Revised Prcedures... 5 Task 3: Selected and Recruited Law Enfrcement Agency... 5 Task 4: Cnducted the Field Validatin Study... 9 Tasks 5 and 6: Analyzed Data and Prepared Final Reprt Page R ESULTS Evaluatin f SFST Accuracy Cmparisn f Means Crrelatin Analyses Decisin Analyses Evaluatin f SFST Acceptability IMPLICATIONS Hw Accurately D the Tests Discriminate? Which f the Cmpnents f the SFST Battery Is/Are the Best Predictrs? Hw Reliable, r Cnsistent, Are the Tests? Are the Tests Usable By Officers? Are They Accepted by Officers and Prsecutrs? Cnclusins R EFERENCES A PPENDIX A: S TANDARDIZED FIELD SOBRIETY TESTING vii --

199 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent LIST OF TABLES Table Page 1 COMPONENTS OF THE F IELD EXPERIMENT PLAN ESTIMATED AND M EASURED BAC BY A GE CATEGORY ESTIMATED AND M EASURED BAC BY GENDER ESTIMATED AND M EASURED BAC BY DISPOSITION, A GE CATEGORY, AND GENDER 16 5 CORRELATIONS OF SFST SCORES TO ESTIMATED AND M EASURED BAC S UMMARY OF F ALSE POSITIVES S UMMARY OF F ALSE N EGATIVES FIGURES Figure Page 1 Fatality rates per millin miles traveled in the U.S Sequence f majr prject tasks Data cllectin frm used in the validatin study Decisin matrix at 0.08 percent BAC Decisin matrices at 0.08 percent BAC fr each cmpnent test Venn diagram f 188 cases 0.08 percent BAC Decisin matrix at 0.04 percent BAC viii --

200 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent ACKNOWLEDGMENTS The Natinal Highway Traffic Safety Administratin and Anacapa Sciences, Inc., are grateful t the managers and fficers f the San Dieg Plice Department fr their cperatin during the perfrmance f this research prject. Special thanks t Officer Dug English, prject liaisn, and Sergeant Bill Snyder, supervisr f the Traffic Divisin s alchl-enfrcement unit. -- ix --

201 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent -- x --

202 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent INTRODUCTION Beginning in 1975, the Natinal Highway Traffic Safety Administratin (NHTSA) spnsred research that led t the develpment f standardized methds fr plice fficers t use when evaluating mtrists wh are suspected f Driving While Impaired (DWI). 1 Beginning in 1981, law enfrcement fficers have used NHTSA s Standardized Field Sbriety Test (SFST) battery t help determine whether mtrists wh are suspected f DWI have bld alchl cncentratins (BACs) greater than 0.10 percent. Since that time, many states have implemented laws that define DWI at BACs belw This reprt presents the results f research perfrmed t systematically evaluate the accuracy f NHTSA s SFST battery t discriminate abve r belw 0.08 percent and abve r belw 0.04 percent bld alchl cncentratin. The reprt is presented in fur sectins. This brief Intrductin presents the bjectives f the research, prvides a summary f the relevant traffic safety issues, and discusses the histrical cntext f the study. The secnd sectin f the reprt describes the research tasks that were perfrmed. The third sectin presents the results f the study. The final sectin f the reprt discusses the implicatins f the study results. BACKGROUND Nearly 1.4 millin peple have died in traffic crashes in the United States since 1966, the year f the Natinal Traffic and Mtr Vehicle Safety Act (which led t the creatin f NHTSA in 1970). During the late 1960s and early 1970s mre than 50,000 peple lst their lives each year n ur natin s public rads; mre than half f the mtrists killed had been drinking. Traffic safety has imprved cnsiderably since that time: the annual death tll has declined t abut 40,000, even thugh the numbers f drivers, vehicles, and miles driven all have greatly increased. The dramatic imprvements in traffic safety are reflected in the change in fatality rate per 100 millin vehicle miles traveled: The fatality rate fell frm 5.5 in 1966 t 1.7 in 1996 (FARS--Fatal Analysis Reprting System--96), a 69 percent imprvement. Figure 1 illustrates this imprtant trend. When miles traveled are cnsidered, the likelihd f being killed in traffic in 1966 was mre than three times what it is tday. Despite the significant imprvements in traffic safety during the past 17 years, an average f mre than 115 peple still die each day frm mtr vehicle crashes in the United States. It is estimated that 41 percent f the drivers wh die in crashes have been drinking. 1 Varius terms are used thrughut the United States fr ffenses invlving drinking and driving. In this reprt, Driving While Impaired (DWI) is used t refer t all ccurrences f driving at r abve the legal bld alchl cncentratiin (BAC) limit f a jurisdictin

203 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent An emphasis n DWI enfrcement since 1980 has been a factr in the significant imprvement in traffic safety, as represented by declining fatal and alchl-invlved crash rates. NHTSA-spnsred research cntributed substantially t the imprved cnditin, in part, by prviding patrl fficers with useful and scientifically valid infrmatin and training materials cncerning the behavirs that are mst predictive f impairment. In particular, NHTSA spnsred research that led t the develpment f a DWI detectin guide that listed 20 driving cues and the prbabilities that a driver exhibiting a cue wuld have a BAC f at least 0.10 percent (Harris et al., 1980; Harris, 1980). A similar study was cnducted recently that identified 24 driving cues that are predictive f DWI at the 0.08 level (Stuster, 1997). NHTSA als spnsred research that led t the develpment f a mtrcycle DWI detectin guide (Stuster, 1993). NHTSA s DWI training materials, based n the results f these studies, have expsed the current generatin f law enfrcement fficers in the U.S. t infrmatin critical t DWI enfrcement by prviding a systematic, scientifically valid, and defensible apprach t n-the-rad DWI detectin Fatality Rate per Millin Vehicle Miles Travelled DWI Detectin Training Begins SFSTs Are Intrduced Figure 1. Fatality rates per millin miles traveled in the U.S. At the same time NHTSA was prviding patrl fficers with infrmatin cncerning the driving behavirs that are the mst predictive f impairment, the agency als spnsred research that led t the develpment f a standardized battery

204 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent f tests fr fficers t administer t assess driver impairment after an enfrcement stp has been made. Drs. Marcelline Burns and Herbert Mskwitz cnducted labratry evaluatins f several f the tests that were mst frequently-used by law enfrcement fficers at the time (Burns and Mskwitz, 1977). In additin t a variety f custmary radside tests (e.g., finger-t-nse, maze tracing, backward cunting), the researchers evaluated measures f an autnmic reactin t central nervus system depressants, knwn as hrizntal gaze nystagmus. Hrizntal gaze nystagmus (HGN) is an invluntary jerking f the eye that ccurs naturally as the eyes gaze t the side. Aschan (1958) described studies that linked varius frms f nystagmus t BAC, and Wilkinsn, Kime, and Purnell (1974) reprted cnsistent changes in hrizntal gaze nystagmus with increasing dses f alchl. At the time Burns and Mskwitz were cnducting their seminal research fr NHTSA, hrizntal gaze nystagmus recently had been fund t reliably predict BACs in a study cnducted in Finland (Pentilla, Tenhu, and Kataja, 1974). Further, Lehti (1976) had just calculated a strng crrelatin between BAC and the nset f nystagmus. All f the field sbriety tests evaluated by Burns and Mskwitz were fund t be sensitive t BAC in varying degrees, at least under labratry cnditins. In additin, all f the tests shwed a cnsistent increase in crrelatins with increasing BACs. Statistical analyses fund the hrizntal gaze nystagmus test t be the mst predictive f the individual measures. Hwever, the cmbined scres f three f the tests (One-Leg Stand, Walk-and-Turn, and Hrizntal Gaze Nystagmus) prvided a slightly higher crrelatin than the hrizntal gaze nystagmus test by itself. The cmbined scre crrectly discriminated between BACs belw r abve 0.10 in 83 percent f the subjects tested in the riginal study (Burns and Mskwitz, 1977). NHTSA immediately spnsred a subsequent study t standardize the test administratin and scring prcedures and cnduct further labratry and field evaluatins f the new battery f three tests. The researchers fund that plice fficers tended t increase their arrest rates and were mre effective in estimating the BACs f stpped drivers after they had been trained in the administratin and scring f the Standardized Field Sbriety Test battery. The results f this imprtant study were dcumented in meticulus detail in the technical reprt, Develpment and Field Test f Psychphysical Tests fr DWI Arrest (Tharp, Burns, and Mskwitz, 1981). That reprt has been cited thrughut the U.S. t establish the scientific validity f the SFST battery and t supprt fficers testimny in curt. NHTSA s SFST battery is described in Appendix A. During the past 16 years, NHTSA s SFSTs largely have replaced the unvalidated perfrmance tests f unknwn merit that nce were the patrl fficer s nly tls in helping t make pst-stp DWI arrest decisins. Reginal and lcal preferences fr ther perfrmance tests still exist, even thugh sme f the tests have nt been validated. Despite reginal differences in what tests are used t assist fficers in making DWI arrest decisins, NHTSA s SFSTs presently are used in all 50 states. NHTSA s SFSTs have becme the standard pre-arrest prcedures fr evaluating DWI in mst law enfrcement agencies

205 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent The hrizntal gaze nystagmus (HGN) test is cnsidered by many law enfrcement fficers t be a flprf technique (smetimes called a silver bullet ) that prvides indisputable evidence f alchl in a mtrist s system. The nrmal variatin in human physical and cgnitive capabilities, and the effects f alchl tlerance, result in uncertainties when arrest decisins are made exclusively n the basis f perfrmance tests. These uncertainties have resulted in large prprtins f DWI suspects being released rather than detained and transprted t anther lcatin fr evidentiary chemical testing. This is imprtant because experienced drinkers ften can perfrm physical and cgnitive tests acceptably, with a BAC greater than 0.10 percent. Hwever, mst experienced drinkers cannt cnceal the physilgical effects f alchl frm an fficer skilled in HGN administratin. This is because hrizntal gaze nystagmus is an invluntary reactin ver which an individual has abslutely n cntrl

206 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent THE RESEARCH This sectin prvides a detailed descriptin f all tasks perfrmed during the field validatin f the Standardized Field Sbriety Test Battery fr use at 0.08 percent BAC. The technical apprach t the research invlved the perfrmance f six majr prject tasks, as summarized in Figure 2 and described in the fllwing pages. Task 1: Refined Wrk Plan Task 2: Specified SFSTs and Revised Prcedures Task 3: Selected/Recruited LE Agency, Revised Training Prgram, and Cnducted Training Task 4: Cnducted Field Study Task 5: Entered and Analyzed Data Task 6: Prepared Final Reprt Figure 2. Sequence f majr prject tasks. TASK 1: REFINED WORK PLAN The bjectives f the first prject task were t meet with the Cntracting Officer s Technical Representative (COTR) and ther NHTSA SFST experts t discuss the prject and t refine the prpsed Wrk Plan based n thse discussins. The prject kick-ff meeting was held at NHTSA headquarters n 24 Octber Substantive discussins with NHTSA persnnel during and fllwing the meeting cntributed t the develpment f the technical apprach described here. TASK 2: SPECIFIED SFSTS AND REVISED PROCEDURES Based n the widespread use and acceptance f NHTSA s Standardized Field Sbriety Test (SFST) Battery, validated at 0.10 percent BAC, NHTSA spnsred the current study t evaluate the SFSTs at lwer BACs. The nly mdificatins t be made t the SFSTs wuld be: 1) fr fficers t use the exhibitin f fur clues as an indicatin f BACs at the 0.08 level r greater (as fficers presently are trained t use fur clues as an indicatr f BACs at 0.10 percent r greater), and 2) fr fficers t use the exhibitin f tw HGN clues as an indicatin f BACs greater than zer, but belw 0.08 percent. TASK 3: SELECTED AND RECRUITED LAW ENFORCEMENT AGENCY AND CONDUCTED TRAINING This prject task was cmpsed f fur subtasks, as described in the fllwing paragraphs

207 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent SUBTASK 3.1: IDENTIFIED SITE SELECTION CRITERIA The site-selectin criteria were: Candidate sites must emply lwer legal BAC levels (0.08 fr adults and zer tlerance fr yuth under 21 years). Candidate sites must generate a sufficient number f traffic enfrcement stps and DWI arrests fr accurate assessment f the tests reliability and validity. Participating fficers must have received NHTSA-apprved SFST training frm a certified instructr, pssess at least ne year f field experience administering SFSTs, and receive refresher training frm prject staff. Managers and fficers f the participating law enfrcement agency must agree t abide by the research prcedures fr the duratin f the field study. Fr example, fficers may use nly the SFST Battery (and n ther tests) tgether with their bservatins f the driver s general appearance and speech t make their arrest decisins; and, all test administratins must be recrded and submitted. Only agencies that culd assure an extremely high level f cperatin and cmmitment wuld be recmmended fr participatin. The site must have the capability f generating cases that represent the full range f alchl experience. Fr example, a city with a disprprtinate number f yunger drivers might be mre apprpriate t ensure samples f sufficient size fr the yunger age categries. SUBTASK 3.2: IDENTIFIED CANDIDATE SITES AND APPLIED SELECTION CRITERIA Several factrs cnstrained the site-selectin prcess and limited the pssible candidates fr participatin in this study. First, at the time the prject was cnducted, Califrnia, Oregn, and Utah were the nly states that met bth f the BAC-related site-selectin criteria, namely a 0.08 BAC limit fr DWI and a zer tlerance law fr drivers under 21 years f age. Secnd, it was imprtant t restrict the data cllectin perid, t the extent pssible, because it was believed that an extremely lng data cllectin perid might result in fficers deviating frm the study prcedures. Strict adherence t study prcedures was cnsidered essential t ensuring the internal validity f the study. The site-selectin strategy adpted was t recruit a plice department that serves ne large city--a city large enugh t generate a sufficient number f SFST administratins fr statistical analysis by itself. A large city als was likely t have a traffic divisin with a dedicated DWI unit cmpsed f trained experts. Fcusing n traffic enfrcement specialists wuld permit us t restrict participatin in the study t fficers wh already had received NHTSA-apprved SFST training and had additinal field experience administering the test battery. Prir training in SFST administratin was an imprtant site-selectin and methdlgical issue. In the study that validated the SFST battery in 1981, all fficers f an agency culd participate, fllwing training prvided by the researchers. The prcedure fllwed during the riginal study was apprpriate then because n ther fficers (anywhere) had yet t receive the training. Hwever, that prcedure culd nt be fllwed in the current study because thusands f fficers have received SFST

208 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent training since Only trained and experienced test administratrs culd be permitted t participate in the current study t avid cnfunding study results with the effects f substantially different fficer skill and experience levels in SFST administratin and scring. Officers wh are frmally trained and experienced in SFST administratin tend t be cncentrated in traffic enfrcement and special DWI units. This site-selectin strategy was judged t prvide the best apprach t achieve the bjectives f the current study, and the City f San Dieg, Califrnia, was identified as the leading candidate cmmunity when the site-selectin criteria were applied. The San Dieg Plice Department serves a resident ppulatin f mre than ne millin, with a much larger service ppulatin attributable t turism and several lcal military installatins. The manner in which the San Dieg Plice Department satisfied the site-selectin criteria is utlined belw. Number f SFST Administratins The San Dieg Plice Department maintains a traffic divisin cmpsed f 50 fficers, including ten fficers and a sergeant wh frm the alchl enfrcement unit. The alchl enfrcement unit deplys fur r five fficers n each night, Wednesday thrugh Sunday. The time necessary t cmplete the assciated paperwrk usually limits each fficer t a maximum f tw DWI arrests each night. This results in abut 130 arrests by fficers f the special unit during a fur week perid. The ther members f the traffic divisin, cmbined, make an additinal 130 DWI arrests each mnth. San Dieg Plice Department fficers d nt hesitate t arrest drivers fr BACs belw 0.08 percent if they exhibit any evidence f impairment, even thugh lw-bac arrests usually are nt prsecuted by the lcal district attrney. Demgraphic Cnsideratins The Wrk Plan discussed the imprtance f selecting a site that ffers cases fr analysis that represent the full range f driver ages and BACs f interest. It was believed that a yunger, rather than an lder, driver ppulatin wuld result in mre cases f zer tlerance vilatins and mre SFST administratins verall. In this regard, San Dieg and the surrunding area is hme t fur majr US Navy bases and bth the Navy and Marine Crps training centers. The area als is hme t three majr universities and several smaller clleges and technical schls. Willingness t Participate Naturally, frmal apprval by senir managers is required befre any law enfrcement agency can participate in a traffic safety study. Further, a manager s persnal interest in a study that results in cmmand emphasis cncerning participatin greatly cntributes t the success f a prject because f the quasimilitary rganizatinal structure f law enfrcement agencies. That is, if managers believe participatin t be f value t an agency they will direct their fficers t fllw the study prcedures. In this regard, the cmmanding fficer and ther senir managers f the San Dieg Plice Department expressed their cnsiderable interest in the study and directed their persnnel t cperate with the study team

209 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent Cmmand emphasis is an imprtant cmpnent t ensure adherence t study prcedures, but it is nt sufficient; the participating fficers als must be cmmitted t the study. The willingness f a law enfrcement agency t participate in a traffic safety study als can be measured, althugh subjectively, by the attitudes f field fficers when discussing the general and specific issues invlved in the study. The fficers f the San Dieg Plice Department with whm we spke abut the field validatin expressed genuine interest in the study and eagerness t be selected fr participatin. Finally, the requirement fr an agency t mdify its established prcedures t accmmdate special study prcedures usually is smewhat negtiable in a traffic safety study, but deviatins frm established study prcedures were nt negtiable in this field validatin. It was explained that plice managers and all participating fficers must agree t abide by the study prcedures t ensure the internal validity f study results. This was an area fr cncern t the prject team because the San Dieg Plice Department s established DWI prcedures included administering three field sbriety tests in additin t the three NHTSA SFSTs. A firm study requirement was that n ther tests be administered t subjects because they might influence an fficer s BAC estimates; that is, all fficer-estimates f BAC must be based exclusively n results f the NHTSA SFST battery using the slightly mdified scring system. In this regard, San Dieg plice managers inquired with their district attrney and DWI supervisrs, thse wh might bject t the restrictin, and fund n ppsitin. In fact, it was mentined that restricting sbriety testing t the three SFSTs wuld help streamline the prcedures fr everyne. Prir SFST Training All members f the San Dieg Plice Department s special alchl-enfrcement unit previusly had received SFST training that was administered accrding t NHTSA-apprved prcedures and curriculum by certified DWI instructrs. Althugh apprximately half f the ther members f the Traffic Divisin als had received SFST training, it was determined that the alchl-enfrcement unit wuld generate a sufficient number f SFST administratins fr statistical analysis. All f the participating fficers wuld receive a fur-hur refresher training curse prir t beginning the field study. SUBTASK 3.3: RECRUITED LAW ENFORCEMENT AGENCY TO PARTICIPATE IN THE STUDY NHTSA reviewed the site recmmendatins and apprved San Dieg as the site fr the field study. Further discussins were held with managers and fficers f the San Dieg Plice Department and a Memrandum f Agreement was signed that specified all study prcedures and requirements. SUBTASK 3.4: DEVELOPED SFST TRAINING PROGRAM The experimental requirement that all participating fficers be bth trained and experienced in SFST administratin eliminated the need t develp a special training prgram fr this study. It was cnsidered essential that the existing, NHTSA-apprved SFST training prgram remain the training standard fr the field evaluatin. Because all participating fficers already had received NHTSA-apprved

210 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent SFST training, nly a refresher prgram wuld be required. A fur-hur refreshertraining prgram was develped, based n the (Octber 1995) NHTSA curriculum. The purpses f the refresher training were t instruct the fficers cncerning the mdified scring system and btain cnfirmatin that all participants were administering and scring the SFST battery crrectly befre beginning the field study. TASK 4: CONDUCTED THE FIELD VALIDATION STUDY Systematic evaluatin f the SFSTs t assist fficers in making arrest decisins at BACs belw 0.10 percent, under field cnditins, was the ultimate bjective f this research. Althugh existing tests were the subject f the evaluatin, the reasns fr cnducting the field study were the same as if the tests previusly had nt been validated. First, it was necessary t determine the accuracy f the mdificatins t test scring, cmpared t actual BAC levels measured thrugh ther means. Fr cases in which the driver was arrested fr DWI, crrespndence wuld be assessed between scred perfrmance n the SFSTs and BAC, as determined by breath test (bld and urine tests were discuraged but used if subjects refused t cmply with breath testing). Fr cases in which a subject was administered SFSTs but then released n the basis f lw estimated BAC, hand-held breath testing devices were used t establish actual BAC. The secnd purpse f the evaluatin was t identify prblems with test applicatin in the field, which might include test administratin, scring prcedures, r ther factrs that might affect the use f the tests by law enfrcement persnnel. Third, the curts acceptance f evidence gathered using the slightly revised scring prcedures in the field evaluatin wuld be assessed. SUBTASK 4.1: PREPARED FIELD EXPERIMENT PLAN A Field Experiment Plan was develped and apprved by NHTSA t guide the cnduct f the field study. The plan included the seven cmpnents depicted in Table 1 and discussed belw. TABLE 1 COMPONENTS OF THE FIELD EXPERIMENT PLAN Cmpnent 1: Cmpnent 2: Cmpnent 3: Cmpnent 4: Cmpnent 5: Cmpnent 6: Cmpnent 7: Subjects Independent Variables Criterin Measures Materials Prcedures Cntrls Data Analyses Cmpnents 1 and 2: Subjects and Independent Variables The primary independent variable f interest, BAC, was inextricably linked t the subjects in this study. Specifically, the experiment plan fcused n btaining data frm adult mtrists wh were suspected f exceeding the legal limit f 0.08 percent BAC and yuths under 21 wh were suspected f exceeding the zer-tlerance

211 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent legal limit f The accuracy f the SFSTs t discriminate at 0.08 and 0.04 percent BAC culd nt be assessed withut data frm individuals wh had BACs ver and under these values. Therefre, it was imprtant t btain BAC estimates frm individuals wh had bth passed and failed the standardized field sbriety tests. Cmpnent 3: Criterin Measures The nly apprpriate criterin measure t assess the accuracy f SFSTs is BAC. Measures f impairment are irrelevant because perfrmance f the SFSTs must be crrelated with BAC level, rather than driving perfrmance. BAC prvides an bjective and reliable measure that states have recgnized as presumptive and/r per se evidence f impairment, depending n the statute. T btain these criterin measures, it was determined that all drivers wh were administered the SFST Battery must be tested fr BAC, regardless f the results f the SFSTs. In ther wrds, it wuld be essential t test the individuals wh were judged t have BACs belw the relevant statutry level and wh subsequently wuld be released. Participating fficers were instructed cncerning the imprtance f btaining BAC data fr all subjects, in rder t calculate the accuracy f the tests. All plice fficers participating in the study were equipped with NHTSAapprved, prtable breath testing devices t assess the BACs f all drivers wh were administered the SFSTs, including thse wh were released withut arrest. Further, arrested subjects were tested bth in the field with a prtable device and at the bking site. The use f passive alchl sensrs (PAS) during the study was nt permitted. Cmpnent 4: Materials Only the existing SFSTs were t be administered, which require n equipment. A pen, pencil, r small flash light frequently are used by fficers as a stimulus r target fr the HGN test, but a finger can be used with equal effectiveness. The data cllectin frm used in the study is presented as Figure 3. The data cllectin frm was extremely imprtant in this study fr several reasns. As is the case in mst field studies, the frm must be as simple t cmplete as pssible t minimize the wrklad f participating fficers. In the present case, it als was imprtant fr the frm t be designed t guide the fficer in the administratin f the SFSTs, t facilitate standardizatin and systematic scring f the tests. In additin, the frm designed fr this study had t bth encurage and prvide assurances that fficers had fllwed the study prcedures. Mst imprtant, it was essential that fficers wuld cnduct a breath test and recrd actual subject BAC as the final step f the prcess; that is, actual BACs were t be entered n the frm nly after BAC estimates based n SFST perfrmance had been recrded. Hand-held breath testing devices with digital displays were used fr this purpse. Cmpnent 5: Prcedures The sixth cmpnent f the field experiment plan was the specificatin f prcedures t be used fr administering the tests and btaining independent measures f BAC. The prcedures t be fllwed by participating fficers were listed

212 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent as a series f six numbered steps n the data cllectin frm that was used in the field study. The study prcedures were t be fllwed whenever a participating fficer suspected an adult driver f being alchl impaired r a yuth under 21 f having a BAC greater than zer. In practice, fficers administered the SFSTs t all mtrists wh exhibited any bjective behavir r ther cue assciated with having cnsumed alchl, even if impairment was nt evident. A breath, bld, r urine test was administered t all mtrists wh perfrmed the SFSTs, but nly after the fficer had made an arrest/n arrest decisin based n the fficer s scring f the driver s SFST perfrmance, and recrded a BAC estimate. The data cllectin frm structured the prcedure by presenting all fficer actins as a series f numbered steps. Requiring fficers t recrd the time f BAC estimates and BAC tests ensured that fficers estimates were nt influenced by the results f the chemical tests. Cmpleted data cllectin frms were sent t Anacapa Sciences n a weekly basis fr data entry. In sme states, such as Califrnia, fficers have the right t administer a breath test t a driver wh has exhibited any bjective sign f alchl-cnsumptin. Cmpliance is mandatry if the fficer can articulate a reasnable suspicin f the mtrist having cnsumed alchl (such as the dr f an alchlic beverage). SFSTs were administered nly t drivers wh exhibited sme bjective DWI cue, thus, n prblems were experienced in btaining BAC data, even frm subjects whse SFST perfrmance was acceptable. The field breath test was cnducted as the final step after the SFST prcedure was cmpleted, which is the de fact prcedure fllwed by mst fficers wh are equipped with field breath testing devices. T further ensure cmpliance with study prcedures, the participating law enfrcement fficers signed a statement affirming that they wuld abide by the established study prcedures. In additin, prject staff mnitred the data cllectin effrt, peridically riding alng with participating fficers t ensure that study prcedures were being fllwed. Cmpnent 6: Cntrls Extraneus variables that culd affect the utcme f the study must be cntrlled t the extent pssible. The cntrls that were implemented t ensure the validity f study results have been discussed in this sectin, including systematic prcedures and the use f nly trained and experienced fficers. Cmpnent 7: Data Analyses The data analysis plan was designed t answer the fllwing research questins. Hw accurately d the tests discriminate between subjects wh are abve r belw 0.08 and 0.04 percent BACs? Which f the cmpnents f the SFST battery is/are the best predictr(s) f BAC? Hw reliable, r cnsistent, are the tests? Are the tests usable by plice fficers? Are they readily accepted by fficers and prsecutrs?

213 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent NHTSA/ANACAPA SFST VALIDATION DATA FORM Adult Male Officer ID: Driver: Under 21 Female Age: Mnth Day 1996 Time f Stp: hr min FIELD SOBRIETY TESTS ADMINISTERED 1. HORIZONTAL GAZE NYSTAGMUS TEST Clues Right Eye Left Eye Ttal HGN Clues (6 clues maximum) 4 r mre 0.08 / 2 r mre 0.04 Clues 2. ONE LEG STAND TEST (secnds) Sways while balancing 3. WALK AND TURN TEST Lses balance while listening t instructins 4. ESTIMATE OF BAC BASED ON SFSTS: Time f estimatin hr min 5. SUBJECT BAC Refused PBT Uses arms fr balance Hps t maintain balance Puts ft dwn Cannt perfrm test (4 clues -- maximum) Ttal One Leg Stand Clues 2 r mre 0.08 Starts befre instructins are finished 1st 9 2nd 9 Stps while walking Des nt tuch heel t te Steps ff the line Raises arms fr balance Incrrect number f steps Truble with turn (explain) Other Lack f smth pursuit Nystagmus at maximum deviatin Nystagmus nset befre 45 degrees Clues Cannt perfrm the test (8 clues -- maximum) Ttal Walk and Turn Clues 2 r mre = Clues Time f PBT test hr min Time f ther test hr min Breath Bld Urine 6. DISPOSITION: Warning Citatin DUI Arrest Figure 3. Data cllectin frm used in the validatin study

214 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent SUBTASK 4.2. TRAINED OFFICERS IN THE USE OF THE SFSTS Dr. Marcelline Burns, ne f the investigatrs wh develped the SFST battery, develped and cnducted the refresher training fr the participating fficers. Dr. Burns research and training experience in this field ensured that fficers received effective and credible refresher instructin. Dr. Burns was assisted in the training sessin by the prject directr and NHTSA COTR. SUBTASK 4.3. IMPLEMENTED EXPERIMENTAL DESIGN AND COLLECTED DATA Implementatin f the experiment design began immediately fllwing the cmpletin f fficer refresher training n 23 May 1996 and cntinued thrugh 9 Nvember. Specific study prcedures were: Only fficers wh were members f the San Dieg Plice Department s alchlenfrcement unit and wh received NHTSA-apprved SFST training participated directly in the study. Dr. Marcelline Burns prvided brief refresher training t all participating fficers t ensure a cnsistent and systematic apprach t SFST administratin during the study. Upn cmmencement f the study perid, participating fficers used nly the SFST Battery (i.e., Hrizntal Gaze Nystagmus, Walk and Turn, One Leg Stand) tgether with their bservatins f a driver s general appearance and speech, t establish inferences abut a subject fr whm there was reasnable suspicin f driving while impaired. In ther wrds, n tests ther than the three SFSTs were perfrmed. Participating fficers perfrmed the administratin steps in the sequence specified n the data cllectin frm; that is, they, 1. Administered the Hrizntal Gaze Nystagmus test and recrded results. 2. Administered the One Leg Stand test and recrded results. 3. Administered the Walk and Turn test and recrded results. 4. Used the scring systems that were printed n the data cllectin frm (by cunting test clues ) t estimate the subject s BAC. Recrded their estimate f the subject s BAC based n SFST perfrmance, tgether with their bservatins f the subject s general appearance and speech. Als, they recrded the time when their estimate was made. 5. Checked the bx that indicated the dispsitin f the stp: Warning, Citatin, r Arrest. 6. Recrded the subject s BAC btained frm a field breath test; r, checked the apprpriate bx fr ther tests r respnses. Bld and urine test results were prvided later; every effrt was made t btain a breath test result fr all subjects. Recrded the time when the BAC test was perfrmed. Obtained a BAC fr all subjects wh were administered SFSTs as the final step in the test administratin prcedure. BACs were btained fr all subjects tested including thse subjects wh fficers estimated, n the basis f SFST results, t have BACs belw the legal limit. Participating fficers cmpleted and submited a data cllectin frm fr each subject tested during the study perid; that is, all administratins f the SFST battery by

215 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent participating fficers were recrded n a data cllectin frm and submitted fr analysis. All cmpleted data cllectin frms were sent t Anacapa Sciences, Inc., fr data entry and analysis. SUBTASK 4.4 CONDUCTED COURT AND POLICE INTERVIEWS The final data cllectin task was the cnduct f pen-ended interviews with participating plice fficers and prsecutrs wh were expsed t the new SFSTs during DWI cases. The purpses f the interviews were t determine if the tests were acceptable t the fficers fr use in the field and t the prsecutrs fr use f test results in curt. TASKS 5 AND 6: ANALYZED DATA AND PREPARED FINAL REPORT All data cllectin frms were returned t Anacapa Sciences, Inc., sequentially numbered, and the cntents entered int a cmputerized data base. Data analyses were perfrmed by the prject directr and Dr. Marcelline Burns. The results f thse analyses are presented in the fllwing sectin f this reprt

216 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent RESULTS This study was cnducted t evaluate the accuracy f NHTSA s Standardized Field Sbriety Test Battery in assisting fficers t make arrest decisins at BACs abve and belw 0.08 percent under field cnditins. A secndary bjective f the study was t evaluate the pssibility that the test battery als culd be used t assist fficers in making arrest decisins at BACs lwer than 0.08 percent. The seven participating fficers frm the San Dieg Plice Department s alchl-enfrcement unit cmpleted a ttal f 298 data cllectin frms during the study perid; nly ne case was eliminated frm analysis because the subject refused t submit t any frm f BAC testing. Officer cmpliance with study prcedures and mtivatin t participate in the study remained high thrughut the data cllectin perid. EVALUATION OF SFST ACCURACY Three methds were used t evaluate the accuracy f the SFST battery t discriminate at the BACs f interest: cmparisn f means, crrelatin analyses, and decisin analyses. COMPARISON OF MEANS Table 2 presents a summary f the estimated and measured BAC data by age categry. The table shws that 91.9 percent f the mtrists tested were adults, cmpared t 8.1 percent yuth, defined as mtrists under the age f 21 years. The mean estimated and measured BACs f the yunger mtrists were apprximately lwer than the BACs f the adults tested during the field study. The fficers mean estimated BACs, hwever, were very clse t the mean measured BACs fr bth adults and yuth; n average, the difference between fficers estimates and the actual BACs were nly percent fr adults and percent fr yuth. TABLE 2 ESTIMATED AND MEASURED BAC (%) BY AGE CATEGORY Age Estimated Measured Categry Number Percent BAC (Mean) BAC (Mean) Adults Yuth Ttal Table 3 presents a summary f the estimated and measured BAC data by gender categry. The table shws that 87.9 percent f the mtrists tested were males, cmpared t 12.1 percent females, with adults and yuth cmbined. The mean estimated BACs f the male and female mtrists tested were identical (i.e., percent). Again, fr bth categries, the fficers mean estimated BACs were very clse t the mean measured BACs; n average, the difference between fficers estimates and the actual BACs were nly percent fr males and percent fr females

217 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent TABLE 3 ESTIMATED AND MEASURED BAC (%) BY GENDER Estimated Measured Gender Number Percent BAC (Mean) BAC (Mean) Male Female Ttal Table 4 presents a mre detailed accunting f the estimated and measured BAC data by age and gender categry, and by the dispsitin f the enfrcement stp. In additin, the table shws that 73 percent f all mtrists wh were tested during the field study were arrested fr DWI based n SFST perfrmance and fficer evaluatins. Apprximately 22 percent f the mtrists tested received warnings and five percent were cited fr a mtr vehicle vilatin ther than DWI. TABLE 4 ESTIMATED AND MEASURED BAC (%) BY DISPOSITION, AGE CATEGORY, AND GENDER Dispsitin & Estimated Measured Categry Number Percent BAC (Mean) BAC (Mean) Warnings Adults Male Adults Female Adults Yuth Male Yuth Female Yuth Citatins Adults Male Adults Female Adults Yuth Male Yuth Female Yuth Arrests Adults Male Adults Female Adults Yuth Male Yuth Female Yuth Ttal

218 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent The data presented in Table 4 als shw that fficers tended t slightly verestimate the BACs f mtrists wh had lwer BACs, and slightly under-estimate BACs at the higher levels. Overall, hwever, fficers estimates were extremely accurate. Based n SFST results and fficers bservatins, the fficers mean estimated BAC f the 297 mtrists was percent, cmpared t the mean measured BAC f Althugh statistically significant, the difference f percent BAC is a trivial and peratinally irrelevant under-estimate f actual BACs that is within the margin f errr f sphisticated evidentiary testing equipment. CORRELATION ANALYSES The accuracy f the SFSTs was further evaluated by cnducting a series f crrelatin analyses t identify the degree t which fficers individual estimates f BAC crrespnded with subjects actual, r measured, BAC. A crrelatin cefficient is a statistic, usually represented as r, that expresses the relatedness f tw variables, that is, the degree t which the variables c-vary. In this case, the tw variables were an fficer s estimate and the subject s actual BAC. The Pearsn prduct-mment crrelatin methd was used t calculate the relatinship between these variables; cases with cmplete SFST results (n=261) were used in this analysis. If fficers had predicted the precise BACs f all subjects (t three decimal pints), the crrelatin cefficient wuld be +1.00; the crrelatin cefficient wuld be zer if there were n relatinship between the estimated and actual BACs. Fr predictive measures, especially thse administered under field cnditins, a crrelatin f 0.65 t 0.70 is cnsidered t be very high. Table 5 presents the results f the crrelatin analyses. The table shws that HGN test results had the highest crrelatin with measured BAC f the three cmpnents f the SFST battery (r=0.65). Hwever, a slightly higher crrelatin was btained when the results f the three cmpnent tests were cmbined (r=0.69). The table als shws strng crrelatins between test results and fficers estimated BACs, indicating that fficers were fllwing prcedures and interpreting test results crrectly. All f the crrelatins were fund t be statistically significant (p=.005). TABLE 5 CORRELATIONS OF SFST SCORES TO ESTIMATED AND MEASURED BAC (%) N=261 CASES WITH COMPLETE SFST SCORES Crrelatin (r) Crrelatin (r) with Estimated with Measured Rank SFST(s) BAC BAC 1 3 Tests Cmbined HGN Walk-and-Turn One Leg Stand

219 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent DECISION ANALYSES The third methd used t evaluate the accuracy f the SFST battery was t cnstruct a decisin matrix that describes the fur pssible cmbinatins f the tw variables f interest, estimated and actual BACs abve and belw the levels f interest. Figure 4 presents the first decisin matrix, with the fur majr cells f the matrix representing the fur pssible decisins at 0.08 percent BAC. The numbers in the majr cells are the number f cases fr each type f decisin ut f the 297 SFST administratins. The tw shaded cells represent crrect decisins based n SFST results: 1) 210 mtrists wh fficers estimated t have BACs equal t r greater than 0.08 percent, wh later were fund t have BACs 0.08 by BAC testing (by breath, bld, r urine analysis); and, 2) 59 mtrists wh fficers estimated t have BACs belw 0.08 percent, wh later tested belw Figure 4 als reveals the incrrect decisins: 1) 24 mtrists wh fficers estimated t have BACs greater than 0.08 wh later were fund t have BACs belw that level (false psitives); and, 2) fur subjects wh fficers estimated t have BACs belw 0.08 wh later tested abve 0.08 (false negatives). It can be calculated frm the data cntained in Figure 4 that fficers decisins were accurate in 91 percent f the 297 cases (i.e., [210+59] 297=.906). Further, fficers decisins t arrest were crrect in 90 percent f the cases in which BAC was estimated t be 0.08 (i.e., =.897), and decisins nt t arrest were crrect in 94 percent f the cases in which BAC was estimated t be belw 0.08 (i.e., 59 63=.937). These results indicate a high degree f accuracy, but it will be instructive t cnsider mre clsely thse cases in which incrrect decisins were made. Officers' Estimated BACs <0.08% 0.08% Measured BACs 0.08% <0.08% n=4 n=59 n=210 n=24 n=214 n=83 n=63 n=234 Accurate in 91% f cases verall 90% accurate in "yes" decisins 94% accurate in "n" decisins N=297 Figure 4. Decisin matrix at 0.08 percent BAC

220 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent Table 6 presents a summary f the data fr each f the 24 false psitives (FPs). These cases are labeled False Psitives because the fficers estimated the subjects BACs t be 0.08 percent, but subsequent testing fund BACs belw Hwever, in several cases, fficers were crrect in identifying impairment, which prbably influenced their estimates f BAC. TABLE 6 SUMMARY OF FALSE POSITIVES Case Number Estimated BAC (%) Number f HGN Clues Measured BAC (%) Is Estimate Cnsistent with Clues? yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes n n n n n/a 0.030? n n n In 16 f the cases listed in Table 6, the fficers estimates f BAC were cnsistent with the number f HGN clues bserved (i.e., fur r mre HGN clues t

221 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent supprt an estimate 0.08), hwever, the mtrists subsequently were fund t have actual BACs belw 0.08 percent. In seven f the cases, the fficers estimated BACs were incnsistent with the number f HGN clues bserved. It is imprtant t nte that six f the 24 false psitives had measured BACs f 0.07 percent, and three had BACs greater than 0.07 but less than 0.08 (i.e., 0.074, 0.076, and 0.078). All nine f these BACs are within the margin f errr f the testing devices. Further, Case Number 16 was a juvenile (0.069), which rendered the difference between estimated and measured BACs irrelevant in a zer tlerance jurisdictin; that is, it was a crrect arrest decisin despite the BAC estimate. In additin, tw f the subjects with measured BACs f 0.07 were arrested fr DWI, because the fficers believed that they were t impaired t be permitted t drive. Finally, Case Number 30, with an estimated BAC f 0.08 and a measured BAC f 0.05 percent, was fund t be a psychiatric patient, which helped t explain her erratic behavir, pr SFST perfrmance, and apparent impairment. Althugh the prprtins f crrect decisins presented in Figure 4 reflect a high degree f accuracy, the accuracy f fficers decisins is even better if sme f the brderline cases are accepted. An accuracy rate f 94 percent fr all fficer decisins based n SFST results was calculated by including as crrect decisins Case 16 (the yuth with a percent BAC) and the nine false psitives with BACs between 0.07 and 0.08, discussed in the previus paragraph. Table 7 summarizes the fur cases in which fficers estimated the subjects BACs t be belw 0.08 percent, but later fund the measured BACs t be Six HGN clues wuld be expected fr Case Number 193 (0.10 percent) and Case Number 99 (0.12 percent). It is unknwn why the fficers bserved nly tw HGN clues. In cntrast, fficers recrded fur HGN clues fr Case Number 131 and Case Number 114, which wuld indicate BACs greater than 0.08, hwever, the fficers estimated- BACs were nly 0.06 percent. It is unknwn why the fficers did nt fllw the test interpretatin guidelines in these tw cases; their lw estimates prbably reflect ther bservatins made in cmbinatin with SFST perfrmance. TABLE 7 SUMMARY OF FALSE NEGATIVES Case Number Estimated BAC (%) Number f HGN Clues Measured BAC (%) Is Estimate Cnsistent with Clues? yes yes n n Similarly, in seven f the false psitive cases listed previusly in Table 6, fficers apparently did nt fllw the test interpretatin guidelines; that is, fewer than fur HGN clues were reprted, yet the fficers estimated-bacs were at least

222 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent 0.08 percent. It is pssible that ther factrs influenced the fficers estimates. Fr example, the subjects might have appeared t be mre impaired than indicated by HGN results as a cnsequence f prescriptin r recreatinal drugs taken in additin t alchl. A series f decisin analyses was perfrmed t calculate the cntributins f the cmpnent tests f the battery t fficers estimates f BAC. Figure 5 presents three decisin matrices, ne fr each f the SFSTs. The matrices are similar t the ne in Figure 4, but with the criterin numbers f clues at 0.08 percent BAC substituted fr fficers estimates. Figure 5 shws the HGN test t be the mst accurate independent predictr f whether a mtrist s BAC is abve r belw 0.08 percent. Number f HGN Clues < 4 4 Measured BACs 0.08% <0.08% n=4 n=51 n=205 n=30 n=209 n=81 Number f WAT Clues < 2 2 n=55 n=235 Accurate in 88% f cases verall 87% accurate in "yes" decisins 93% accurate in "n" decisins N=290 Number f OLS Clues < 2 2 Measured BACs 0.08% <0.08% n=16 n=36 n=179 n=40 n=195 n=76 Measured BACs <0.08% 0.08% n=16 n=44 n=182 n=31 n=198 n=75 n=52 n=219 N=271 n=60 n=213 N=273 Accurate in 79% f cases verall 82% accurate in "yes" decisins 69% accurate in "n" decisins Accurate in 83% f cases verall 86% accurate in "yes" decisins 73% accurate in "n" decisins Figure 5. Decisin matrices at 0.08 percent BAC fr each cmpnent test f the SFST battery

223 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent Further analyses were perfrmed t explre methds fr cmbining the results f the three cmpnent tests. Only the 261 cases that included test results fr all three cmpnent tests culd be used in this analysis. Of thse cases, 73 were fund t have BACs belw 0.08 percent and 188 cases had measured BACs 0.08 percent. In 162 f the 188 cases (86 percent), all three cmpnent SFSTs were unanimus in their predictins. Figure 6 presents a Venn diagram that illustrates the cntributins f the three tests t the 14 percent f cases in which a discrepancy ccurred. The figure shws there were 162 cases with BACs 0.08 in which all three SFSTs indicated a BAC 0.08 (the number utside the circles in Figure 6), and 26 cases in which ne r mre test disagreed (the numbers inside the circles). A single test indicated a BAC belw 0.08 in 17 f the cases (8+2+7), and tw tests were invlved in nine f the cases (1+1+7). There were n cases in which all three tests predicted incrrectly. HGN WAT OLS 162 Cases 0.08% BAC in which all three tests agree (represented by the area utside the three circles) Figure 6. Venn diagram f 188 cases 0.08% BAC; 26 cases in which all three tests d nt agree. The hrizntal gaze nystagmus test (HGN in the diagram) was abut fur times less likely t be the surce f a discrepancy than the ther tw tests. Only tw f the single-test discrepancies were attributable t HGN results, cmpared t eight cases fr the Walk and Turn test (WAT), and seven cases fr the One Leg Stand (OLS). Overall, the HGN test was invlved in nly fur f the discrepancies, cmpared t 16 cases fr the Walk and Turn and 15 cases fr the One Leg Stand. The questin f the SFST battery s accuracy in discriminating BACs abve and belw 0.04 percent is addressed by the fllwing decisin matrix, presented in Figure 7; the shaded cells f the matrix again represent crrect decisins based n SFST results. The figure shws that fficers estimated mtrists BACs t be equal t r greater than 0.04 but under 0.08 percent in 54 cases, and in 51 f thse cases their estimates were fund t be crrect by subsequent breath, bld, r urine testing;

224 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent these values result in an accuracy rate f 94 percent fr these decisins (i.e., 51 54=.94). The figure als shws that fficers estimated that 29 mtrists had BACs belw 0.04, and in 15 f thse cases their estimates were fund t be crrect by subsequent testing, resulting in a 52 percent accuracy rate (15 29=.52). Overall, fficers were accurate in 80 percent f the cases when discriminating between subjects wh were abve 0.04 but belw 0.08 percent BAC (i.e., [51+15] 83=.80). Officers' Estimated BACs <0.04% 0.04 <0.08% Measured BACs <0.04% 0.04 <0.08% n=14 n=15 n=51 n=3 n=65 n=18 n=29 n=54 Accurate in 80% f cases verall 94% accurate in "yes" decisins 52% accurate in "n" decisins N=83 Figure 7. Decisin matrix at 0.04 percent BAC. EVALUATION OF SFST ACCEPTABILITY In interviews and during ride-alng bservatins, the fficers wh participated in the study fully accepted the SFSTs fr evaluating mtrists fr DWI at BACs belw 0.10 percent. All f the fficers were frmally trained in SFST administratin and scring and all had sufficient field experience t develp cnfidence in their abilities t discriminate at the 0.08 level. Further, it was the fficers experience with the SFST battery that the cmpnent tests culd be administered t all but a small prprtin f drivers and under all reasnable envirnmental cnditins. Interviews als were cnducted with representatives f the San Dieg City Attrney s Office t inquire cncerning the acceptability f the SFSTs t prsecutrs and judges in DWI cases. The attrneys interviewed reprted that nne f the 298 DWI arrests made by participating fficers during the study perid was negatively affected by the SFST battery, r by excluding the ther tests that traditinally had been used by the department

225 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent The attrneys further explained that as prsecutrs they nrmally prefer as much evidence as pssible, and in a DWI case mre tests usually generate mre evidence they can use. Hwever, it has been their recent experience that a test used by anther lcal law enfrcement agency has negatively affected cases they have prsecuted. Defense attrneys have been unsuccessful in their challenges f NHTSA s SFST battery, but they have successfully challenged the validity f the ther test because it has nt been evaluated in a systematic and scientific manner. Prsecutrs wh were interviewed suggested that the ptimum situatin wuld be fr all law enfrcement agencies t restrict their field sbriety evaluatins t the same standardized battery f three tests

226 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent IMPLICATIONS The research dcumented in this reprt fund that NHTSA s Standardized Field Sbriety Test Battery accurately and reliably assists fficers in making DWI arrest decisins at 0.08 percent BAC. The study als fund that the SFSTs can be used t assist fficers in making arrest decisins at 0.04 percent BAC by using tw HGN clues as the criterin rather than fur clues, which is the criterin fr a 0.08 percent r abve BAC determinatin. The primary implicatin f the study results is that the SFST battery is a valid methd fr making radside DWI decisins at 0.08 and 0.04 percent BAC. Specific implicatins f the study results are presented in the fllwing paragraphs in respnse t the research questins listed previusly. HOW ACCURATELY DO THE TESTS DISCRIMINATE BETWEEN SUBJECTS WHO ARE ABOVE OR BELOW 0.08 AND 0.04 PERCENT BACS? This study fund NHTSA s SFST battery t be an accurate methd fr discriminating mtrists BACs abve and belw 0.08 percent and abve and belw 0.04 percent, when the tests are cnducted by trained fficers, as summarized belw. COMPARISON OF MEANS The mean estimated BAC f the 297 mtrists included in the study was percent, cmpared t the mean measured BAC f The difference f percent BAC (i.e., five ne-thusandths f a percent BAC) is very small and peratinally irrelevant. The accuracy f fficers estimates during this study, in large measure, cnfirms the anecdtal accunts and bservatins f fficers in the field that suggest remarkable abilities t predict a mtrists BAC n the basis f SFST results. CORRELATION ANALYSES Crrelatin analyses fund the HGN test t be very predictive f measured BACs (r=0.65). A higher crrelatin was btained when the results f the three cmpnent tests were cmbined (r=0.69). All f the crrelatins are statistically significant, meaningful, and in the rank rder expected frm previus SFST research. DECISION ANALYSES Decisin analyses fund that fficers estimates f whether a mtrist s BAC was abve r belw 0.08 r 0.04 percent were extremely accurate. Estimates at r abve the 0.08 level were accurate in 91 percent f the cases, r as high as 94 percent if explanatins fr ten f the false psitives are accepted. Estimates at r abve the 0.04 level (but belw 0.08) were accurate in 94 percent f the relevant cases. It is imprtant t nte that fficers decisins nt t arrest were mre accurate at 0.08 than at 0.04 (94 percent cmpared t 52 percent). Althugh the relatively small number f lw BACs in the data base (n=83) might cnstrain cnfidence in the SFSTs at the 0.04 level, the data strngly suggest

227 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent peratinal utility t accurately discriminate abve r belw 0.04 percent BAC. Further, these results are cnsistent with the results f a recent study cnducted t evaluate the SFST battery fr use by fficers in Clrad. Clrad has a tw-tier statute that permits fficers t arrest mtrists fr driving under the influence (DUI) if fund t have a BAC 0.10 percent, and fr a lesser ffense, driving while ability impaired (DWAI), if fund t have a BAC 0.05 but belw percent. Of the 234 drivers tested during the Clrad study fr whm BACs were knwn, 93 percent f the fficers decisins t arrest at the 0.05 percent criterin were crrect, and 64 percent f the decisins t release were crrect. Overall in the Clrad study, 86 percent f the fficers decisins at the 0.05 level were crrect, based n SFST results (Burns and Andersn, 1995; Andersn and Burns, 1997). WHICH OF THE COMPONENTS OF THE SFST BATTERY IS/ARE THE BEST PREDICTOR(S) OF BAC? The hrizntal gaze nystagmus test was fund t be the mst predictive f the three cmpnent tests, but crrelatins with measured BACs were higher when the results f all three tests were cmbined, as reprted earlier. The implicatins f this study result are that all cmpnents f the SFST battery shuld be administered when pssible r practical. Hwever, the data indicate that the HGN test alne can prvide valid indicatins t supprt fficers arrest decisins at bth 0.08 and 0.04 percent BAC. HOW RELIABLE, OR CONSISTENT, ARE THE TESTS? Reliability is a measurement cncept that represents the cnsistency with which a test measures a type f perfrmance r behavir. In the current cntext, a reliable field sbriety test prvides cnsistent results when administered t the same individual by tw different fficers, under nearly identical cnditins. This type f inter-rater reliability was impssible t measure directly during this study, due t the cnstraints impsed by field cnditins. In particular, it wuld have been unrealistic t subject mtrists t the SFST battery twice, r t require that fficers perate in pairs during their patrls. Evidence f SFST reliability can be fund in the results f the previus labratry studies, in which the cnstraints n repeated measure were eliminated by the use f paid subjects and fficers. Tharp, Burns, and Mskwitz (1981) fund relatively high inter-rater reliability fr BAC estimates based n SFST results (r=.72). The researchers als fund that inter-rater reliability increased in subsequent sessins (r=.80), indicating the imprtant rle f training and experience in achieving accuracy, reliability, and verall prficiency. In additin, crrelatin cefficients, in general, are measures f reliability. Fr this reasn, the crrelatins between estimated and actual BACs btained during the field study (r=.69) indicate a high degree f reliability fr tests designed t be administered at radside

228 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent ARE THE TESTS USABLE BY POLICE OFFICERS UNDER A VARIETY OF ROADSIDE CONDITIONS? ARE THEY READILY ACCEPTED BY OFFICERS AND PROSECUTORS? All f the fficers wh participated in this study were members f the San Dieg Plice Department s alchl enfrcement unit, all had previusly received NHTSA-apprved training in DWI detectin and SFST administratin, and all had at least three years f experience in the Traffic Divisin befre jining the special unit. Prir t beginning the field study, the fficers demnstrated cmpetence in the administratin f the cmpnent tests and interpretatin f test results. Participatin was limited t members f the alchl-enfrcement unit f a single law enfrcement agency. These experience and training requirements were impsed, t cntrl variables, t the extent pssible, that might affect study results. As a cnsequence f the selectin criteria, all participating fficers were prficient in the use f the SFST battery. The fficers reprted that they use their SFST skills daily in their wrk, and their experience has made them cnfident in the ability f the test battery t discriminate at 0.08 percent BAC, and at lwer levels. Further, fficers reprted that the tests can be administered in all reasnable envirnmental cnditins. In shrt, the fficers wh participated in this study cnsider the SFST battery t be extremely useful, in fact, essential tls fr the perfrmance f their prfessinal duties. The prsecutrs interviewed during the study reprted that the SFST battery has been acceptable t them and the curts because it was develped and validated in a systematic and scientific manner. They suggested that all law enfrcement agencies shuld limit fficers t use f the SFST battery in perfrmance evaluatins f DWI because ther tests usually lack credibility in curt. N prblems were experienced in any f the 298 cases resulting frm the field study, indicating the SFSTs t be fully acceptable t the curts in establishing prbable cause t arrest a mtrist fr DWI. NOTE ABOUT THE ACCEPTABILITY OF THE HGN TEST Many law enfrcement fficers frm acrss the United States have reprted their sincere appreciatin t NHTSA fr develping the SFST battery, and in particular, the hrizntal gaze nystagmus test. Hwever, sme fficers have expressed frustratin abut the resistance f sme curts t accept HGN results, despite the clear and unequivcal supprt f scientific research and field experience. It is likely that this remaining resistance t the hrizntal gaze nystagmus test is attributable t a misunderstanding cncerning the purpse f a field sbriety test, and can be explained by reference t face validity, a term used in the behaviral sciences t describe ne cmpnent f a measure s acceptability. Many individuals, including sme judges, believe that the purpse f a field sbriety test is t measure driving impairment. Fr this reasn, they tend t expect tests t pssess face validity, that is, tests that appear t be related t actual driving tasks. Tests f physical and cgnitive abilities, such as balance, reactin time, and infrmatin prcessing, have face validity, t varying degrees, based n the

229 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent invlvement f these abilities in driving tasks; that is, the tests seem t be relevant n the face f it. Hrizntal gaze nystagmus lacks face validity because it des nt appear t be linked t the requirements f driving a mtr vehicle. The reasning is crrect, but it is based n the incrrect assumptin that field sbriety tests are designed t measure driving impairment. Driving a mtr vehicle is a very cmplex activity that invlves a wide variety f tasks and peratr capabilities. It is unlikely that cmplex human perfrmance, such as that required t safely drive an autmbile, can be measured at radside. The cnstraints impsed by radside testing cnditins were recgnized by the develpers f NHTSA s SFST battery. As a cnsequence, they pursued the develpment f tests that wuld prvide statistically valid and reliable indicatins f a driver s BAC, rather than indicatins f driving impairment. The link between BAC and driving impairment is a separate issue, invlving entirely different research methds. Thse methds have fund driving t be impaired at BACs as lw as 0.02 percent, with a sharp increase in impairment at abut 0.07 percent (Mskwitz and Rbinsn, 1988; Stuster, 1997). Thus, SFST results help fficers t make accurate DWI arrest decisins even thugh SFSTs d nt directly measure driving impairment. Hrizntal gaze nystagmus is the mst accurate diagnstic f BAC available t fficers in the field. HGN s apparent lack f face validity t driving tasks is irrelevant because the bjective f the test is t discriminate between drivers abve and belw the statutry BAC limit, nt t measure driving impairment. Thrughut the United States, DWI laws permit arrest decisins t be made n the basis f the statutry BAC limit, irrespective f a specific mtrist s degree f impairment. Mtrists als can be arrested at BACs belw the statutry limit if their driving perfrmance is demnstrably impaired by alchl r ther drugs. CONCLUSIONS The results f this study prvide clear evidence f the validity f the Standardized Field Sbriety Test Battery t discriminate abve r belw 0.08 percent BAC. Further, study results strngly suggest that the SFSTs als accurately discriminate abve r belw 0.04 percent BAC. Finally, in additin t establishing the validity f the SFST battery, this study has fund the tests t be acceptable, indeed welcmed, by law enfrcement fficers and DWI prsecutrs

230 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent REFERENCES Andersn, E.W. and Burns, M. (1997). Standardized Field Sbriety Tests: A Field Study. Prceedings f the 14th Internatinal Cnference n Alchl, Drugs and Traffic Safety Vlume 2, Aschan, G. (1958). Different types f alchl nystagmus. Acta Otlarynglgy, Supplement 140, Burns, M. and Andersn, E.W. (1995). A Clrad Validatin Study f the Standardized Field Sbriety Test (SFST) Battery. Clrad Department f Transprtatin. Burns, M. and Mskwitz, H. (1977). Psychphysical Tests fr DWI Arrest. U.S. Department f Transprtatin, Natinal Highway Traffic Safety Administratin Final Reprt DOT-HS , Washingtn, D.C. Harris, D.H., Dick, R.A., Casey, S.M.,and Jarsz, C.J. (1980). The Visual Detectin f Driving While Intxicated. U.S. Department f Transprtatin, Natinal Highway Traffic Safety Administratin Final Reprt DOT-HS Harris, D.H. (1980). Visual detectin f driving while intxicated. Human Factrs, 22(6), Lehti, H.M.J. (1976). The effects f bld alchl cncentratin n the nset f gaze nystagmus. Blutalkhl, Vl. 13, Mskwitz, H., and Rbinsn, C.D. (1988). Effects f Lw Dses f Alchl n Driving-Related Skills: A Review f the Evidence. U.S. Department f Transprtatin, Natinal Highway Traffic Safety Administratin, DOT-HS , Washingtn, D.C. Pentilla, A., Tenhu, M., and Kataja, M. (1971). Clinical Examinatin Fr Intxicatin In Cases f Suspected Drunken Driving. Statistical and Research Bureau f TALJA. Is Rbertinkatu 20, Helsinki, Finland. Stuster, J.W. (1997). The Detectin f DWI at BACs Belw U.S. Department f Transprtatin, Natinal Highway Traffic Safety Administratin Final Reprt (in press). Stuster, J.W. (1993). The Detectin f DWI Mtrcyclists. U.S. Department f Transprtatin, Natinal Highway Traffic Safety Administratin Final Reprt DOT-HS

231 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent Tharp, V., Burns, M., and Mskwitz, H. (1981). Develpment and Field Test f Psychphysical Tests fr DWI Arrest. U.S. Department f Transprtatin, Natinal Highway Traffic Safety Administratin Final Reprt DOT-HS , Washingtn, D.C. Wilkinsn, I.M.S., Kime, R., and Purnell, M. (1974). mvement. Brain, 97, Alchl and human eye

232 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent APPENDIX A STANDARDIZED FIELD SOBRIETY TESTING

233 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent STANDARDIZED FIELD SOBRIETY TESTING The Standardized Field Sbriety Test (SFST) is a battery f three tests administered and evaluated in a standardized manner t btain validated indicatrs f impairment and establish prbable cause fr arrest. These tests were develped as a result f research spnsred by the Natinal Highway Traffic Safety Administratin (NHTSA) and cnducted by the Suthern Califrnia Research Institute. A frmal prgram f training was develped and is available thrugh NHTSA t help plice fficers becme mre skillful at detecting DWI suspects, describing the behavir f these suspects, and presenting effective testimny in curt. Frmal administratin and accreditatin f the prgram is prvided thrugh the Internatinal Assciatin f Chiefs f Plice (IACP). The three tests f the SFST are: Hrizntal gaze nystagmus (HGN), Walk-and-turn, and One-leg stand. These tests are administered systematically and are evaluated accrding t measured respnses f the suspect. HGN TESTING Hrizntal gaze nystagmus is an invluntary jerking f the eye which ccurs naturally as the eyes gaze t the side. Under nrmal circumstances, nystagmus ccurs when the eyes are rtated at high peripheral angles. Hwever, when a persn is impaired by alchl, nystagmus is exaggerated and may ccur at lesser angles. An alchl-impaired persn will als ften have difficulty smthly tracking a mving bject. In the HGN test, the fficer bserves the eyes f a suspect as the suspect fllws a slwly mving bject such as a pen r small flashlight, hrizntally with his r her eyes. The examiner lks fr three indicatrs f impairment in each eye: if the eye cannt fllw a mving bject smthly, if jerking is distinct when the eye is at maximum deviatin, and if the angle f nset f jerking is within 45 degrees f center. If, between the tw eyes, fur r mre clues appear, the suspect likely has a BAC f 0.10 r greater. NHTSA research indicates that this test allws prper classificatin f apprximately 77 percent f suspects. HGN may als indicate cnsumptin f seizure medicatins, phencyclidine, a variety f inhalants, barbiturates, and ther depressants. WALK AND TURN The walk-and-turn test and ne-leg stand test are divided attentin tests that are easily perfrmed by mst unimpaired peple. They require a suspect t listen t and fllw instructins while perfrming simple physical mvements. Impaired persns have difficulty with tasks requiring their attentin t be divided between simple mental and physical exercises. In the walk-and-turn test, the subject is directed t take nine steps, heel-t-te, alng a straight line. After taking the steps, the suspect must turn n ne ft and

234 Final Reprt Validatin f the SFST Battery at BACs Belw 0.10 Percent return in the same manner in the ppsite directin. The examiner lks fr eight indicatrs f impairment: if the suspect cannt keep balance while listening t the instructins, begins befre the instructins are finished, stps while walking t regain balance, des nt tuch heel-t-te, steps ff the line, uses arms t balance, makes an imprper turn, r takes an incrrect number f steps. NHTSA research indicates that 68 percent f individuals wh exhibit tw r mre indicatrs in the perfrmance f the test will have a BAC f 0.10 r greater. ONE LEG STAND In the ne-leg stand test, the suspect is instructed t stand with ne ft apprximately six inches ff the grund and cunt alud by thusands (One thusand-ne, ne thusand-tw, etc.) until tld t put the ft dwn. The fficer times the subject fr 30 secnds. The fficer lks fr fur indicatrs f impairment, including swaying while balancing, using arms t balance, hpping t maintain balance, and putting the ft dwn. NHTSA research indicates that 65 percent f individuals wh exhibit tw r mre such indicatrs in the perfrmance f the test will have a BAC f 0.10 f greater. COMBINED MEASURES NHTSA s SFST training materials instruct fficers in the use f the fllwing decisin table fr cmbining the results f the HGN and Walk and Turn test. Walk and Turn Clues HGN Clues Alng the tp f the table, circle the number f the subject's HGN clues. Alng the left side f the table, circle the number f the subject's Walk and Turn clues. Draw a line dwn frm the number f HGN clues and a line acrss frm the number f Walk and Turn clues. If the intersectin is within the shaded area, the subject has a BAC 0.10 percent

235 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

236 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results:

237 SESSION IX TEST BATTERY DEMONSTRATIONS HS 178 R2/06

238 SESSION IX TEST BATTERY DEMONSTRATIONS Upn successfully cmpleting this sessin, the participant will be able t: Demnstrate the apprpriate administrative prcedures fr the Standardized Field Sbriety Testing Battery. CONTENT SEGMENTS LEARNING ACTIVITIES A. Live Classrm Demnstratins Instructr-Led Demnstratin B. Vide Demnstratin Participant Demnstratin Vide Presentatin HS 178 R2/06

239 TEST BATTERY DEMONSTRATIONS In this sessin, yu will have the pprtunity t bserve several demnstratins f the three Standardized Field Sbriety Tests. Yur instructrs will cnduct sme f these demnstratins. Other demnstratins will be prvided n vide. HS 178 R2/06 IX-1

240 SESSION X "DRY RUN" PRACTICE SESSION HS 178 R2/06

241 SESSION X "DRY RUN" PRACTICE SESSION Upn successfully cmpleting this sessin, the participant will be able t: Demnstrate the prper administratin f the three Standardized Field Sbriety Tests. CONTENT SEGMENTS LEARNING ACTIVITIES A. Prcedures and Grup Assignments Instructr-Led Presentatin B. Live Administratin f SFST Battery Instructr-Led Demnstratin C. Hands On Practice Participant Practice Sessin HS 178 R2/06

242 "DRY RUN" PRACTICE SESSION In this sessin, yu will wrk with ther participants, taking turns administering the Standardized Field Sbriety Tests t each ther. When yu are nt administering a test r serving as the test subject, yu will be expected t bserve the test administratr and subsequently help critique their perfrmance. The Student Perfrmance Checklist (shwn n the next tw pages) shuld be used t help yu mnitr a fellw student's perfrmance as a test administratr. HS 178 R2/06 X-1

243 PARTICIPANT PERFORMANCE CHECKLIST STANDARDIZED FIELD SOBRIETY TEST BATTERY Student Name: Date: I. HORIZONTAL GAZE NYSTAGMUS 1. Have subject remve glasses if wrn. 2. Stimulus held in prper psitin (apprximately 12"-15" frm nse, slightly abve eye level). 3. Check fr equal pupil size and resting nystagmus. 4. Check fr equal tracking. 5. Smth mvement frm center f nse t maximum deviatin in apprximately 2 secnds and then back acrss subject's face t maximum deviatin in right eye, then back t center. Check left eye, then right eye. (Repeat) 6. Eye held at maximum deviatin fr a minimum f fur secnds (n white shwing). Check left eye, then right eye. (Repeat) HS 178 R2/06 X-2

244 7. Eye mved slwly (apprximately 4 sec.) frm center t 45 angle. Check left eye, then right eye. (Repeat) 8. Check fr Vertical Gaze Nystagmus. (Repeat) II. WALK-AND-TURN 1. Instructins given frm a safe psitin. 2. Tells subject t place feet n line in heel-t-te manner (left ft behind right ft) with arms at sides and gives demnstratin. 3. Tells subject nt t begin test until instructed t d s and asks if subject understands. 4. Tells subject t take nine heel-t-te steps and demnstrates. 5. Explains and demnstrates turning prcedure. 6. Tells subject t return with nine heel-t-te steps. HS 178 R2/06 X-3

245 7. Tells subject t cunt steps ut lud. 8. Tells subject t lk at feet while cunting. 9. Tells subject nt t raise arms frm sides. 10. Tells subject nt t stp nce they begin. 11. Asks subject if all instructins are understd. III. ONE-LEG STAND 1. Instructins given frm a safe psitin. 2. Tells subject t stand straight, place feet tgether, and hld arms at sides. 3. Tells subject nt t begin test until instructed t d s and asked if subject understands. 4. Tells subject t raise ne leg, either leg, apprximately 6" frm the grund, keeping raised ft parallel t the grund, and gives demnstratin. HS 178 R2/06 X-4

246 5. Tells subject t keep bth legs straight and t lk at elevated ft. 6. Tells subject t cunt by thusands in the fllwing manner: ne thusand and ne, ne thusand and tw, ne thusand and three, until tld t stp, and gives demnstratin. 7. Checks actual time subject hlds leg up. Instructr: HS 178 R2/06 X-5

247 SESSION XI "TESTING SUBJECTS" PRACTICE: FIRST SESSION HS 178 R2/06

248 SESSION XI "TESTING SUBJECTS" PRACTICE: FIRST SESSION Upn successfully cmpleting this sessin, the participant will be able t: Prperly administer the SFST's. Prperly bserve and recrd subject's perfrmance utilizing the standard ntetaking guide. Prperly interpret the subject's perfrmance. Prper use and maintenance f the SFST Field Arrest Lg. CONTENT SEGMENTS LEARNING ACTIVITIES A. Prcedures Instructr-Led Presentatin B. Hands-n Practice Participant Practice Sessin C. Use and Maintenance f SFST Field Instructr-Led Presentatin Arrest Lg D. Sessin Wrap-Up Instructr-Led Discussin HS 178 R2/06

249 "TESTING SUBJECTS" PRACTICE: FIRST SESSION During this sessin, yu will wrk with several ther participants t administer Standardized Field Sbriety Tests t vlunteers wh have cnsumed alchlic beverages. Sme f these vlunteers will have BACs abve Others will be belw that level. Yu will carefully nte and recrd the vlunteers' perfrmance, and attempt t distinguish thse abve 0.08 frm thse belw Yu will als learn t recrd yur bservatins n a SFST Field Arrest Lg. HS 178 R2/06 XI-1

250 SFST FIELD ARREST LOG Date Name HGN WAT OLS BAC +/-.08 Arrest Nt Arrest Measured BAC Remarks HS 178 R2/06 XI-2

251 ATTACHMENT(S)

252 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

253 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results:

254 SESSION XI-A "TESTING SUBJECTS" PRACTICE: FIRST SESSION (OPTIONS ONE OR TWO) HS 178 R2/06

255 SESSION XI-A "TESTING SUBJECTS" PRACTICE: FIRST SESSION (OPTIONS ONE OR TWO) Upn successfully cmpleting this sessin, the participant will be able t: Prperly administer the SFST's. Prperly bserve and recrd subject's perfrmance utilizing the standard nte taking guide. Prperly interpret the subject's perfrmance. Prper use and maintenance f the SFST Field Arrest Lg. CONTENT SEGMENTS LEARNING ACTIVITIES A. Prcedures Instructr-Led Presentatin B. Practical Exercise Participant Practice Sessin C. Use and Maintenance f SFST Field Instructr-Led Presentatin Arrest Lg D. Sessin Wrap-Up Instructr-Led Discussin HS 178 R2/06

256 "TESTING SUBJECTS" PRACTICE: FIRST SESSION If yu are attending either OPTION ONE OR OPTION TWO OF THIS TRAINING PROGRAM, yu will wrk with several ther participants in bserving vide-taped vlunteers wh have cnsumed alchlic beverages. Sme f these vlunteers will have BACs abve Others will be belw that level. Yu will carefully nte and recrd the vlunteers' perfrmance, and attempt t distinguish thse "0.08 and abve" frm thse "belw 0.08". Yu will als learn t recrd yur bservatins n a SFST Field Arrest Lg. IACP/NHTSA strngly recmmends that participants attending OPTION ONE OR OPTION TWO OF THIS TRAINING maintain a SFST Field Arrest Lg. HS 178 R2/06 XI-A-1

257 SFST FIELD ARREST LOG Date Name HGN WAT OLS BAC +/-.08 Arrest Nt Arrest Measured BAC Remarks HS 178 R2/06 XI-A-2

258 HANDOUT(S)

259 SESSION XII PROCESSING THE ARRESTED SUSPECT AND PREPARATION FOR TRIAL HS 178 R2/06

260 SESSION XII PROCESSING THE ARRESTED SUSPECT AND PREPARATION FOR TRIAL Upn successfully cmpleting this sessin, the participant will be able t: Discuss the imprtance f crrect prcessing and reprt writing prcedures in DWI arrests. Discuss the crrect sequence f DWI suspect prcessing prcedures. Discuss the essential elements f the DWI arrest reprt. Discuss the imprtance f pre-trial cnferences and presentatin f evidence in the DWI trial. CONTENT SEGMENTS LEARNING ACTIVITIES A. The Prcessing Phase Instructr-Led Presentatins B. Preparing the DWI Arrest Reprt: Dcumenting The Evidence Vide Presentatins C. Narrative DWI Arrest Reprt Interactive Discussin D. Case Preparatin and Pre-trial Vide Presentatins Cnference E. Guidelines fr Direct Testimny Vide Presentatins HS 178 R2/06

261 PROCESSING THE ARRESTED SUSPECT AND PREPARATION FOR TRIAL The successful prsecutin f a DWI case is dependent upn the fficer's ability t rganize and present all relevant evidence f each element f the DWI vilatin. The fficer must keep in mind that virtually all f this evidence must be cmpiled during the three phases f detectin -- vehicle in mtin, persnal cntact, and pre-arrest screening. The fficer must be able t establish the level f impairment at the time that the vilatin ccurred, therefre, bservatins are f critical imprtance. Subsequent evidence f impairment, such as the evidential chemical test result(s) and/r the evidence gathered during a drug evaluatin, will be admissible nly when a prper arrest has been made. The effrts expended in detecting, apprehending, investigating and testing/evaluating the DWI vilatr will be f little value if there is nt sufficient evidence t prve every element f the vilatin. Accrdingly, if the evidence is nt presented clearly and cnvincingly in curt, the case may be lst, n matter hw gd that evidence may be. Therefre, it is essential that fficers develp the ability t write a clear and cncise reprt describing their bservatins and results f their investigatin fr presentatin t the prsecutr. What is evidence? Evidence is any means by which sme alleged fact that has been submitted t investigatin may either be established r disprved. Evidence f a DWI vilatin may be f varius types: a. Physical (r real) evidence: smething tangible, visible, audible (e.g. a bld sample r a partially empty can f beer). b. Well established facts (e.g. judicial ntice f accuracy f the breath test device when prper prcedures are fllwed). c. Demnstrative evidence: demnstratins perfrmed in curtrm (e.g. field sbriety tests). d. Written matter f dcumentatin (e.g. the citatin, the alchl influence reprt, the drug evaluatin reprt, evidential chemical test results, etc.). e. Testimny (the fficer's verbal descriptin f what was seen, heard, smelled, etc.). The prsecutr must be able t establish that the defendant was driving r perating a vehicle n a highway r within the state while under the influence f alchl r drugs. The prsecutr als must establish that the fllwing prcedures were fllwed: HS 178 R2/06 XII-1

262 a. That there were reasnable grunds fr arrest. 1. That the accused was the peratr r in actual physical cntrl f the vehicle. 2. That there were grunds fr stpping/cntacting the accused. 3. That there was prbable cause t believe that the accused was impaired. b. That prper arrest prcedures were fllwed. c. That prper regard was given t suspect's rights. d. That subsequent bservatin and interview f the suspect prvided additinal evidence relevant t the alleged ffense. e. That there was a prper request fr the suspect t submit t the chemical test. The prsecutr's case will largely be based upn the fficer's investigatin, and in particular n the arrest reprt. While it is true that many items which are critical t the prsecutin are dcumented n special frms, the fficer must keep in mind that the prsecutr may nt have the time t search ut relevant facts. The decisin may be made t amend r reduce r even dismiss the case n the basis f the arrest reprt alne. It is, therefre, essential that the reprt clearly and accurately describe the ttal sequence f events frm the pint the subject was first bserved, thrugh the arrest, the drug evaluatin (if cnducted), and subsequent release r incarceratin. HS 178 R2/06 XII-2

263 Guidelines fr Nte Taking One f the critical tasks in the DWI enfrcement prcess is the recgnitin and retentin f facts that establish prbable cause t stp, investigate and subsequently arrest persns suspected f driving r perating a vehicle while impaired by alchl and/r ther drugs. The evidence gathered during the detectin prcess must establish the elements f the vilatin, and must be dcumented t supprt successful prsecutin f the vilatr. This evidence is largely sensry (see-smell-hear) in nature, and therefre is extremely shrt lived. Plice fficers must be able t recgnize and act n facts and circumstances with which they are cnfrnted. But the fficer must als be able t recall thse bservatins, and describe them clearly and cnvincingly, t secure a cnvictin. The fficer is inundated with evidence f DWI (sights, sunds, smells, etc.) recgnizes it, and bases the decisin t stp, investigate and arrest n their bservatins. Since evidence f a DWI vilatin is shrt lived, plice fficers need a system and tls fr recrding field ntes at scenes f DWI investigatins. Technlgical advances have made it pssible t use audi tape recrders and vide tape recrders in the field and they prvide an excellent means f dcumenting this shrt lived evidence. Hwever, the vast majrity f fficers must rely n their wn field ntes. One way f imprving the effectiveness f field ntes is t use a structured nte taking guide. This type f frm makes it very easy t recrd brief "ntes" n each step f the detectin prcess, and ensures that vital evidence is dcumented. The field ntes prvide the infrmatin necessary fr cmpletin f required DWI reprt frms and assist the fficer in preparing a written accunt f the incident. The field ntes will als be useful if the fficer is required t prvide ral testimny, since they can be used t refresh the fficer's memry. A mdel nte taking guide has been develped fr use in the basic curse. DWI Detectin and Standardized Field Sbriety Testing curse (see attached cpy). Sectin I prvides space t recrd basic infrmatin describing the suspect, the vehicle, the lcatin, and the date and time the incident ccurred. Sectin II prvides space t recrd brief descriptins f the vehicle in mtin (Detectin Phase One), including initial bservatin f the vehicle in peratin, and bservatin f the stpping sequence. Sectin III prvides space t recrd brief descriptins f the persnal cntact with the suspect (Detectin Phase Tw), including bservatin f the driver, statements r respnses made by the driver r passengers, the results f any pre-exit sbriety tests, bservatin f the driver exiting the vehicle, and any drs that may be present. HS 178 R2/06 XII-3

264 Sectin IV prvides space t recrd the results f all field sbriety tests that were administered, and the results f the preliminary breath test (PBT) if it was given. Sectin V prvides space t recrd the fficer's general bservatins, such as the suspect's manner f speech, attitude, clthing, etc. Any physical evidence cllected shuld als be nted in this sectin. The Prcessing Phase The Prcessing Phase f a DWI Enfrcement incident is the bridge between arrest and cnvictin f a DWI ffender. Prcessing invlves the assembly and rganizatin f all f the evidence btained during the detectin phase, t ensure that the evidence will be available and admissible in curt. Prcessing als invlves btaining additinal evidence, such as a scientific chemical test r tests f the suspect's breath, bld, etc. Typically, the prcessing phase may invlve the fllwing tasks: Infrm the ffender that they are under arrest. "Pat-dwn" r frisk the ffender. Handcuff the ffender. Secure the ffender in the patrl vehicle. Secure the ffender's vehicle, passengers, prperty. Transprt the ffender t an apprpriate facility. (If applicable) arrange fr vide taping. Advise ffender f rights and bligatins under the Implied Cnsent Law. Administer the evidential chemical test(s). Advise ffender f Cnstitutinal Rights (Miranda Admnitin). Interview the ffender. Incarcerate r release the ffender. Cmplete the required reprts. Guidelines fr Writing the Narrative Reprt Reprt writing is an essential skill fr a plice fficer. Gd reprt writing becmes secnd nature with practice. While there is n ne best way t write an arrest reprt, it is helpful t fllw a simple frmat. Departmental plicies and/r special instructins r requirements f the prsecutr prvide sme guidance. Detectin and arrest During the detectin phase f the DWI arrest prcess, the arresting fficer must mentally nte relevant facts t supprt the decisin t arrest. HS 178 R2/06 XII-4

265 These facts are then recrded in the frm f field ntes and are used t refresh fficer's memry when the frmal arrest reprt is prepared. The fllwing blck utline frmat identifies sme f the essential ingredients in a DWI ffense (arrest) reprt: Initial Observatins - Describe yur first bservatins f the subject's actins. What drew yur attentin t the vehicle? Yur first bservatins are imprtant. Be sure t recrd the time and lcatin f the first event. Vehicle Stp - Recrd any unusual actins taken by the subject. Hw did the subject react t the emergency light and/r siren? Was it a nrmal stp? Be specific. Cntact Driver - Recrd yur bservatins f the subject's persnal appearance, cnditin f the eyes, speech, etc. Recrd the name and number f passengers in the vehicle and where they sat. Describe any unusual actins taken by the subject. Driving r Actual Physical Cntrl - In sme cases, yu may nt use the subject's driving behavir as the basis fr the cntact. Yur first cntact culd result frm a crash investigatin r a mtrist assistance type f cntact. Yur bservatins and dcumentatin must establish that the subject was driving r in actual physical cntrl f the vehicle. Exit Frm Vehicle - Recrd yur bservatins f the subject's exit frm the vehicle and include any unusual actins taken by the subject. Field Sbriety Tests - Describe the subject's actins when yu administered the field sbriety tests. Be specific. Arrest - Dcument the arrest decisin and ensure that all elements f the vilatin have been accurately described. Dispsitin/Lcatin f Vehicle and Keys - Indicate where the vehicle was secured r twed and the lcatin f the keys. If the vehicle was released t anther party r was driven by a backup fficer, recrd that fact. Dispsitin f Passenger and/r Prperty - Ensure that passengers and prperty are prperly cared fr. Transprtatin - Describe where the subject was transprted fr evidential testing. Dcument time f departure and arrival. (This HS 178 R2/06 XII-5

266 infrmatin can be btained frm the radi lg). Nte any spntaneus cmments made by the suspect. Evidential Test - Dcument which test(s) were administered and by whm. Be sure t include the evidential test(s). Implied Cnsent/Miranda Warning - Dcument that the admnishments were given at the apprpriate pint in the investigatin. Witness Statements - List all witnesses and attach cpies f their statements. Ntificatin f Offender's Attrney r Other Party - Dcument the time and result f subject's telephne call t an attrney r ther party. Citatin/Cmplaint - Dcument that the traffic citatin/cmplaint was issued at the apprpriate time if applicable. Incarceratin r Release - Dcument the time and place f incarceratin r the name and address f the respnsible party t whm the ffender was released. Be sure t recrd the time. Additinal Chemical Test - If the subject is authrized t request additinal chemical tests and des s, recrd the type f test, time administered, lcatin, and party administering the test. The freging list is nt intended t be all inclusive. In many cases, several pints will nt be needed. The narrative des nt have t be lengthy, but it must be accurate. Remember, successful prsecutin depends n yur ability t describe the events yu bserved. Often a trial can be avided (i.e., an ffender may plead guilty) when yu d a gd jb in preparing yur arrest reprt. A sample reprt prviding an example f the blck utline frmat is attached. Case Preparatin and Pre-trial Cnference Case preparatin begins with yur first bservatin and cntact with the suspect. It is essential that all relevant facts and evidence are mentally nted and later dcumented in field ntes r ther fficial frms. Guidelines fr Case Preparatin Use field ntes t dcument evidence. HS 178 R2/06 XII-6

267 Accurately nte statements and ther bservatins. Review the case with ther fficers wh witnessed the arrest r therwise assisted yu and write dwn relevant facts. Cllect and preserve all physical evidence. Prepare all required dcuments and a narrative reprt. Resume. Remember, it is essential that all reprts be cnsistent. If differences ccur, be sure t adequately explain them. The defense will try t impeach yur testimny by pinting ut seemingly minr incnsistencies. Preparatin fr Trial Upn receipt f a subpena r ther ntificatin f a trial date, review all recrds and reprts t refresh yur memry. If apprpriate, revisit the scene f the arrest. Cmpare ntes with assisting fficers t ensure that all facts are clear. During discvery, list all evidence and prperly dcument it. Remember, evidence may be excluded if prper prcedures are nt fllwed. Attentin t detail is very imprtant. Pre-trial Cnference Successful prsecutin is dependent upn the prsecutr's ability t present a clear and cnvincing case based n yur testimny, physical evidence, and supprting evidence/testimny frm ther witnesses and experts. If at all pssible, arrange a pretrial cnference with the prsecutr. Review with the prsecutr all evidence and all basis fr yur cnclusins. If there are strng/weak pints in yur case, bring them t the prsecutr's attentin. Ask the prsecutr t review the questins t be asked n the witness stand. Pint ut when yu d nt knw the answer t a questin. Ask the prsecutr t review questins and tactics the defense attrney may use. Make sure yur resume is current. Review yur credentials and qualificatins with the prsecutr. HS 178 R2/06 XII-7

268 If yu cannt have a pretrial cnference, try t identify the main pints abut the case, and be sure t discuss these with the prsecutr during the few minutes yu will have just befre the trial. Guidelines fr Direct Testimny Yur basic task is t establish the facts f the case: that the suspect was driving r in actual physical cntrl f a vehicle, n a highway r ther specified lcatin, within the curt's jurisdictin, and was impaired by alchl and/r ther drugs. In ther wrds, t present evidence t establish prbable cause fr the arrest and cnclusive evidence that the vilatin in fact was cmmitted. Describe in a clear and cnvincing manner all relevant bservatins during the three detectin phases and thse subsequent t the arrest. Describe clearly hw the suspect perfrmed (e.g., "stepped ff the line twice, raised the arms three times, etc."). By presenting yur bservatins clearly and cnvincingly, yu will allw the fact f the suspect's impairment t speak fr itself. Always keep in mind that juries typically fcus n an fficer's demeanr as much r mre than n the cntent f the testimny. Strive t maintain yur prfessinalism and impartiality. Be clear in yur testimny; explain technical terms in layman's language; dn't use jargn, abbreviatins, acrnyms, etc. Be plite and curteus. D nt becme agitated in respnse t questins by the defense. Abve all, if yu dn't knw the answer t a questin, say s. Dn't guess at answers, r cmprmise yur hnesty in any way. Be prfessinal and present evidence in a fair and impartial manner. Typical Defense Tactics In many cases, yu will be the key witness fr the prsecutin. Therefre, the defense will try very hard t cast dubt n yur testimny. The defense may ask sme questins t challenge yur bservatins and interpretatins. Fr example, yu may be asked whether the signs, symptms and behavirs yu bserved in the suspect culdn't have been caused by an injury r illness, r by smething ther than the alchl/drugs yu cncluded were present. Yu may als be asked questins whse purpse is t make it appear as if yu weren't really certain that yu actually saw what yu say yu saw. Answer these questins hnestly, but carefully. If yur bservatins are nt cnsistent with what an illness r injury wuld prduce, explain why nt. Make it clear that yur cnclusins abut alchl/drug impairment is based n interpretatin f the bserved facts. HS 178 R2/06 XII-8

269 The defense may als attempt t challenge yur credentials by asking questins t cast dubt n the frmal training yu have had. There may als be an attempt t ask questins t "trip yu up" n technical r scientific issues, and make it appear that yu are less knwledgeable than yu shuld be r claim t be. Stick t abslute hnesty. Answer all questins abut yur training fully and accurately, but dn't embellish. Dn't try t make the training appear t have been mre elabrate r extensive than it really was. Answer scientific r technical questins nly if yu knw the answer. Otherwise, admit that yu dn't knw. Dn't try t fake r guess the answers. And, the defense may ask questins t challenge yur credibility. Yu may be asked several very similar questins, in the hpe that yur answers will be incnsistent. Yu may be asked questins whse purpse is t shw that yu had already frmed yur pinin well befre the suspect cmpleted the field sbriety tests. And, yu may be asked questins that try t suggest that yu eliminated prtins f the tests r nly gave incmplete r cnfusing instructins. Guard against these kinds f defense challenges by always perfrming cmplete, standardized field sbriety tests, exactly as yu have been taught. Standardizatin will ensure bth cnsistency and credibility. HS 178 R2/06 XII-9

270 ATTACHMENT(S)

271

272

273

274

275

276 Defendant: Eryn Greenfield Age: 31 Date f Birth: 10/03/70 Date f Arrest: XX-XX-XX Time f Arrest: 9:20 pm CA - D.L. #: CA First Observatins: DWI INCIDENT REPORT On XX-XX-XX at apprximately 9:00 p.m., I was patrlling westbund n Reed Avenue at the intersectin with Interstate-80 (fully marked CHP patrl vehicle #904534). I was stpped at the intersectin preparing t make a left turn nt eastbund I-80. I bserved a yellw Vlkwagn (S/V) traveling dwn the eastbund I-80 exit ramp appraching the intersectin with Reed Avenue. I nticed the S/V traveling with n headlights. Furthermre, I nticed the right tires f the S/V travel ver the slid white fg line n the exit ramp by apprximately 2 feet. The S/V made a brief stp at the intersectin, then made a right turn nt eastbund Reed Avenue. I made a U-turn and fllwed the S/V. The S/V then made a wide right turn frm Reed Avenue nt suthbund Riverpint Drive. An enfrcement stp was initiated at which pint the S/V began t pull t the right. At the pint the right frnt tire f the S/V rubbed up nt the raised cncrete curb that paralleled the radway. Observatins After The Stp: I apprached the S/V n the passenger side and made cntact with the driver (cnvertibletp dwn). I immediately nticed that the driver had red and watery eyes. I advised her f the reasn fr the stp and asked if her vehicle had any mechanical prblems. She stated, n. I requested her driver s license, registratin, and insurance. The driver remved a stack f cards frm her wallet, which was lcated in her purse n right frnt passenger seat. She began sifting thrugh the stack f cards. I bserved her clearly pass by her license and cntinue searching thrugh the cards. Unable t lcate her license n the first attempt, she started ver at the tp and lcated the license n the secnd attempt. She was identified as Eryn Greenfield by Califrnia driver s license (#CA ). After handing me the license, she did nt make an attempt t retrieve the ther dcuments I had requested. I asked her again fr the registratin and insurance cards. She then retrieved them ut f the glve cmpartment. I asked her hw much alchl she had cnsumed and she stated a cuple f beers abut an hur ag. I asked her what size and type f beer and she replied with 12z. bttles f Heineken. I asked her if she felt the effects f the drinks and she stated, N, I feel fine. As she spke, I nticed that her speech was slurred. I asked her t exit the vehicle and step t the side walk s I culd administer several field sbriety tests t her (see field sbriety test sectin). As she exited the vehicle, she stepped arund the frnt as instructed, then stumbled n the raised curb. I asked her several pre-field sbriety test questins f which she answered accrdingly (see page 2 f face page). As I cmmunicated with her, I smelled an dr f alchlic beverage emitting frm her breath. HS 178 R2/06 1

277 Field Sbriety Tests: This evaluatin was perfrmed n Riverpint Drive, just suth f Reed Avenue. The evaluatin surface was smth cncrete. Lighting cnditins cnsisted f patrl vehicle headlights, sptlights, verhead lights, streetlight, and my flashlight. N surface defects were nted r claimed. Hrizntal Gaze Nystagmus (explained): I bserved lack f smth pursuit, distinct and sustained nystagmus at maximum deviatin, and an nset f nystagmus prir t 45 degrees in bth f Greenfield s eyes. Walk and Turn (explained and demnstrated): Instructin Stage: Lst balance (feet brke apart) Walking Stage (1 st Nine): Walked 10 steps (cunted 10). Raised left arm ver 6 inches away frm bdy t assist with balance (at steps 4-5). Walking Stage (2 nd Nine): Walked 10 steps (cunted 9). Raised left arm ver 6 inches away frm bdy t assist with balance (at steps 6-7). Turn: Lst balance during turn. One Leg Stand (explained and demnstrated): Greenfield raised her left leg and began cunting. She put her ft dwn n cunts 1006 and As she was cunting, she skipped 1017 (cunting frm 1016 t 1018). Used right arm fr balance (6+ inches frm bdy). She cunted t 1019 after 30 secnds. Arrest: Based n the fllwing infrmatin, I frmed the pinin that Greenfield was driving under the influence f an alchlic beverage:! Driving at night with n headlights.! Driving t the right f the slid white fg line n exit ramp.! Making wide right turn frm eastbund Reed Avenue t suthbund Riverpint Drive.! Right tire rubbing against raised cncrete curb after stp was initiated.! My bserved divided attentin prblems while retrieving her license/registratin and insurance.! Her red, watery eyes, and slurred speech.! Her admissins t cnsuming alchlic beverages. HS 178 R2/06 2

278 ! Stumbling ver curb after exiting the vehicle.! Odr f alchlic beverage emitting frm her breath.! My bserved signs f impairment as she perfrmed the field sbriety tests. I arrested Greenfield fr driving under the influence f an alchlic beverage at 9:20 p.m. Greenfield was given the prper chemical testing advisement. She chse a breath test and was transprted t the breath testing facility. She prvided tw breath samples f 0.10 and 0.10 at 9:50 p.m. and 9:52 p.m. She was then bked alng with her prperty. Recmmendatins: I recmmend a cpy f this reprt be frwarded t the district attrney s ffice fr review and prsecutin f Greenfield fr driving under the influence and driving with a bld alchl cncentratin at r abve the legal state limit. Vehicle Dispsitin: Greenfield s vehicle was stred by Reliable Twing. HS 178 R2/06 3

279 SESSION XIII REPORT WRITING EXERCISE AND MOOT COURT HS 178 R2/06

280 SESSION XIII REPORT WRITING EXERCISE AND MOOT COURT Upn successfully cmpleting this sessin, the participant will be able t: Discuss the required infrmatin n a narrative arrest reprt. Successfully cmplete a narrative arrest reprt. Discuss the need fr cmpetent curtrm testimny. Demnstrate the prper techniques f curtrm testimny. CONTENT SEGMENTS LEARNING ACTIVITIES A. Prcedures and Assignments Instructr-Led Presentatin B. Reprt Writing Exercise Vide Presentatin C. Participant s Curtrm Testimny Exercise Writing Skills Exercise Curtrm Testimny Exercise Instructr-Led Discussin HS 178 R2/06

281 REPORT WRITING EXERCISE AND MOOT COURT In this sessin, yu will view a vide f a simulated DWI arrest, after which yu will write a narrative arrest reprt based n yur bservatins. Sme students subsequently will be selected t "testify" abut the incident in a mt curt. HS 178 R2/06 XIII-1

282 ATTACHMENT(S)

283 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

284 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results:

285 SESSION XIV "TESTING SUBJECTS" PRACTICE: SECOND SESSION HS 178 R2/06

286 SESSION XIV "TESTING SUBJECTS" PRACTICE: SECOND SESSION Upn successfully cmpleting this sessin, the participant will be able t: Prperly administer the SFST's. Prperly bserve and recrd subject's perfrmance utilizing the standard ntetaking guide. Prperly interpret the subject's perfrmance. CONTENT SEGMENTS LEARNING ACTIVITIES A. Prcedures Instructr-Led Presentatin B. Hands-n Practice Participant Practice Sessin C. Sessin Wrap-Up Instructr-Led Discussin HS 178 R2/06

287 "TESTING SUBJECTS" PRACTICE: SECOND SESSION During this sessin, if yu are attending the CORE CURRICULUM r OPTION ONE training class, yu will wrk with several ther participants t administer Standardized Field Sbriety Tests t vlunteers wh have cnsumed alchlic beverages. Sme f these vlunteers will have BACs abve Others will be belw that level. Yu will carefully nte and recrd the vlunteers' perfrmance, and attempt t distinguish thse "0.08 and abve" frm thse "belw 0.08". Yu will be recrding yur bservatins n the SFST Field Arrest Lg. HS 178 R2/06 XIV-1

288 STUDENT PERFORMANCE CHECKLIST STANDARDIZED FIELD SOBRIETY TEST BATTERY Student Name: Date: I. HORIZONTAL GAZE NYSTAGMUS 1. Have subject remve glasses if wrn. 2. Stimulus held in prper psitin (apprximately 12"-15" frm nse, slightly abve eye level). 3. Check fr equal pupil size and resting nystagmus. 4. Check fr equal tracking. 5. Smth mvement frm center f nse t maximum deviatin in apprximately 2 secnds and then back acrss subject's face t maximum deviatin in right eye, then back t center. Check left eye, then right eye. (Repeat) 6. Eye held at maximum deviatin fr a minimum f fur secnds (n white shwing). Check left eye, then right eye. (Repeat) 7. Eye mved slwly (apprximately 4 sec.) frm center t 45 angle. Check left eye, then right eye. (Repeat) 8. Check fr Vertical Gaze Nystagmus. (Repeat) II. WALK-AND-TURN 1. Instructins given frm a safe psitin. 2. Tells subject t place feet n line in heel-t-te manner (left ft behind right ft) with arms at sides and gives demnstratin. 3. Tells subject nt t begin test until instructed t d s and asks if subject understands. 4. Tells subject t take nine heel-t-te steps and demnstrates. 5. Explains and demnstrates turning prcedure. 6. Tells subject t return with nine heel-t-te steps. HS 178 R2/06 XIV-2

289 7. Tells subject t cunt steps ut lud. 8. Tells subject t lk at feet while cunting. 9. Tells subject nt t raise arms frm sides. 10. Tells subject nt t stp nce they begin. 11. Asks subject if all instructins are understd. III. ONE-LEG STAND 1. Instructins given frm a safe psitin. 2. Tells subject t stand straight, place feet tgether, and hld arms at sides. 3. Tells subject nt t begin test until instructed t d s and asked if subject understands. 4. Tells subject t raise ne leg, either leg, apprximately 6" frm the grund, keeping raised parallel t the grund and gives demnstratin. 5. Tells subject t keep bth legs straight and t lk at elevated ft. 6. Tells subject t cunt by thusands in the fllwing manner: ne thusand and ne, ne thusand and tw, ne thusand and three, until tld t stp, and gives demnstratin. 7. Checks actual time subject hlds leg up. Instructr: HS 178 R2/06 XIV-3

290 ATTACHMENT(S)

291 DWI INVESTIGATION FIELD NOTES I. NAME SEX RACE ADDRESS CITY/STATE OP.LIC.NO. D.O.B. / / SOC. SEC. # VEHICLE MAKE YEAR LIC. STATE DISPOSITION NO. PASSENGERS INCIDENT LOCATION DATE / / TIME CRASH YES NO II. VEHICLE IN MOTION INITIAL OBSERVATIONS OBSERVATION OF STOP III. PERSONAL CONTACT OBSERVATION OF DRIVER STATEMENTS PRE-EXIT SOBRIETY TESTS OBSERVATION OF THE EXIT ODORS GENERAL OBSERVATIONS SPEECH ATTITUDE CLOTHING PHYSICAL DEFECTS / DRUGS OR MEDICATIONS USED IV. PRE-ARREST SCREENING HORIZONTAL GAZE NYSTAGMUS LEFT RIGHT Equal Pupils 9 Yes 9 N k LACK OF SMOOTH PURSUIT Equal Tracking 9 Yes 9 N k DISTINCT AND SUSTAINED NYSTAGMUS AT MAXIMUM DEVIATION Vertical Nystagmus 9 Yes 9 N k ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES Other (i.e., Resting Nystagmus)

292 WALK AND TURN INSTRUCTIONS STAGE CANNOT KEEP BALANCE STARTS TOO SOON WALKING STAGE FIRST NINE STEPS SECOND NINE STEPS STOPS WALKING MISSES HEEL -TO- TOE STEPS OFF LINE RAISES ARMS ACTUAL STEPS TAKEN IMPROPER TURN (Describe) CANNOT DO TEST (EXPLAIN) OTHER: ONE LEG STAND L R Sways while balancing. Uses arms t balance. Hpping. Puts ft dwn. Type f Ftwear CANNOT DO TEST (EXPLAIN) OTHER: OTHER FIELD SOBRIETY TESTS NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE NAME OF TEST DESCRIBE PERFORMANCE PBT (1) (ptinal) Time: Results: PBT (2) (ptinal) Time: Results: