The Science of SFSTs: Probable Cause or Probably Mistaken?

Transcription

1 The Science of SFSTs: Probable Cause or Probably Mistaken? Utah Association of Criminal Defense Lawyers DUI Seminar Salt Lake City, Utah May 8, 2015 Steven Oberman Oberman & Rice 550 Main Street, Suite 730 Knoxville, Tennessee (865) website: blog: Copyright by Steven Oberman Reproduction in whole or in part is expressly prohibited without prior written permission of the author.

2 The Science of SFSTs: Probable Cause or Probably Mistaken? Steven Oberman Oberman & Rice 550 Main Street, Suite 730 Knoxville, Tennessee (865) website: blog: INTRODUCTION... 1 I. STANDARDS FOR SOBRIETY TESTS... 3 History and Background... 3 Standardization... 4 Test Conditions... 6 Suspect Conditions... 8 Validation of the Tests... 9 II. DETECTION PHASES OF DUI Phase One: Vehicle in Motion Phase Two: Personal Contact Phase Three: Pre-arrest Screening III. ADMINISTRATION OF FIELD SOBRIETY TESTS The Horizontal Gaze Nystagmus Test The Walk-and-Turn Test The One-Leg Stand Test IV. NON-STANDARDIZED FIELD SOBRIETY TESTS The Finger to Nose Test The Finger Count Test The Hand Pat or Palm Pat Test Coin Pickup The Alphabet Test Reverse Counting The Writing/Drawing/Tracing Tests The Romberg Test V. PSYCHO-PHYSIOLOGICAL CONSIDERATIONS ii

3 VI. CONSIDERATIONS FOR THE COURTROOM The Officer s Unfair Advantage Unfair Grading Procedures The Officer on Trial Use the Entire Manual Phase One Vehicle in Motion Phase Two Personal Contact VII. CONCLUSION APPENDIX A (National Park Service FST Field Note Form) APPENDIX B (Video Checklist) APPENDIX C (Field Sobriety Test Alternative Grading System) APPENDIX D (State of Maryland v. Brightful) iii

4 INTRODUCTION Field sobriety tests have existed as long as the enforcement of DUI laws. For years, field sobriety tests varied not only among officers within the same law enforcement agency, but also from one agency to another. Field sobriety tests were limited only by the officers collective imaginations. Today, though, most law enforcement agencies have adopted certain field sobriety tests that are standardized and therefore theoretically more objective than others. Non-standardized field sobriety tests, however, are not only mentioned, but are detailed in the DUI detection manuals published by the National Traffic Highway Safety Administration (NHTSA). 1 The purpose of the field sobriety tests, as detailed in the manual, is to assist the officer in making an arrest decision based on the subject s performance on these quasi-scientific and/or divided attention tasks. 2 Dividing the subject s attention is discussed throughout the manual. 3 The premise is that an impaired person will not be able to perform more than one task at the same time as well as one who is not impaired. To a certain extent, if not entirely, this premise is flawed because it requires one to conclude whether the subject is performing within his or her normal abilities without considering factors such as environmental conditions, mental acuity differences, anxiety levels, and other physical and psychological deficiencies. In other words, without a 1 See e.g., U.S. Department of Transportation, National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing, Participant Guide, Session 6, Pages (2013) (hereinafter, Participant Guide ). Note that all earlier editions were referred to as a Student Manual, 2 Participant Guide, Session 4, Page 5 (2013). 3 Participant Guide, Session 6, Pages 9-11 (2013); Student Manual, VI-4-5, VII-4-7 (2006). 1

5 baseline that defines a particular subject s normal behavior and abilities, it is impossible to reach a valid conclusion. These materials discuss both standardized and non-standardized field sobriety tests, as well as other factors that officers use to determine impairment. Interestingly, NHTSA changed the title of its publication in 2013 from Student Manual to that of Participant Guide. 4 Since the initial publication of this manual in 1984, NHTSA has periodically made significant changes, designating the Manuals or Guide by the year of publication (referred to herein as editions ). It is noteworthy, however, that other than NHTSA s three validation studies in the 1990s, 5 no further studies by either scientists or law enforcement have been conducted to justify the changes made in subsequent editions of the manual. 6 References in this paper are generally limited to the 2006 Manual and the 2013 Guide (the most recent at the time of publication). Attorneys should note that the 2013 edition of the manual includes substantial changes from all previous manuals in both content and format. I. STANDARDS FOR SOBRIETY TESTS 4 All references within the 2013 Participant Guide, however, still refer to the publication as a manual. 5 See generally Deputy Ellen Anderson & Marcelline Burns, Ph.D., A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery, (1995) (note this study was funded by the Colorado Department of Transportation utilizing funds from NHTSA) [often referred to as the Colorado Validation Study]; Sgt. Teresa Dioquino et al., A Florida Validation Study of the Standardized Field Sobriety (S.F.S.T.) Battery [often referred to as the Florida Validation Study]; Marcelline Burns & Jack Stuster, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (1998) [often referred to as the San Diego Validation Study]. 6 For detailed critiques of the statistical analyses of these validation studies see Michael Hlastala, Ph.D., Nayak Polissar, Ph.D. & Steven Oberman, J.D., Statistical Evaluation of Standardization Field Sobriety Tests, J. Forensic Sci., Vol. 50 No. 3, May, 2005; Steven Oberman and Sara Compher-Rice, The Standardized Field Sobriety Tests Validation Myth, The Champion, June 2006, at 35. 2

6 A. History and Background In the late 1970s the United States Department of Transportation, National Highway Traffic Safety Administration, funded research to evaluate physical coordination tests, which were being used at that time to determine the relationship between intoxication and driving impairment. The purpose of this research, conducted by the Southern California Research Institute (S.C.R.I.), 7 was to develop more sensitive tests that would provide more reliable evidence of impairment and to standardize those tests. In the original study, six different tests were administered. These included the One-Leg Stand, Finger-To-Nose, Finger Count, Walk-and-Turn, Tracing (a paper and pencil exercise), and Horizontal Gaze Nystagmus 8 (also referred to as alcohol gaze nystagmus ). The researchers concluded that a three-test battery, which included the Horizontal Gaze Nystagmus, Walk-and-Turn, and One-Leg Stand, offered a reliable field sobriety testing procedure to determine if the subject s blood alcohol level was.10% or greater. The researchers next step was to standardize these tests. Additional research was therefore conducted to complete the development and validation of this sobriety test battery and to assess the battery s feasibility in the field. Again, the Southern California Research Institute was awarded the grant to conduct the test validation research. 9 An 7 Marcelline Burns & Herbert Moskowitz, Psychophysical Tests for DWI, June 1977 NHTSA Report No. DOT HS (available from National Technical Information Service, Springfield, Virginia 22161). 8 An involuntary jerking of the eye. The 2013 edition adds, occurring as the eyes gaze to the side to the definition. Editions of the Student Manual published after 2000 state that alcohol and certain other drugs cause Horizontal Gaze Nystagmus. See, e.g., Participant Manual, Session 8, Page 11 (2013); Student Manual, VIII-3 (2006) (emphasis added). The 1995 and 2000 editions, however, specifically note that alcohol and certain other drugs do not cause this phenomenon, they merely exaggerate or magnify it. Student Manual, VIII-3 (2000); Student Manual, VIII-12 (1995). 9 V. Tharp, M. Burns & H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI 3

7 additional study was performed in the field to validate the three tests outside a laboratory setting and to systematize the administrative and scoring procedures. 10 However, a careful analysis of these studies indicates that the conclusions of these studies may be flawed in some respects. In particular, the conclusions regarding accuracy are heavily weighted by the large number of subjects with very high blood alcohol content (BLAC). 11 A statistical analysis of the original data indicates that the accuracy of the Standardized Field Sobriety Tests ( SFSTs ) depends on the BLAC level and is much poorer than that indicated in the original studies. The SFSTs may be more useful in identifying subjects with a blood alcohol level substantially greater than the current legal limit of 0.08%. 12 B. Standardization In standardizing these tests, the original researchers required that the tests must always be administered in the same way after all, that is the definition of standardize. The original research standardized three portions of the tests: 1) The administration of the tests (the environment and the instructions given to the subject); 2) The clues (which observations or symptoms are significant); and 3) The criteria (scoring or interpreting the subject s performance). Specifically, the researchers determined that the officer administering the tests should always look for a specific set of clues on each Arrest, March 1981, NHTSA Report No. DOT HS (available from National Technical Information Service, Springfield, Virginia 22161; 10 T. Anderson, R. Schweitz & M. Snyder, Field Evaluation of a Behavioral Test Battery for DWI, September 1983 NHTSA Report No. DOT HS (available from National Technical Information Service, Springfield, Virginia 22161; 11 See generally, Michael P. Hlastala,1 Ph.D.; Nayak L. Polissar, Ph.D.; and Steven Oberman, J.D., Statistical Evaluation of Standardized Field Sobriety Tests, Journal of Forensic Sciences, May 2005, at See generally, Michael P. Hlastala,1 Ph.D.; Nayak L. Polissar, Ph.D.; and Steven Oberman, J.D., Statistical Evaluation of Standardized Field Sobriety Tests, Journal of Forensic Sciences, May 2005, at 1. 4

8 test, and should always assess a subject s performance relative to a specific criterion for each test. 13 These researchers recognized that some persons will have great difficulty or will be unable to perform these tests even when they are not impaired. 14 In the late 1990s the National Highway Traffic Safety Administration funded three additional studies relating to the Standardized Field Sobriety Tests. 15 According to NHTSA, the results of these validation studies provided clear evidence of the validity of the tests. NHTSA further states that these validation studies support arrest decisions at above or below.08% and that the results strongly suggest that the sobriety test battery accurately discriminates blood alcohol concentrations at.04% and above. 16 However, in addition to the integrity issues noted above, the validity of these tests has been criticized and found to be void of any legitimate scientific value. 17 The 2013 edition of the Guide is the first to include a reference to this recent research in the Test Interpretation section for each of the Standardized Field Sobriety Tests in Session 8 of the manual. 18 It is also the first edition to state that each test is used to determine when a subject s blood alcohol concentration is at or above 0.08%, as opposed to above 0.10%. 19 Interestingly, the 2013 edition of the manual has, without any explanation or additional research, switched to relying on the validation studies to assess the accuracy of the SFSTs. All earlier editions referenced the statistical 13 This statement was included in editions prior to See, e.g., Student Manual, VIII-19 (2006). The 2013 edition refers to the tests as standardized and discusses the researcher s aim of creating standardized procedures, clues, and criteria, but it does not include a requirement of standardization for validation. Participant Guide, Session 8, Page 6 (2013). 14 Participant Guide, Session 8, Pages 41 and 49 (2013); Student Manual, VIII-11 and 14 (2006). 15 Participant Guide, Session 8, Page 7 (2013); Student Manual, VIII-2 (2006). 16 Participant Guide, Session 8, Page 10 (2013); Student Manual, VIII-3 (2006). 17 Phillip B. Price, Sr. and Spurgeon Cole, Ph.D., NHTSA Field Sobriety Tests Validation v. Invalidation, The Champion, April 2001, at See, e.g., Participant Guide, Session 8, Pages 37, 47, 53 (2013). 19 See, e.g., Participant Guide, Session 8, Pages 37, 47, 53 (2013). 5

9 data from the original research, but the statistics used in the 2013 edition originate from the later validation studies. 20 For example, in editions prior to 2013, the HGN was listed as 77% accurate in predicting a blood alcohol level above 0.10%; in the 2013 edition, the manual claims that the HGN is 88% accurate in predicting a blood alcohol level at or above 0.08% Test Conditions Common knowledge dictates that the testing environment can have a great impact on one s performance on psychophysical tests. Accordingly, the Student Manual has historically outlined the conditions required for administration of the Walk-and-Turn and One-Leg Stand tests, though the particular verbiage has been altered over the years with little or no researched bases. The conditions for both tests indicate they should be conducted on a reasonably dry, hard, level, non-slippery surface whenever possible. 22 The 2013 edition deleted a previously significant requirement that of a designated straight line. The guide also notes that recent field validation studies have indicated that varying environmental conditions have not affected a suspect s ability to perform the 20 Jack Stuster & Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent: Final Report 21 (Aug. 1998). 21 Participant Guide, Session 8, Page 37 (2013). Similarly, the One-Leg Stand was previously listed as 65% accurate but is now listed as 83% accurate for predicting a blood alcohol level at or above 0.08%, and the Walk and Turn test was previously listed as 68% accurate but is now listed as 79% accurate. See Participant Guide, Session 8, Pages 47, 53 (2013). 22 Participant Guide, Session 8, Pages 41 and 49 (2013). Earlier editions did not state that the listed conditions should be achieved whenever possible ; rather, editions published before 2013 stated that the test required these conditions. Student Manual, VIII-11, 13 (2006). The 1995 edition of the Student Manual did not include the word reasonably before the description of the surface required for the test. Unlike the 2000 and subsequent editions, the 1995 edition states that the test should be conducted under reasonably safe conditions. The 1995 edition further states that if these conditions do not exist, subjects should be asked to perform the test elsewhere, or only the HGN test should be used. Student Manual, VIII- 21 (1995). The 1995 edition notes that there should be adequate lighting for the subject to have some visual frame of reference for the One Leg Stand test. Student Manual, VIII-24 (1995). 6

10 Walk-and Turn test. 23 Note that until the 2013 version, this comment was not mentioned in relation to the One-Leg Stand test conditions. 24 The 2013 edition added a qualification for the testing conditions that essentially undermines the bases for creating standardized tests. The manual notes, Standardizing this test for every type of road condition is unrealistic. The original research recommended that this test be performed on a dry, hard, level, non-slippery surface in relatively safe conditions. If not, the research recommends: Subject be asked to perform the test elsewhere, or Only HGN be administered However, recent field validation studies have indicated that varying environmental conditions have not affected a subject s ability to perform this test. 25 The significance of this change is that a field sobriety test not administered in accordance with the original research makes the test non-standardized (not the same test or given under the same conditions) and therefore subject to a lack of relevancy argument. 26 It is the opinion of this author that the need to comply with the evidentiary rules of relevance is the primary, if not the only, reason the original studies required strict compliance with the testing procedures. Prior to the 2013 Guide, an affirmative 23 Participant Guide, Session 8, Page 41 (2013); Student Manual, VIII-11 (2006). This comment was not included in previous editions. 24 Participant Guide, Session 8, Page 49 (2013). This comment was not included for the One-Leg Stand test in previous editions. 25 Participant Guide, Session 8, Page 49 (2013)(emphasis added). See also Participant Guide, Session 8, Page 41 (2013)(indicating recent validation studies have indicated that varying environmental conditions have not affected a subject s ability to perform the Walk and Turn test). 26 For a more detailed discussion of relevancy, see section IV, Non-Standardized Field Sobriety Tests. 7

11 statement requiring strict compliance was included to validate the conclusions of the field sobriety testing Suspect s Physical Limitations In addition to the environmental conditions, a suspect s own physical impairments or limitations may affect one s ability to perform the tests. The Student Manual outlines certain conditions that may limit a subject s ability to perform the tests. For instance, the original research indicated that individuals with back 28, leg or inner ear problems 29 had difficulty performing the Walk-and-Turn and One-Leg Stand tests. 30 Versions of the manual published prior to 1995 indicated that, based upon the original research, these tests were also not necessarily valid for subjects 60 years of age or older. 31 Although this statement referred to the original research, this age was disturbingly and inexplicably increased to 65 years of age or older beginning with the 1995 version of the manual. Of even greater concern is the qualification in the 2013 version that Less than 1.5% of the test subjects in the original studies were over 65 years of age. 32 The original research further recognized that one s footwear could affect test performance. Accordingly, individuals wearing heels more than two inches high should be given the opportunity to remove their shoes prior to both the Walk-and-Turn 27 For a more detailed discussion of strict compliance, see Section I (C), Validation of the Tests. 28 Editions published in 1995 and earlier do not include back problems as a factor affecting the subject s ability to perform the One-Leg Stand test. See e.g., Student Manual, VIII-25 (1995). 29 Editions published in 1995 and earlier referred to inner ear disorders rather than inner ear problems. See e.g., Student Manual, VIII-21 and 25 (1995). 30 Participant Guide, Session 8, Pages 41 and 49 (2013); Student Manual, VIII-11 (2006). The 1995 edition of the Student Manual notes that some people have difficulty with balance even when sober; this statement was not included in the 2000 and subsequent editions. 31 Student Manual, VIII-18 and 21 (1992). 32 Participant Guide, Session 8, Pages 41 and 49 (2013). 8

12 and One-Leg Stand tests. 33 Suspects with other types of unusual footwear, such as flip flops or platform shoes, should also be given the opportunity to remove that footwear prior the administration of these tests. 34 A weight limitation has also been placed on suspects who perform the One-Leg Stand test but interestingly, not the Walk-and-Turn test. The manual states that a person who is overweight by 50 or more pounds may have difficulty performing the One-Leg Stand test. 35 Lack of visual acuity was also originally identified as a limitation in test performance. All editions prior to 2000 noted that individuals who cannot see out of one eye may have difficulty with the Walk-and-Turn test because of poor depth perception. 36 C. Validation of the Tests Above all, the original researchers found it necessary to emphasize one final and major point from the first publication of this manual until the 2013 edition. 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. 33 Participant Guide, Session 8, Pages 41 and 49 (2013); Student Manual, VIII-11 and 14 (2006). 34 Instructor Guide, 8-67, 8-82, 8-100, and (2013). 35 Participant Guide, Session 8, Page 49 (2013). 36 See e.g., Student Manual, VIII-21 (1995). 9

13 IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED. 37 Although the above language has been deleted from the 2013 manual, this manual states in the Processing the Arrested Subject and Preparation for Trial section that, One way you can refute defense challenges is by administering the Standardized Field Sobriety Tests as you were trained. If deviations to the protocol occur, it is important to explain why. Standardization ensures both consistency and credibility. 38 The Instructor s Manual also cautions that during training, the SFSTs must be administered each time exactly as outlined in the course. 39 This manual also states that while the SFSTs should be administered under the ideal conditions described in the manual, such conditions will not always exist. Even when administered under less than ideal conditions, they [the SFSTs] will serve as useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid Student Manual, VIII-19 (2006) (emphasis in original). 38 Participant Guide, Session 12, Page 23 (2013). 39 U.S. Department of Transportation, National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing, Instructor Guide, p. 7 (2013) (hereinafter Instructor Manual ). Editions published before 2002 also indicated that the SFSTs are not at all flexible. 40 Instructor Guide, Preface (2013). 10

14 II. DETECTION PHASES OF DUI Officers are trained to observe three phases of DUI detection: 1) Vehicle in Motion; 2) Personal Contact; and 3) Pre-arrest Screening. 41 The standardized field sobriety tests are administered in the third phase. A. Phase One: Vehicle in Motion In Phase One, the officer is instructed to observe the vehicle, note any possible cues that indicate a DWI violation, and determine whether or not to stop the vehicle. 42 NHTSA has identified the following twenty-four (24) cues divided into four categories, which the organization associates with a high probability that the suspect is impaired; Problems Maintaining Proper Lane Position 44 a. Weaving; 45 b. Weaving across lane lines; Participant Guide, Session 4, Page 3 (2013); Student Manual, IV-2 (2006). 42 The 2013 edition adds information not included in earlier versions: Alternatives to stopping the vehicle include: Delaying the stop/no stop decision, in order to continue observing the vehicle [or] Disregarding the vehicle. The 2013 edition also includes additional warnings to the officer to stay alert to the risk that someone impaired by alcohol or drugs may respond in unexpected and dangerous ways to the stop command. Participant Guide, Session 5, Page 3 (2013). 43 Participant Guide, Session 5, Page 5 Page 9 (2013); Student Manual, V-3-7 (2006). Manuals published before 2004 listed only 20 visual cues for nighttime detection of impaired drivers, which were based on a detailed analysis of more than 1,000 DUI arrest reports and a field study of more than 600 patrol stops. See, e.g. Student Manual, V-4 (2002). The 2004 and subsequent editions, however, state that the list of 24 cues is based upon three field studies, which involved more than 12,000 enforcement stops. The 2004 and 2006 editions also claim that the list was developed from a list of more than 100 driving cues that have been found to predict BAC of 0.08 percent or greater. Student Manual, V-3 (2006). Interestingly, the 2013 edition refers to the 100 driving cues as each providing a high probability indication that the driver is under the influence. Participant Guide, Session 5, Page 5 (2013). All editions prior to 2013 also provided definitions and examples of each driving cue, all of which were omitted in No edition offers any citation to these field studies. 44 Participant Guide, Session 5, Page 7 (2013); Student Manual, V-4 (2006). The manual indicates that cues in this category represent a 50% - 75% probability that the driver is impaired. 45 The 2013 edition simply lists the cues without any additional explanation. Earlier versions included a description of each cue, such as, Weaving occurs when the vehicle alternately moves toward one side of the roadway and then the other, creating a zigzag course. See, e.g., Student Manual, V-4 (2006). 11

15 c. Drifting; d. Straddling a lane line; 47 e. Swerving; f. Almost striking a stationary object or another moving vehicle; and g. Turning with a wide radius. 2. Speed and Braking Problems 48 a. Stopping problems (too far, too short, too jerky); 49 b. Unnecessary acceleration or deceleration; 50 c. Varying speed; 51 and d. Driving slower than ten (10) m.p.h. below the speed limit. 3. Vigilance Problems 52 a. Driving with headlights off when they would otherwise be required; b. Failure to signal or signaling inconsistent with driving actions; 46 This cue was not included in editions of the manual published before The 2004 edition also eliminated the cue of driving with tires consistently on the center line or lane marker. See, e.g., Student Manual, V-6 (2002). The 2004 and 2006 edition explained that this cue meant Extreme cases of weaving. See, e.g. Student Manual, V-4 (2006). 47 Editions published before 2004 identified this cue as Straddling center or lane marker. See, e.g., Student Manual, V-5 (2002). 48 Participant Guide, Session 5, Page 8 (2013); Student Manual, V-5 (2006). The manual indicates that cues in this category represent a 45% - 70% probability that the driver is impaired. 49 Participant Guide, Session 5, Page 8 (2013); Student Manual, V-5 (2006). This cue was not included in editions published before However, it may encompass the previous cue of Braking Erratically. See, e.g., Student Manual, V-6 (2002). 50 Participant Guide, Session 5, Page 8 (2013). Previous editions called this cue, Accelerating or decelerating rapidly. See, e.g., Student Manual, V-5 (2006). 51 Participant Guide, Session 5, Page 8 (2013). The 2006 edition described this cue as alternating between speeding up and slowing down. Student Manual, V-5 (2006). This cue was not included in editions published before Participant Guide, Session 5, Page 8 (2013); Student Manual, V-5-6 (2006). The manual indicates that cues in this category represent a 55% - 65% probability that the driver is impaired. 12

16 c. Driving into opposing or crossing traffic (i.e. backing into traffic, failing to yield the right-of-way, or driving the wrong way on a one-way street); d. Slowly responding to traffic signals; e. Slow or failure to respond to an officer s signals; 53 and f. Stopping in the traffic lane for no apparent reason. 4. Judgment Problems 54 a. Following another vehicle too closely; 55 b. Improper or unsafe lane change; 56 c. Illegal or improper turn; d. Driving on other than the designated roadway; e. Stopping inappropriately in response to an officer; 57 f. Inappropriate or unusual behavior (i.e. throwing objects, arguing, etc.); 58 and g. Appearing to be impaired Participant Guide, Session 5, Page 8 (2013). The 2006 manual explained that the officer s signals included lights, siren or hand signals. Student Manual, V-5 (2006). This cue was not included in editions published before Participant Guide, Session 5, Page 9 (2013); Student Manual, V-6-7 (2006). The manual indicates that cues in this category represent a 35% - 90% probability that the driver is impaired. 55 The 2013 edition adds the parenthetical, (tailgating) as part of this cue. Participant Guide, Session 5, Page 9 (2013). 56 Participant Guide, Session 5, Page 9 (2013). Earlier editions described this cue as frequently or abruptly changing lanes without regard to other motorists. Student Manual, V-6 (2006). This cue was not included in editions of manual published before Participant Guide, Session 5, Page 9 (2013). Earlier editions gave examples of this cue, such as stopping at a crosswalk, in a prohibited zone, for a green traffic signal, or in an illegal or dangerous manner. Student Manual, V-6 (2006). This cue was revised in the 2004 edition of the manual. For instance, previous editions did not indicate that this cue appeared in response to an officer. See, e.g., Student Manual, V-7 (2002). 58 Participant Guide, Session 5, Page 9 (2013). Earlier editions included additional examples of this behavior, such as drinking in vehicle and urinating at roadside. Student Manual, V-6 (2006). This cue was not included in editions of manual published before Earlier editions included a list of examples of specific indicators of this cue, including eye fixation, 13

17 After determining whether to stop the suspect, the officer is to observe the manner in which the suspect responds, again noting any indications of impairment. 60 Cues that officers are trained to note include: an attempt to flee; no or slow response; an abrupt swerve; sudden stop; and striking the curb or another object. 61 NHTSA has also identified the following ten (10) post-stop cues which the organization associates with a probability of 85% or greater that the driver is impaired: Difficulty with motor vehicle controls; 2. Fumbling with driver s license or registration; 3. Difficulty exiting the vehicle; 4. Repeating questions or comments; 5. Swaying, unsteady, or balance problems; 6. Leaning on the vehicle or other object; 7. Slurred speech; 8. Slow to respond to officer or the officer must repeat; 9. Provides incorrect information or changes answers; and 10. Odor of alcoholic beverage from the driver. Officers are also taught that driving itself is a complex task that divides the attention of a suspect. 63 Accordingly, an impaired driver should exhibit problems with the basic subtasks involved in driving a motor vehicle, such as: steering, tightly gripping the steering wheel, slouching in the seat, gesturing erratically or obscenely, face close to the windshield, or driver s head protruding from the vehicle. Student Manual, V-7 (2006). 60 Participant Guide, Session 5, Page 18 (2013); Student Manual, V-10 (2006). 61 Participant Guide, Session 5, Page 17 (2013); Student Manual, V-10 (2006). 62 Participant Guide, Session 5, Page 10 (2013); Student Manual, V-7 (2006). These cues were not included in editions published before Participant Guide, Session 5, Pages (2013); Student Manual, V-8 (2006). 14

18 controlling the accelerator and brake, signaling, operating the clutch and gearshift, observing and reacting to other traffic, etc. 64 Officers should recognize and record mistakes drivers make in executing these subtasks as evidence of impairment. When an officer gives the stop command, the actions the driver must take become more complex and he or she may exhibit more signs of impairment (i.e. attempt to flee, no response, slow response, abrupt swerve, etc.). 65 B. Phase Two: Personal Contact 66 Phase Two instructs the officer to approach, observe and interview the driver while she is still in the vehicle. During this time, the officer should use his senses of sight, hearing and smell when looking for evidence of impairment. For instance, the following sight cues may evidence impairment: bloodshot eyes, soiled clothes, fumbling fingers, alcohol containers, drugs or drug paraphernalia, bruises, bumps, or scratches, or unusual actions. Officers are also taught to listen for cues such as slurred speech, admission of drinking, inconsistent responses, abusive language, and unusual statements. Finally, an officer may smell cues that indicate impairment, such as alcoholic beverages, marijuana, cover up odors like breath spray, or other unusual odors. In addition to gathering evidence of impairment through the use of the senses, officers are also taught to employ certain interview techniques while the driver is still in the vehicle. An officer may use divided attention tasks during the interview by asking the driver for two things at once, asking interrupting or distracting questions, and 64 Participant Guide, Session 5, Pages (2013). Earlier editions used the term subtasks, which the 2013 edition does not specifically use, and added the explanation that many of the subtasks in driving occur simultaneously. Student Manual, V-8 (2006). 65 Participant Guide, Session 5, Page 17 (2013); Student Manual, V-10 (2006). 66 Participant Guide, Session 6, Pages 1-14 (2013); Student Manual, VI-1 to 6 (2006). 15

19 asking the driver unusual questions. A driver s response to these types of questions may indicate impairment. According to the manual, such questions that would normally be easy for the driver to answer might prove difficult if the driver is impaired. The personal contact phase also teaches the officer to administer non-standardized tests, such as the alphabet test, count down test and the finger count, while the driver is still in the vehicle. The manual cautions, however, that THESE TECHNIQUES DO NOT REPLACE THE SFSTs. 67 Based on the evidence observed while the driver is still in the vehicle, the officer must next determine whether or not to ask the driver to step from the car. If the officer instructs the driver to exit the vehicle, he should observe the actions and behavior of the driver as she exits. Officers are instructed to note if the driver shows angry or unusual reactions; cannot follow instructions; cannot open the door; leaves the vehicle in gear; leans against the vehicle; climbs out of the vehicle; or keeps her hand on the vehicle for balance. C. Phase Three: Pre-arrest Screening (The Standardized Field Sobriety Tests) 68 The third and final phase requires the officer to administer psychophysical tests, also known as the Standardized Field Sobriety Tests, to assess the suspect s mental and physical impairment. The tests focus on balance, coordination and information processing. They are discussed in detail below. Finally, officers are taught to administer a preliminary breath test to corroborate the association of alcohol with the observed 67 Participant Guide, Session 6, Page 9 (2013); Student Manual, VI-4 (2006) (emphasis in original). 68 Participant Guide, Session 7, Pages 1-26 (2013); Student Manual, VII-1-10 (2006). 16

20 evidence of the suspect s impairment. 69 At the conclusion of all three stages of investigation, if the collective evidence establishes probable cause that the suspect is driving under the influence, the officer should then place the suspect under arrest. III. ADMINISTRATION OF FIELD SOBRIETY TESTS A. The Horizontal Gaze Nystagmus Test 70 To properly administer this test, the officer must review three factors or clues while observing each eye. They are: 1. The subject s ability to follow a slowly-moving object smoothly with the eyes; 2. Whether there is distinct and sustained nystagmus in either of the subject s eyes when moved as far as possible to the side (maximum deviation); and 3. The angle of onset of nystagmus in each of the subject s eyes; i.e., did the nystagmus commence before the eye moved 45 degrees to the side. 71 Nystagmus occurring at an angle less than forty-five degrees is an indication the person has a blood alcohol level of 0.08% or more when used in conjunction with the other field sobriety tests. 72 The forty-five degree angle is determined separately for each eye, assuming the angle is zero degrees when looking straight ahead, and ninety degrees when looking directly to the side, if that were possible. 69 Participant Guide, Session 7, Pages (2013); Student Manual, VII-7 (2006). 70 See Troy McKinney, Challenging and Excluding HGN Tests, The Champion, April 2002, at 50, for additional information on Horizontal Gaze Nystagmus procedures. 71 Participant Guide, Session 8, Page 19 (2013); Student Manual, VIII-5 (2006). 72 All editions prior to 2013 stated that the three Standardized Field Sobriety Tests were used to determine a blood alcohol level of above 0.10% instead of 0.08%, although some earlier editions did state that onset of nystagmus prior to 45 degrees made it evident that a person had a BAC above 0.08%. See, e.g., Student Manual, VIII-5 (2006). The 2013 edition is the first to claim that recent research validated the Standardized Field Sobriety Tests for blood alcohol levels at or above 0.08%. 17

21 When selecting a location for this test, the officer should face the subject away from rotating lights, strobe lights, and traffic in close proximity, as visual and other distractions may compromise the subject s performance on this test. 73 Before checking the eyes for clues, the officer should first check the subject s eyes for indications of possible medical disorders or injury. To assess possible medical impairment, the officer should examine the eyes for equal pupil size, resting nystagmus and equal tracking. 74 If the examination indicates that the pupils are distinctly different in size (Equal Pupil Size), the eyes jerk as the subject looks straight ahead (Resting Nystagmus), or that the two eyes do not track together (Equal Tracking), a serious medical condition or injury may be present. 75 The administrative procedures for the Horizontal Gaze Nystagmus test include ten (10) systematic steps. 76 Step 1: Check for Eyeglasses The officer should begin by instructing the subject to remove eyeglasses, if worn. 77 The glasses are removed in order to allow the officer an unobstructed examination of the eyes. Nystagmus is not influenced by how clearly the subject can see the object he is to follow. However, subjects with high refractive errors could have 73 Participant Guide, Session 8, Page 56 (2013). Editions published between 2000 and 2013 noted that rotating lights, strobe lights, and traffic in close proximity may interfere with a subject s performance on the HGN test. See, e.g., Student Manual, VIII-15 (2006). Like the 2013 revision, the 1995 and 2000 editions of the Student Manual noted only flashing or strobe lights; they did not refer to rotating lights or traffic passing in close proximity. 74 Participant Guide, Session 8, Page 17 (2013). 75 Participant Guide, Session 8, Page 17 (2013). 76 Participant Guide, Session 8, Page 21 (2013). The 2013 Participant Guide was the first to outline the administrative procedures in 10 distinct steps. 77 Participant Guide, Session 8, Page 21 (2013); Student Manual, VIII-6 (2006). The 1995 edition of the Student Manual directed officers to make note of whether the suspect wears contact lenses; this statement was not included in subsequent editions. Student Manual, VIII-15 (1995). 18

22 trouble seeing the test target without corrective lenses. Step 2: Verbal Instructions The officer should further advise the subject to put his feet together, hands at his sides. The subject must keep his head still, look at the stimulus and follow its movement with his eyes. The officer should caution the subject to keep looking at the stimulus until he is told the test is over. 78 Step 3: Position the Stimulus The officer should position the stimulus, often a pen or other contrasting object, inches in front of the subject s nose and slightly above eye level. Step 4: Equal Pupil Size and Resting Nystagmus The officer should next check for both equal pupil size and resting nystagmus and note the presence of either condition.. 79 Step 5: Equal Tracking The officer should check for equal tracking by moving the stimulus rapidly from the center to the far right, to the far left and back to center. 80 Step 6: Lack of Smooth Pursuit The subject s left eye is next examined by moving the stimulus smoothly to the right as far as the subject s eye can go, then move the stimulus smoothly all the way across the subject s fact to the left side and back to center. The movement is made in approximately two seconds from center to the side, during which time the officer must 78 Participant Guide, Session 8, Page 22 (2013); Student Manual, VIII-6 (2006). 79 Participant Guide, Session 8, Page 22 (2013). The indication that Resting Nystagmus may be observed was added to editions published after Further, the 2013 edition is the first to direct the officer to note whether the subject displays resting nystagmus. 80 Participant Guide, Session 8, Page 23 (2013). 19

23 observe whether the subject is able to follow the object smoothly, as opposed to a jerky type movement. Both eyes should be examined for smooth pursuit by making at least two complete passes in front of the eyes. 81 Step 7: Distinct and Sustained Nystagmus The subject s left eye should next be examined by moving the object from zero degrees (looking straight ahead) to as far to the side as possible. The left eye should be held at that position for a minimum of four seconds to determine if the nystagmus is distinct and sustained 82 at maximum deviation. 83 The procedure should then be repeated for the right eye. Both eyes should be examined for distinct and sustained nystagmus at maximum deviation by making at least two complete passes in front of the eyes. Step 8: Onset of Nystagmus Prior to 45 Degrees Next, the object is moved in front of the subject s left eye to the forty-five degree angle of gaze, over a period of four seconds. 84 The angle of nystagmus onset should be noted. True nystagmus will continue when the movement of the object is stopped. If the nystagmus is noted at an angle less than forty-five degrees, the officer must further verify that some white of the eye (the sclera) is still showing on the side 81 Participant Guide, Session 8, Page 28 (2013); Student Manual, VIII-7 (2006). Note that in the 2013 edition, the following new language is added after the instruction to repeat the process: If you are still not able to determine whether or not the eye is jerking as it moves, additional passes may be made in front of the eyes. Participant Guide, Session 8, Page 28 (2013). 82 The 1995 and 2000 editions of the Student Manual note only that the nystagmus be distinct; they do not note the requirement that nystagmus must be both distinct and sustained for this clue to be present (emphasis in 2004 and 2006 editions only). 83 Participant Guide, Session 8, Pages (2013); Student Manual, VIII-7 (2006). 84 Participant Guide, Session 8, Pages (2013); Student Manual, VIII-7 (2006). The 2013 edition adds a new indicator that may be used to determine a 45 degree angle: If you start with the stimulus approximately inches (30 38 cm) in front of the subject, when you reach 45 degrees the stimulus will usually be lined up with, or slightly beyond, the edge of the subject s shoulder. Participant Guide, Session 8, Page 33 (2013). 20

24 closest to the ear. 85 The forty-five degree onset angle of nystagmus is only relevant if the officer can see some white at the outside of the eye. The entire procedure is then repeated for the right eye. As with the other clues, both eyes should be examined for nystagmus at 45 degrees by making at least two complete passes in front of the eyes. Step 9: Total the Clues At the conclusion of the test, the officer should evaluate the subject s performance by noting how many of the six possible clues were noted. There are three possible clues for each eye. One clue is noted if the onset of the nystagmus occurs prior to forty-five degrees, assuming a portion of the white part of the eye closest to the ear is still visible at the point of onset. An additional clue may be noted if distinct and sustained nystagmus is observed when the eye is moved as far laterally as possible. No clue is to be assessed if the officer observes only the faint jerking that occurs at the onset point. 86 A third clue is assessed if the eye cannot follow a moving object smoothly. 87 However, officers are cautioned to move the stimulus smoothly so that this clue will not be noted if the jerkiness was due to the manner in which the object was moved. 88 Step 10: Check for Vertical Nystagmus Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down), which occurs as the eyes are held at maximum elevation. For VGN to be 85 Earlier editions included the explanation, If the white of the eye is not showing, the forty-five degree angle is incorrect, or the subject has unusual eyes, which will not deviate far to the side. See, e.g., Student Manual, VIII-7 (2006). 86 The 2013 edition includes a new explanation: If you think you see only slight nystagmus at this stage of the test, or if you have to convince yourself that nystagmus is present, then it isn t really there. Participant Guide, Session 8, Page 31 (2013). 87 Participant Guide, Session 8, Page 26 (2013); Student Manual, VIII-8 (2006). 88 Participant Guide, Session 8, Page 28 (2013); Student Manual, VIII-7 (2006). 21

25 recorded, it must be distinct and sustained for a minimum of four seconds at maximum elevation. 89 A confirmation pass both up and down should also be completed. Proper administration of the Horizontal Gaze Nystagmus Test pursuant to the 2013 edition warrants a total of at least 18 passes of the stimulus and should take approximately 88 seconds if performed correctly. 90 One pass can be defined as the movement of the object from zero degrees (looking straight ahead) to the side (right or left) and back to the center at zero degrees. One pass for the Vertical Gaze Nystagmus Test is considered moving the stimulus up (up only, not below zero degrees down) to elevate the eyes as far as they can go, then back to zero degrees (straight ahead). Each clue must be confirmed (check it twice) for both the HGN 91 and VGN 92 tests. A subject who is found to have four or more clues out of the possible six may be classified as having a blood alcohol level at or above 0.08% with approximately 88% accuracy. 93 Obviously then, some persons who are not under the influence may exhibit nystagmus. The manual notes that nystagmus may also be caused by certain pathological disorders such as brain tumors, brain damage and some diseases of the inner ear. 94 Courts have recognized, however, that many other non-alcohol related causes of 89 Participant Guide, Session 8, Page 15 (2013). 90 See, e.g., Troy McKinney, Challenging and Excluding HGN Tests, The Champion, Apr. 2002, at 50, for additional information on Horizontal Gaze Nystagmus procedures. 91 Instructor Manual, 8-40 (2013); Participant Guide, Session 10, Page 4 (2013); Participant Guide, Session 15, Page 3 (2013). 92 Instructor Manual, 8-65 (2013); Participant Guide, Session 10, Page 4 (2013). 93 Participant Guide, Session 8, Page 37 (2013). Earlier editions stated the HGN could be used to accurately classify 77% of subjects with a blood alcohol level above 0.10%. See, e.g., Student Manual, VIII-8 (2006). 94 Participant Guide, Session 8, Page 16 (2013); Student Manual, VIII-4 (2006); see also Schultz v. State, 664 A. 2d. 60, 77(Md. App. 1995)(citations omitted)(recognizing 38 non-alcohol related causes of horizontal gaze nystagmus); U.S. v. Horn, 185 F. Supp. 2d 530 (Maryland District Ct. 2002)(holding if officer testified that defendant exhibited nystagmus, defendant could explain the many causes of nystagmus other than alcohol ingestion and that FSTs were admissible on issue of whether there was probable cause 22

26 nystagmus exist including excessive amounts of caffeine, aspirin, glaucoma, hypertension, and influenza 95 Moreover, significant questions about the efficacy of the HGN test as described in the manual have been raised by defense experts. For example, in the trial court opinion of State v. Brightful (attached hereto as an Appendix), the defense ophthalmologist testified, that you really need two things to interpret nystagmus. You need a properly performed test and you need to understand nystagmus and be able to ask these other 11 questions to be able to determine where that nystagmus came from. 96 Perhaps that is why some states, including Tennessee, ruled that, unlike other field sobriety tests, the HGN test is scientific in nature, requiring such evidence to be introduced by an expert witness in order to comply with the rules of evidence. 97 The other two field sobriety tests are not nearly as complicated to describe, but there are many details that must be followed in order to obtain an accurate assessment. Rather than enumerate each of the details, these procedures will simply be summarized. B. The Walk-and-Turn Test In this test, the subject assumes a heel-to-toe stance with the subject s arms down at her sides. The instructions for this stance are for the subject to place her left foot on the line (real or imaginary) and to place the right foot on the line head of for arrest, but not for proving specific blood alcohol content). 95 See e.g., Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995) (Citing 38 non-alcohol related causes of HGN); United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002)(HGN is circumstantial, not direct evidence of alcohol consumption). 96 State v. Brightful, Memorandum Opinion and Order, K , p (Carroll Co., Md. Cir. Ct. Mar. 5, 2012) (outlining 11 questions an examiner must ask before properly diagnosing the presence of nystagmus in DRE case). 97 See, e.g., State v. Murphy, 953 S.W.2d 200 (Tenn. 1997) 23

27 the left foot, with the heel of the right foot against the toe of the left foot. 98 The subject is to maintain this position until the instructions are completed. The officer must verify that the subject understands the instructions and if she breaks away from the stance, the officer must cease giving instructions until the stance is resumed. The officer must then explain that the subject is required to take 9 heel-to toe-steps on the line, to turn, and to take 9 heel-to-toe steps down the line. 99 It is important that the officer correctly instruct the subject on the specific method of turning to keep the front (lead) foot on the line, and turn by taking a series of small steps with the other foot. 100 While walking, the subject is to keep her arms at her side, watch her feet at all times, count her steps out loud and continue walking until the test is completed. 101 The officer must demonstrate the walking stage of this test while verbally giving the instructions. 102 Finally, the officer must verify that the subject understands the test and, if not, reexplain. Once the test begins, the officer is to look for one or more of eight specific clues (mistakes) while the subject performs the test. These clues include: (1) Failure to maintain balance while listening to the instructions; (2) Starting too soon; 103 (3) Stopping 98 Participant Guide, Session 8, page 42 (2103). 99 In the 1995 edition of the Student Manual, the officer is told to instruct the subject to Place your left foot on the line. Student Manual, VIII-18 (1995). In the 2000 and subsequent editions, however, the officer s instructions to the subject are as follows: Place your left foot on the line (real or imaginary). Participant Guide, Session 8, Page 42 (2013); Student Manual, VIII-9 (2006) (emphasis added). 100 Participant Guide, Session 8, page 43 (2013). 101 Earlier editions specified that the subject should count the first step from the heel-to-toe position as One. See, e.g., Student Manual, VIII-9 (2006). 102 Participant Guide, Session 8, page 43 (2013). The Participant Guide does not specify how much of the test to demonstrate; however, the Instructor Guide indicates that the officer should demonstrate a minimum of three heel-to-toe steps as well as the turn. Instructor Guide, 8-70 (2013). 103 Earlier editions listed this clue as starting before the instructions are finished. See, e.g., Student Manual, VIII-10 (2006). 24

28 while walking; 104 (4) Failure to touch heel-to-toe; (5) Stepping off the line; (6) Using arms to balance; (7) Improper turn; 105 and (8) Taking an incorrect number of steps. 106 The subject is to be observed from a safe distance and the officer is to limit movement while the subject performs the test so as not to distract the subject during the test. 107 The manual states that if the subject exhibits two or more clues, the officer may classify the subject s blood alcohol content as at or above.08%. This test has been determined by NHTSA to accurately indicate that a subject s blood alcohol level is at or above.08% approximately 79% of the time. 108 C. The One-Leg Stand Test The subject should first be placed in the proper stance. The officer should instruct the subject to stand with his feet together and arms down at his sides, and further instruct to not start the test until told to do so. The instructions, which are supposed to be given to the subject (with accompanying demonstration), are for the subject to stand on either foot with the other foot raised approximately six inches off the ground. 109 Both of 104 The 1995 edition of the Student Manual indicated that a clue was exhibited when a subject stops to steady self; this language was deleted from the 2000 and subsequent editions. Student Manual, VIII-20 (1995). 105 The 2013 edition adds that the improper turn clue may be counted if the subject loses balance while turning. Participant Guide, Session 8, Page 45 (2013). Earlier editions did not include this as part of the improper turn clue. 106 Participant Guide, Session 8, Pages (2013); Student Manual, VIII (2006). 107 Participant Guide, Session 8, Page 46 (2013). The 1995 edition of the Student Manual states that the subject is to be observed from three or four feet away and the officer is to remain motionless while the subject performs the test. Unlike the 2000 and subsequent editions, the 1995 edition also notes that the failure of the officer to follow these instructions makes it more difficult for the subject to perform the test. Student Manual, VIII-21 (1995); VIII-11 (2006). 108 Earlier editions stated the test could be used to accurately classify 68% of subjects with a blood alcohol level above 0.10%. See, e.g., Student Manual, VIII-11 (2006). Additionally, in earlier editions, NHTSA also found it is possible to combine the results of the Nystagmus test and Walk-and-Turn test in a decision matrix, and achieve 80% accuracy. See, e.g., Student Manual, VIII-11 (2006). The 2013 edition no longer includes information about combining the results of tests. 109 Participant Guide, Session 8, Page 50 (2013). Editions published before 2013 included an instruction that the subject s foot should be pointed forward so the foot is approximately parallel to the ground. The 25

29 the subject s legs are to remain straight for the duration of the test. 110 While standing, the subject is to count out loud (one thousand one, one thousand two, and so on), and the subject is to keep his arms at his sides at all times and watch the raised foot. 111 After demonstrating the test for several sections, the officer should verify that the subject understands the test and re-explain if necessary. The officer is to observe the subject from a safe distance and to minimize movement during the test so as not to interfere. 112 The officer is to observe the subject again for one or more of four possible clues. These clues include: (a) Swaying while balancing; 113 (b) Using arms to balance (raising them six inches or more from side); (c) Hopping; and (d) Putting foot down too soon. 114 Should the officer observe two or more of these four clues, the officer may classify the subject s blood alcohol level as at or above.08% with 83% accuracy edition of the Student Manual stated that the subject s toes are to be pointed forward, rather than the subject s foot. Student Manual, VIII-23 (1995); see Student Manual, VIII-12 (2006). The 2013 edition only instructs the subject to hold either foot 6 inches off the ground, with no additional information about how to position the foot. 110 Participant Guide, Session 8, Page 50 (2013); Student Manual, VIII-12 (2006). 111 Participant Guide, Session 8, Pages (2013). Editions prior to 2013 instructed the subject to count one thousand and one, one thousand and two Student Manual, VIII-12 (2006) (emphasis added). Additionally, the 1995 edition of the Student Manual notes that the subject is to count out loud for thirty seconds. Student Manual, VIII-23 (1995)(emphasis added). 112 Participant Guide, Session 8, Page 53 (2013). Editions published before 2013 instructed the officer to remain as motionless as possible instead of to minimize movement. See, e.g., Student Manual, VIII-13 (2006). Additionally, the 1995 edition of the Student Manual states that the officer is to observe the subject from at least three feet away. Student Manual, VIII-23 (1995). 113 The 2013 edition adds the explanation, Slight tremors of the foot or body should not be interpreted as swaying. Participant Guide, Session 8, Page 51 (2013). 114 Participant Guide, Session 8, Pages (2013); Student Manual, VIII-13 (2006). 115 Participant Guide, Session 8, Page 53 (2013). Earlier editions stated the test could be used to accurately classify 65% of subjects with a blood alcohol level above 0.10%. See, e.g., Student Manual, VIII-13 (2006). 26

30 IV. NON-STANDARDIZED FIELD SOBRIETY TESTS When the U.S. Department of Transportation, National Highway Traffic Safety Administration, was evaluating tests in the 1970s to determine which field sobriety tests were the most accurate in indicating intoxication, they ultimately ruled out several tests used by various law enforcement agencies. The exclusion of these tests was presumably due to their inaccuracy and unreliability in predicting intoxication or blood alcohol levels. In fact, the NHTSA Field Sobriety Test Student Manual, in addressing non-standardized tests and techniques, states that [t]hese techniques are not as reliable as the standardized field sobriety tests but they can still be useful for obtaining evidence of impairment. THESE TECHNIQUES DO NOT REPLACE THE SFST[s]. 116 However, many of these tests are still used today by law enforcement agencies around the country. Because these tests are not standardized and have no set administrative procedures or clues, and because no studies have ever demonstrated these tests to be reliable indicators of either impairment or of blood alcohol levels in excess of.08%, defense attorneys would be wise to argue that such tests are inadmissible pursuant to Federal Rule of Evidence 401 or its state counterpart. Rule 401 states that [r]elevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 117 These non-standardized tests, by definition, have no tendency to make the detection of blood alcohol levels at or above.08% more or less 116 Participant Guide, Session 6, Page 9 (2013); Student Manual, VI-4 (2006)(emphasis in original). 117 Fed. R. Evid

31 probable, nor do they have the tendency to make detection the defendant s impairment more or less probable, and should therefore be inadmissible as irrelevant evidence. 118 Even though defense attorneys can still make a successful argument that such tests should not be admitted as evidence or that they should be given less credibility due to the fact that they are non-standardized, it is nonetheless important for the defense practitioner to be familiar with these non-standardized tests so that they can be properly challenged in court. A. The Finger to Nose Test This is perhaps the most widely used non-standardized test. In this test, the subject is asked to stand with her feet together, arms to the side, and head back; sometimes the subject is also told to close her eyes. The subject is then asked to touch the tip of the index finger to the tip of the nose, first with one hand and then with the other hand. The Finger to Nose test has been included in the Drug Evaluation and Recognition (DRE) protocol. The DRE manual outlines standardized administrative procedures to be used when administering this test, but fails to note any standardized observations (clues) or criteria for scoring. 119 Because this test is not standardized, there is neither a set number of clues nor a standard indication of what is considered a failing score. Presumably, the officer could fail the subject if she failed to touch the tip of the nose on one of ten or more attempts. Another prevalent problem with this test is the officer s occasional failure to 118 Fed. R. Evid. 401, NHTSA, Preliminary Training for Drug Evaluation and Classification Program ( The Pre-School ), Participant Manual, HS-172-R5/13, Session 3, Page 15 (2013). 28

32 instruct the subject to touch the tip of her finger to the tip of her nose, telling the subject instead to touch her finger to her nose. 120 With this instruction, the subject could touch the bridge of her nose and presume that she passed. The officer, however, would consider this performance a failure. Therefore, it is imperative that the defense attorney pays particular attention to the officer s testimony when describing the instructions given to the subject on the test. If a recording of the subject s arrest is available, you should be able to hear the exact instructions the officer gave to the subject, which could prove to be quite useful at trial. It is interesting to note that the U.S. National Park Service, which regularly uses this test, counts as a clue in this exercise swaying (see Appendix A attached hereto), as well as whether the subject opened his eyes or failed to keep his head tilted back. While the subject is not instructed that his eyes must remain closed and his head back or that he must stand perfectly still, the officer can still use these factors as clues of impairment. The National Park Service also considers asking for additional instructions, failing to keep heels together, failing to touch the fingertip to the tip of the nose, and failing to use the designated hand as further indicators of impairment. Also of interest is the fact that the International Association of Chiefs of Police (IACP) has coordinated with the National Association of State Boating Law Administrators (NASBLA) to include standardized procedures and clues for this test in the 2011 Boating Under the Influence Seated Battery Transition Training Course, Student Manual See Lawrence Taylor and Steven Oberman, Drunk Driving Defense Chapter 5 (7th ed. 2010). 121 See generally, NASLA BUI Seated Battery Transition Training Course, Student Manual, p

33 B. The Finger Count Test This non-standardized test is designed to gauge a subject s coordination. It is also sanctioned by the International Association of Chiefs of Police (IACP) in early BUI Student Manuals, but not the 2011 Manual. 122 It is also used by the U.S. National Park Service. The NHTSA Student Manual also notes this test as a useful means of obtaining evidence of impairment. 123 The NHTSA manual directs the officer to have the subject touch the tip of the thumb to the tip of each finger on the same hand while simultaneously counting up one, two, three, four; then to reverse direction on the fingers while simultaneously counting down four, three, two, one. 124 There are no standardized procedures, clues or criteria indicated for this test. C. The Hand Pat or Palm Pat Test This test has also been sanctioned by the International Association of Chiefs of Police (IACP) and included in The National Association of State Boating Law Administrators (NASBLA) standardized procedures and clues for in the 2011 Boating Under the Influence Seated Battery Transition Training Course, Student Manual. 125 In this test, the subject is required to hold one hand palm up, then pat the palm with the other hand palm down, alternating the top hand between patting palm up and palm down. The subject is instructed to count one, two as she alternates up and down, and/or is instructed to speed up as the test progresses. The officer is typically looking for (2011). 122 I.A.C.P., Improved Sobriety Testing for Boating/Alcohol Enforcement: Student Manual, 57 (1998). 123 Participant Guide, Session 6, Page 9 (2013); Student Manual, VI-6 (2006). 124 Participant Guide, Session 6, Page 12 (2013); Student Manual, VI-6 (2006). 125 See generally, NASLA BUI Seated Battery Transition Training Course, Student Manual, p (2011). 30

34 ten possible clues, including, but not limited to: (1) failing to count properly; (2) failing to increase speed; and (3) improper pat. Two or more clues suggest the individual is impaired with.08% or higher BAC. D. Coin Pickup This is a test that has lost its popularity over the years, but was used widely in the 1960s and 1970s. In this test, the officer simply drops some coins on the ground and instructs the subject to pick them up. Generally, the officer is looking for the following clues: (1) balance; (2) hand/eye coordination; and (3) dexterity. Officers can add a fourth following directions clue by instructing the subject on the order in which the coins are to be picked up. Car keys or I.D. cards may be used in place of coins. Since there are no set clues, the subject apparently fails the test if he has any difficulty retrieving the coins or if he fails to pick up the coins in the order instructed. There is no lighting or level surface area requirement for this test, so dark conditions and/or an uneven surface area could create difficulties even for a person who has not consumed an intoxicant. Physical conditions such as obesity or neurological/orthopedic problems may also make these tests inappropriate for many persons. Even the length of one s fingernails may influence the ability to satisfactorily perform this test. E. The Alphabet Test This test is designed to test one s mental agility. 126 While the IACP suggests that officers direct the subject to recite the alphabet from A to Z, officers sometimes instruct subjects to recite the alphabet backwards. To complicate matters further, the NHTSA Student Manual instructs officers who use this test to start and end 126 See Lawrence Taylor and Steven Oberman, Drunk Driving Defense Chapter 5 (7th ed. 2010). 31

35 with letters other than A and Z. 127 While most people are able to recite the alphabet without too much difficulty, reciting it backwards is nearly impossible to do without pausing once or twice to think, even for the sober individual. Again, there are no standardized procedures, clues or criteria indicated for this test. The U.S. Supreme Court decided in Pennsylvania v. Muniz 128 that an officer s question to a subject regarding the date of the subject s sixth birthday was inadmissible because it constituted testimonial evidence and therefore could not be elicited without proper Miranda advisements and a waiver. 129 The Florida Supreme Court then extended this ruling to encompass the Alphabet Recitation test, reasoning that the test was intended to elicit testimonial evidence rather than evidence of slurred speech. 130 In 1994, the Texas Court of Appeals further extended the Muniz ruling to encompass the Reverse Counting test, holding that it, too, was testimonial in nature. 131 F. Reverse Counting This test is listed as an alternative test in the NHTSA Student Manual. 132 The officer is to instruct the subject to count backwards at least 15 numbers, starting and ending with numbers of the officer s choice. Once more, no standardized procedures, clues or criteria exist to evaluate the suspect s performance on this test. Counsel should also keep in mind the Texas Court of Appeals ruling, which extended the constitutional implications raised in Pennsylvania v. Muniz 133 as discussed in subsection E. 127 Participant Guide, Session 6, Page 11 (2013); Student Manual, VI-5 (2006). 128 Pennsylvania v. Muniz, 496 U.S. 582 (1990). 129 Id. 130 Allred v. State, 622 So.2d 984 (Fla. 1993). 131 Vickers v. State, 878 S.W.2d 329 (Tex. App. 1994). 132 Participant Guide, Session 6, Page 12 (2013); Student Manual, VI-5 (2006). 133 Pennsylvania v. Muniz, 496 U.S. 582 (1990). 32

36 G. The Writing/Drawing/Tracing Tests There are a variety of different tests that require the subject to write, draw, or trace something in order to gauge the subject s level of impairment. In one such test, the subject is asked to write the alphabet and then sign his name, in order to evaluate both the correctness of the alphabet recitation as well as the neatness of the handwriting. 134 A variation of this test requires the subject to duplicate a drawing of a circle inside a square, and then is asked to sign his name to the drawing. The signature can then be compared to that on the subject s driver s license, and the failure to draw the circle completely inside of the square is allegedly evidence of impairment. NHTSA reviewed a tracing exercise when originally evaluating which tests to standardize. Although this test was not approved for use in NHTSA s final test battery, those more familiar with the decision-making process have indicated that its omission was due to the difficulty in implementation of this test rather than its accuracy. H. The Romberg Test (a.k.a. Romberg s Test) Both medical practitioners and some law enforcement officers employ this non-standardized test. This test should not be confused with the Modified Romberg Test that is used in other law enforcement agencies such as the National Park Service, and in the ARIDE (Advanced Roadside Impaired Driving Enforcement) and DRE (Drug Recognition Expert) protocols. 135 The original Romberg Test is based on the premise 134 See Lawrence Taylor and Steven Oberman, Drunk Driving Defense, Chapter 5 (7th ed. 2010). 135 A modified version of this test ( Modified Romberg Balance ) requesting the subject to not only perform the test as described above, but also to estimate 30 seconds, is used as part of the DRE protocol. The modification is designed to determine if drugs have affected the subject s internal clock. See, e.g., NHTSA, Drug Recognition Expert Course (DRE) 7-Day School, Participant Manual, HS-172-R5/13 (2013). Detailed administrative procedures can be found in the Pre-School Manual, NHTSA, Preliminary Training for Drug Evaluation and Classification Program ( The Pre-School ), Participant 33

37 that a person requires at least two of the three following senses to maintain balance while standing: proprioception (the ability to know one's body in space); vestibular function (the ability to know one's head position in space); and vision (which can be used to monitor [and adjust for] changes in body position). 136 A patient who has a problem with proprioception can still maintain balance by using vestibular function and vision. In the Romberg test, the standing patient is asked to close his or her eyes. A loss of balance is interpreted as a positive Romberg test. 137 The essential features of the test require: 1. The subject stand with feet together, eyes open and hands by the sides. 2. The subject closes the eyes while the examiner observes for 30 to 60 seconds. If the subject sways while in this position, he is considered to have exhibited a positive Romberg sign. 138 Interestingly, though, there is no mention of how far the subject must move in order for the movement to be considered a sway. National Park Service officers also consider asking for additional instructions, opening eyes, failing to keep heels together, and failing to keep the head tilted back as indicators of impairment in this test. Manual, HS-172-R5/13, Session 3, Page 2 (2013). 136 Stephen Goldberg, Clinical Neuroanatomy Made Ridiculously Simple 63 (4th ed. 2010). 137 Stephen Goldberg, Clinical Neuroanatomy Made Ridiculously Simple 63 (4th ed. 2010) Carolyn Jarvis, Physical Examination and Health Assessment 638 (6th ed. 2012). 34

38 If a person sways in this position with or without his eyes closed, which may be caused by issues such as a cerebellar defect, then he is not displaying a positive Romberg sign because the definition is quite strict and requires that a person not sway with his eyes open. 139 While alcohol consumption can yield a positive Romberg sign, several medical disorders, such as tabes dorsalis, lesions of the dorsal column of the spinal cord, multiple sclerosis, spondylosis, and diabetes mellitus can cause a positive Romberg sign as well. 140 Most importantly, even normal individuals will tend to sway when placed in the Romberg position, which makes this test extremely suspect in terms of its reliability. 141 V. PSYCHO-PHYSIOLOGICAL CONSIDERATIONS One factor that is not given enough attention, in the opinion of the author, is the role of anxiety on a person s ability to perform the field sobriety tests satisfactorily. This is not discussed in much detail in the NHTSA manuals, but is assumed to have been considered - at least to some extent - in the underlying research for the standardized tests. We may all recall from our education in biology/physiology that the human autonomic nervous system is divided into two divisions, the sympathetic and the parasympathetic. An easy way to remember the most important roles of the two autonomic nervous system divisions is to think of the sympathetic system as the stressing out division and the parasympathetic system as the chilling out division. 139 Stephen Goldberg, Clinical Neuroanatomy Made Ridiculously Simple 63 (4th ed. 2010). 140 David Anschel, Neurology: PreTest Self-Assessment and Review 23 (8th ed. 2012); Carolyn Jarvis, Physical Examination and Health Assessment 638 (6th ed. 2012). 141 David Anschel, Neurology: PreTest Self-Assessment and Review 23 (8th ed. 2012). 35

39 The sympathetic division is often referred to as the fight-or-flight system. 142 Its activity is evident when we are excited or when we find ourselves in an emergency or threatening situation. 143 When this threat or emergency is perceived by an individual, the hypothalamus stimulates the sympathetic fibers as the body prepares for fight-or-flight. 144 Within a few minutes, the hormones epinephrine and norepinephrine are released. These neurochemicals cause the anxiety to be manifested through a person s verbal responses, and they also induce clinical signs that include perspiration, tremulousness, rapid pulse and rapid breathing. 145 Equally characteristic are changes in brain wave patterns and in the electrical resistance of the skin (galvanic skin resistance), which are events that are frequently recorded during polygraph examinations. 146 When the body is activated to this fight-or-flight status by some short-term stressor or emergency, the sympathetic nervous system is mobilized, causing blood to be diverted from temporarily non-essential organs to the brain, heart, and skeletal muscles. 147 This results in the exhibition of the anxiety symptoms. After the threat or emergency has passed, the parasympathetic system kicks in. It works to decrease the heart rate, dilate the blood vessels and otherwise get the body back to normal. Although these systems evolved to help the body respond appropriately to threats, at times the sympathetic division may overreact and disproportionately flood the body with the fight-or-flight hormones, or the parasympathetic division may fail to adequately flush out the hormones at the end of the 142 See generally, Elaine N. Marieb, R.N., Ph.D., Human Anatomy and Physiology, (6 th ed. 2004). 143 See generally, Elaine N. Marieb, R.N., Ph.D., Human Anatomy and Physiology, (6 th ed. 2004). 144 Judith Haber, PhD, RN, CS, FAAN, et al., Comprehensive Psychiatric Nursing, 165 (5th ed. 1997). 145 Judith Haber, PhD, RN, CS, FAAN, et al., Comprehensive Psychiatric Nursing, 166 (5th ed. 1997). 146 See generally, Elaine N. Marieb, R.N., Ph.D., Human Anatomy and Physiology, (6 th ed. 2004). 147 See generally, Elaine N. Marieb, R.N., Ph.D., Human Anatomy and Physiology, (6 th ed. 2004). 36

40 threat or emergency. In either situation, a person s symptoms of anxiety may be strong enough or persist so long that the symptoms appear as indicators of impairment. Anxiety is a psychological response to stressors that have both physiologic and psychologic components. Anxiety results when a person perceives a threat to the self either physically or psychologically (such as to self-esteem, body image or identity). The level of anxiety engendered and its manifestations depend on the individual s maturity, understanding of need, level of self-esteem, and coping mechanisms. 148 The behavioral reactions to anxiety are influenced by psychosocial-cultural factors, basic personality development, past experiences, values, and economic status. 149 While mild anxiety may result in increased alertness, anxiety can increase to a stage where the subject suffers from recognized psychological signs of anxiety such as decreased attention span, decreased ability to follow directions, an increase in the number of questions asked, and the need to seek reassurance. 150 Those who suffer from a severe stress response may actually exhibit immobility. 151 These are the very symptoms that may cause a person who is not under the influence to perform poorly on the standardized field sobriety tests. For instance, Panic Anxiety Disorder, an easily diagnosed condition, could be discussed by counsel with each client to determine if this psychological condition may have affected the client s performance on the test(s). If your client is suspected of suffering from one of these disorders, consultation with an appropriate expert may prove to be beneficial. 148 Medical-Surgical Nursing, 116 (Wilma J. Phipps, PhD, RN, FAAN, et al. eds., 6th ed. 1999). 149 Medical-Surgical Nursing, 116 (Wilma J. Phipps, PhD, RN, FAAN, et al. eds., 6th ed. 1999). 150 Medical-Surgical Nursing, 116, 118 (Wilma J. Phipps, PhD, RN, FAAN, et al. eds., 6th ed. 1999). 151 Medical-Surgical Nursing, 118 (Wilma J. Phipps, PhD, RN, FAAN, et al. eds., 6th ed. 1999). 37

41 Those who regularly practice in the field of DUI defense are aware of officers frequent testimony that our clients were not acting normally because our client wanted to fight, couldn t understand the instructions for the field sobriety tests, wouldn t shut up, or simply wouldn t cooperate. In many instances, it is not an intoxicant that causes such behavior from the suspect; rather, it is the suspect s sympathetic nervous system response to the anxiety resulting from the stressor of the confrontation with the police and fear of going to jail. The changes in bodily functions, which provide what the body considers to be optimal physiological conditions to respond to the threat of incarceration, may be the same factors that convince the officer that the driver is chemically impaired. 152 VI. CONSIDERATIONS FOR THE COURTROOM 153 A. The Officer s Unfair Advantage Begin your cross examination by tying the officer to the manual. This is especially important in light of the changes to the 2013 edition of the manual. If the officer was trained with a manual published prior to 2013, then he was undeniably taught the importance of the standardization of the tests. 154 Although the 2013 edition still implies the importance of standardized administration of the tests, it is much less emphatic. For instance, in a section instructing the officer how to respond during cross examination of defense counsel, it states, [i]f deviations to the protocol occur, it is important to explain why. Standardization ensures both consistency and credibility See generally, Elaine N. Marieb, R.N., Ph.D., Human Anatomy and Physiology, (6 th ed. 2004). 153 For additional examples of cross-examination techniques see generally, Lawrence Taylor and Steven Oberman, Drunk Driving Defense (7th ed. 2010). 154 Student Manual, VIII-19 (2006). 155 Participant Guide, Session 12, Page 23 (2013). 38

42 Have the officer admit the importance of administering the tests in the same way each time. Ask the officer to repeat the exact instructions, given each time, for each field sobriety test. Compare the instructions given in court with those actually given to your client. If no independent evidence exists of the officer s administration of the SFSTs to your client (such as a recording of the events leading to your client s arrest), use a recording from another case where the officer deviates in the instructions and/or demonstration of the SFSTs. Compare the officer s instructions with the instructions, demonstrations, and scoring required by the manual. (See Appendix B attached hereto for a checklist that is helpful in comparing the officer s instructions with the manual). In those circumstances where the client is unable to afford the services of a field sobriety test expert to testify on their behalf, counsel should consider issuing a subpoena for the training officer of the police academy in the jurisdiction of the arresting officer along with the request to bring with him or her (duces tecum) a copy of the training manual from which the officer was taught. This information may usually be obtained from the officer s training records, which may be obtained through a Freedom of Information Act request. Once obtained and after a proper foundation is laid through the training officer, counsel may be able to introduce the NHTSA Field Sobriety Test Manual/Guide as a party admission. 156 In U.S. v. Van Griffin, the Ninth Circuit held that, [i]n this case the government department charged with the development of rules for highway safety was the relevant and competent section of the government; its pamphlet on sobriety testing was an admissible party admission See, U.S. v. Van Griffin, 874 F. 2d 634, 638 (9 th Cir. 1989). 157 See, U.S. v. Van Griffin, 874 F. 2d 634, 638 (9 th Cir. 1989). 39

43 Once the proper foundation has been laid, remind the officer of the time when he first learned the SFSTs. Have him admit that when he first performed the tests as a student/cadet, he took the tests in a classroom setting rather than on the side of the road. He did not have the concerns of adverse weather conditions, passing traffic, or inadequate lighting. Emphasize that the officer was presented with both oral and written materials before being asked to perform the tests. Most importantly, remind the officer that when he first performed these tests, he was not in fear of being arrested if he failed. Highlight the obvious problems with these SFSTs: The tests are unusual and have no direct correlation with one s ability to drive a vehicle. Passing SFSTs are not a prerequisite to obtaining a driver s license. These tests are actually designed to cause imbalance (e.g. standing on one leg rather than both). Have the officer admit that the results of the tests, like most physical activities, are affected by muscle memory. Be ready to explain (in closing argument) that the officer is much more likely to be able to demonstrate the test without exhibiting clues. The officer is demonstrating a test, which he has performed numerous times, in a familiar environment, and is at all times in control of the outcome of the situation. Your client, on the other hand, is unfamiliar with these tests and is not permitted to practice before attempting the tests. While performing the SFSTs, your client was nervous and intimidated by both the officer and the situation. Your client was forced to perform these tests in an unfamiliar 40

44 and oftentimes unsafe environment and was, above all, fearful of being arrested. Again, tie the officer to the manual. Have him admit that some persons cannot pass the SFST s even when sober. 158 B. Unfair Grading Procedures Have the officer admit that the passing criteria were never explained to your client. Note that the officer lacks baseline information that would have helped evaluate your client s performance on the SFSTs. The officer does not know the normal agility or learning ability of the suspect. For example, a much larger percentage of the general population is now being diagnosed with Attention Deficit Disorder (ADD) or Attention Deficit Hyperactivity Disorder (ADHD). These medical conditions make understanding the instructions of the SFSTs very difficult. 159 Examine the grading structure of the SFSTs with the officer. Only negative observations are recorded with no credit awarded for passed clues. (See Appendix C attached hereto for a helpful tool in demonstrating an alternative grading procedure). Suspects are not given credit for actions that indicate sobriety. These include, but are certainly not limited to: Understanding the officer s instructions; Asking appropriate questions; Responding appropriately to questions; and Providing their driver s license and other documentation appropriately. 158 See, e.g., Participant Guide, Session 8, Pages 41 and 49 (2013); Student Manual, VIII-11 (2006). The 1995 edition of the Student Manual notes that some people have difficulty with balance even when sober; this statement was not included in the 2000, 2002 and 2004 editions. 159 David S. Katz, ADHD and Driving A Recipe for False DUI Convictions, The Champion, Apr. 2013, at

45 C. The Officer on Trial The focus of your cross examination of the officer should be to show that the SFSTs are of limited value; and even more so if the validity of the SFSTs were compromised. To reach this goal, the practitioner should focus on whether: 1) the test conditions were met; 2) the tests were correctly administered; and 3) the tests were scored correctly. Also consider making the officer take on the role of suspect and have him perform the SFSTs in court. Consider videotaping the officer s performance at a preliminary or motion hearing so the officer s poor performance can later be used against him. At the very least, document clues on the record during the performance. Often, an officer s deviation from the proper instructions for these tests can make the tests appear quite complicated. Interestingly, the Student Manual also emphasizes the importance of simplicity in sobriety testing: Simplicity is the key to divided attention field sobriety testing. It is not enough to select a test that just divides the subject s attention. The test also must be one that is reasonably simple for the average person to complete as instructed when sober. Tests that are difficult for a sober subject to perform have little or no evidentiary value. 160 D. Use the Entire Manual Do not limit your cross-examination to include only the officer s administration of the SFSTs (Phase Three of DUI detection). Use the detailed training of the officer and question him on the first two phases of DUI detection as well. 160 Participant Guide, Session 7, Page 9 (2013); Student Manual, VII-4 (2006). 42

46 1. Phase One -- Vehicle in Motion During this first phase of DUI detection, officers are instructed to observe the vehicle and note any cues 161 of a possible DUI violation. If your client was stopped as a result of one of the twenty-four (24) cues used to detect nighttime impaired drivers, you should point out all other cues that your client performed correctly. Further, if the officer was trained under a NHTSA Manual published in 1995 or earlier, you can likely further use these visual cues to your advantage. The earlier editions specified the probability of impairment for each cue, with the greatest probability set at only 65%. 162 Thirteen of the twenty cues listed in the previous editions yield a probability of 50% or less. A good line of questions to ask on this issue relates to the fact that a 50% probability reflects an equal chance of the driver not being under the influence. Pin the officer down on the violation. How many times did your client exhibit this cue? How long/far did the officer follow your client before initiating the stop? Identify other factors that could have caused your client to exhibit the cue (e.g. a curvy road, adjusting the radio, debris in the road, etc.). If there is a recording of the stop, pay particular attention to the officer s driving. Did he or she exhibit any of the twenty-four cues? If the client did not exhibit one of the twenty-four (24) identified cues, this information can prove particularly helpful to the DUI practitioner. In many DUI cases, the stop of the defendant is based on factors other than poor driving, such as speeding, seatbelt violation, expired tags, headlight or taillight violation, etc. The manual describes 161 Note that the manual specifies cues observed during nighttime driving, versus clues exhibited during the performance of the SFSTs. 162 See, e.g., Student Manual, V-5 7 (1995). 43

47 driving as a complex divided attention task cautioning officers that, Under the influence of alcohol or many drugs, a person s ability to divide attention becomes impaired. The impaired driver tends to concentrate on certain parts of driving and to disregard other parts. 163 Drivers who are under the influence would have difficulty with the complexity of driving because they would be unable to divide their attention on the different tasks such as: steering; using the accelerator and brake; signaling; operating the clutch and gearshift; observing other traffic; and observing and reacting to other traffic and traffic control devices. 164 Take the opportunity in your cross-examination to exhaust all of the tasks and subtasks that your client performed correctly. When speeding is the sole reason for the stop of the defendant, an excellent cross-examination of the officer may be fashioned using detailed questions about the driving cues as noted above. The cross-examination should note the fact that speeding is not a recognized cue of impaired driving. Further, a judge or juror will understand through common sense that it takes greater skill to maintain control of a vehicle going faster than slower. For example, use the comparison of driving on the interstate at 55 miles per hour and driving at the Daytona 500 at 200 miles per hour. Your client is obviously not impaired if he or she is able to drive 20 miles per hour in excess of the speed limit without violating any other rules of the road. Once the officer activates the emergency equipment, an additional divided attention task is placed on the suspect between driving and responding to the stop 163 Participant Guide, Session 5, Page 14 (2013); Student Manual, V-8 (2006). 164 Participant Guide, Session 5, Page 13 (2013); Student Manual, V-8 9 (2006). 44

48 command. 165 Most officers make notes on how your client responded to the emergency equipment. Once the stop is initiated, the suspect must perform an increased number of tasks that can be explored in your cross-examination. These include: Observing the stop command; Surveying the surroundings to find a location to pull over; Stopping by signaling; Applying the brakes; Turning the steering wheel; Maneuvering the vehicle off of the road; and Parking the vehicle. All of these tasks must be accomplished while the suspect suffers from the increased anxiety of being stopped by a law enforcement officer. Most suspects are concerned with, at least: Why the officer is stopping them; How long it will take; How this will affect their insurance; and How much the ticket will cost. 2. Phase Two -- Personal Contact The second phase of DUI detection requires the officer to first use his or her senses of sight, smell and hearing to detect signs of impairment. 166 The officer is then 165 Participant Guide, Session 5, Page 17 (2013); Student Manual, V-10 (2006). 166 Participant Guide, Session 6, Pages 4-7 (2013); Student Manual, VI-2-3 (2006). 45

49 taught to employ techniques to further divide the suspect s attention to assist in obtaining evidence of impairment. 167 The use of senses often yields evidence such as odor of alcohol, bloodshot eyes, and slurred speech. Use your cross-examination to evoke that no scientific correlation has been established between any of these factors and either impairment or a specific blood alcohol level. You should further have the officer agree to the many innocent causes of each of the factors observed. For example, allergies cause bloodshot eyes; a speech impediment could account for slurred speech, etc. When dealing with the divided attention tasks given by the officer, the increased anxiety of the suspect cannot be underestimated. It is also important for the practitioner to know the medical history of the client. Has the client been treated for increased anxiety or anxiety attacks? Does the client suffer from Attention Deficit Disorder (ADD) or Attention Deficit Hyperactivity Disorder (ADHD), both of which could affect his or her ability to perform such tasks? 168 An effective way to establish that anxiety and nervousness could just as easily affect one s responses during this phase of detection is to test the officer during your cross-examination. Training teaches officers to ask unusual or distracting questions. 169 Mix some unusual or distracting questions into your cross-examination, such as: Q: You are trained to ask unusual and distracting questions? A: Yes. 167 Participant Guide, Session 6, Pages 9-11 (2013); Student Manual, VI-4-5 (2006). 168 David S. Katz, ADHD and Driving A Recipe for False DUI Convictions, The Champion, Apr. 2013, at Participant Guide, Session 6, Page 11 (2013); Student Manual, VI-5 (2006). 46

50 Q: For instance, asking a suspect the date of his anniversary? A: Yes. Q: When is your anniversary? 170 Some additional examples of distracting or unusual questions are: Without looking at your watch, what time is it? What is the meaning of police code 10-37? 171 If the officer professes that he can type without watching the keyboard (often important during the observation period before a breath alcohol test), ask him to start with the letter S on the keyboard and recite the next four letters to the right. Most experienced touch typists will not be able to answer this question. Just as the officers themselves are taught, use questions that would normally be easy to answer, but prove more difficult if the driver is nervous 172 just because the questions are unusual. 173 Continue to test the officer by giving your own psychophysical tasks while he is on the stand. For instance, have the officer perform a version of the finger count test in which he must use letters of the alphabet rather than numbers. To make the test more challenging, have him begin with a letter in the middle of the alphabet (e.g. JKLM MLKJ). Another divided attention task well known to most children is to have the officer pat his head while simultaneously rubbing his belly, then switching so he is rubbing his head while patting his belly. This most amusing to everyone in the courtroom except the officer! 170 This question could be verified by checking county records if the officer was married locally. 171 Check the law enforcement agency s 10 codes for an obscure code. 172 The manual states that the questions would be more difficult to answer if the driver is impaired. 173 Participant Guide, Session 6, Page 11 (2013); Student Manual, VI-5 (2006). 47

51 The exit sequence, also listed in the manual during the second phase of DUI detection, provides the practitioner with a list of factors that can be highlighted, embellished and used to prove your client s sobriety. 174 Examples of some leading questions to ask are: Mr. Smith was cooperative? Mr. Smith did not appear angry? Mr. Smith followed your instructions? He provided you with his driver s license? Without difficulty? He handed you a copy of his registration? Without difficulty? His proof of insurance Without difficulty? Mr. Smith exited the vehicle as you commanded? Mr. Smith did not have any difficulty opening his car door? He stepped out of his vehicle? Unassisted? Mr. Smith did not lean against the vehicle? 174 Participant Guide, Session 6, Page 13 (2013); Student Manual, VI-6 (2006). Note that in the 2013 edition, the factors are listed in the image of the slide at the top of the page instead of in the body of the text. 48

52 VII. CONCLUSION Close scrutiny of the three phases of DUI detection: the stop, personal contact, and the administration of the NHTSA Standardized Field Sobriety Tests will provide defense counsel with an abundance of cross examination material and can make the officer s opinion of intoxication appear less credible. One cannot over-emphasize the importance of absolute and complete familiarity with these tests and their history. Careful analysis of a case, whether the most mundane or most complex, can lead to the discovery of significant constitutional violations, which, in turn may result in the suppression of both behavioral and chemical evidence. Even during a jury trial, a reasonable trier of fact is more likely to acquit once the psycho-physical considerations, the inherent unfairness of the Standardized Field Sobriety Tests, and the problematic scoring practices are exposed. It is my hope that the information in these materials will assist defense counsel in reaching these goals. 49

53 Appendix A Page 1 50

54 Appendix A Page 2 51