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Many thanks to J. Matthew Guilfoil for his kind permission to reprint his work here.
View the original document on his website.
© The Missouri Bar 2004 J. Matthew Guilfoil*
Chapter 14
STANDARDIZED FIELD SOBRIETY TESTING AND
CROSS-EXAMINATION OF THE ARRESTING OFFICER
I. (§14.1) Introduction
II. (§14.2) NHTSA's Three Phases of DWI Detection
A. (§14.3) Phase I-Vehicle in Motion
1. (§14.4) Initial Observations: Visual Cues to DWI
2. (§14.5) Stopping Sequence
B. (§14.6) Phase II-Personal Contact
1. (§14.7) Observation and Interview of the Driver
2. (§14.8) Exit Sequence
3. (§14.9) Officer Reliance on Odor of Alcohol as Basis of
Reasonable Suspicion/Probable Cause
4. (§14.10) Officer Reliance on "Flushed or Red Face"
or "Bloodshot Eyes" as Basis of Reasonable Suspicion/Probable
Cause
5. (§14.11) Conclusion/NHTSA Impairment Clue Chart
______
*Mr. Guilfoil received his B.A. from DePaul University and his J.D.
from the University of Missouri at Kansas City. He is a partner
in the law firm of THE GUILFOIL LAW GROUP, L.L.C., in Kansas
City. Mr. Guilfoil has completed the International Association of
Chiefs of Police (IACP)/National Highway Traffic Safety Administration
(NHTSA) approved 20-hour course in the administration of standardized
field sobriety tests and is an IACP/NHTSA certified Standardized
Field Sobriety Testing Instructor. He has completed the 24-hour
Drug Evaluation and Classification Overview Course, which forms
the basis of the IACP/NHTSA Drug Recognition Expert Program. Mr.
Guilfoil is a member of The National College for DUI Defense, The
American Association of DUI Trial Lawyers, the Missouri Association
of Criminal Defense Lawyers, and the National Association of Criminal
Defense Lawyers, and is a Missouri internet affiliate to the internet
cites: www.drunkdrivingdefense.com and www.dui-dwi.com.
C. (§14.12) Phase III-Pre-Arrest Screening
1. Standardized Field Sobriety Testing
a. (§14.13) Background of Field Sobriety Testing
b. (§14.14) Development of NHTSA Standardized Field Sobriety
Test (SFST) Battery
c. Standardized Field Sobriety Testing Research-Validation Studies
(1) (§14.15) California (Lab)
(2) (§14.16) California (Lab and Field)
(3) (§14.17) Colorado (Field)
(4) (§14.18) Florida (Field)
(5) (§14.19) San Diego (Field)
d. (§14.20) NHTSA SFST Protocol
e. (§14.21) NHTSA SFST Purpose
f. (§14.22) Preliminary Advice to Clients Regarding Consenting
to Field Sobriety Testing
2. General Field Sobriety Testing Caselaw
a. (§14.23) Admissibility of "Scientific Evidence"
of Field Sobriety Testing
b. Missouri Field Sobriety Cases
(1) (§14.24) Admissibility of a Driver's Refusal of SFSTs
(2) (§14.25) Brown v. Director of Revenue
(3) (§14.26) Missouri Horizontal Gaze Nystagmus (HGN) Cases
c. (§14.27) Other Jurisdictions' Field Sobriety Cases
(1) (§14.28) State v. Homan
(2) (§14.29) United States v. Horn
(3) (§14.30) State v. Lasworth
3. NHTSA-Approved SFST Battery
a. (§14.31) HGN Test
(1) (§14.32) HGN Test Pretest and Instructions
(2) (§14.33) Lack of Smooth Pursuit
(3) (§14.34) Distinct Nystagmus at Maximum Deviation
(4) (§14.35) Onset of Nystagmus Prior to 45 Degrees
(5) (§14.36) Vertical Gaze Nystagmus (VGN)
b. (§14.37) Walk-and-Turn (WAT) Test
(1) (§14.38) Two Stages of WAT Test
(a) (§14.39) Instructions Stage
(b) (§14.40) Walking Stage
(2) (§14.41) Scoring
c. (§14.42) One-Leg Stand (OLS) Test
(1) (§14.43) Two Stages of OLS Test
(a) (§14.44) Instructions Stage
(b) (§14.45) Balance and Counting Stage
(2) (§14.46) Scoring
4. (§14.47) Portable Breath Tests (PBTs); Missouri PBT Law
5. (§14.48) Arrest Decision
6. (§14.49) Fifth Amendment Considerations; Tests Testimonial
in Nature
7. (§14.50) Nonstandardized Field Sobriety Tests
a. (§14.51) Finger-to-Nose Test
b. (§14.52) Finger-Count Test
c. (§14.53) Hand-Pat Test
d. (§14.54) Alphabet Test
e. (§14.55) Reverse Counting/Countdown
f. (§14.56) Tracing/Writing/Drawing Test
g. (§14.57) Rhomberg Test
III. Admission of NHTSA Manuals Into Evidence
A. (§14.58) Generally
B. (§14.59) Certified Copies
C. (§14.60) Noncertified Copies
IV. Cross-Examination of Arresting Officer
A. (§14.61) Visiting the Scene of the Stop
B. (§14.62) Videotapes
C. (§14.63) Police Reports
D. (§14.64) Examination of Officer Before Trial
E. (§14.65) Reasonable Suspicion/Probable Cause Based on SFSTs
F. (§14.66) Outline for Cross-Examination
G. (§14.67) Examples of Cross-Examination Questions
1. (§14.68) Introduction
2. (§14.69) Reports
3. (§14.70) Number of DWI Trials
4. (§14.71) Overtime Related to Arrests
5. (§14.72) Professional Witness
6. (§14.73) Operation (if at Issue)
7. (§14.74) Vehicle in Motion
8. (§14.75) Further Driving Examples
9. (§14.76) Stopping Sequence
10. (§14.77) Initial Response to Emergency Lights
11. (§14.78) Personal Observations
12. Interview
a. (§14.79) General
b. (§14.80) NHTSA Interview Clues
c. (§14.81) Requests for Documentation
d. (§14.82) Nervousness
e. (§14.83) Odor of Intoxicating Beverage
f. (§14.84) Blood Shot Eyes-Dazed Look on Face
g. (§14.85) Slurred Speech
h. (§14.86) Flushed Face
i. (§14.87) Sluggish Mannerisms
13. (§14.88) Exit Sequence
14. (§14.89) Exit Sequence Further Examples
15. (§14.90) Standardized Field Sobriety Testing
a. (§14.91) HGN Test
(1) (§14.92) Test Conditions
(2) (§14.93) Pretest
(3) (§14.94) Lack of Smooth Pursuit
(4) (§14.95) Distinct Nystagmus at Maximum Deviation
(5) (§14.96) Onset of Nystagmus Prior to 45 Degrees
b. (§14.97) WAT Test
c. (§14.98) Other Examples for WAT
d. (§14.99) OLS Test
16. (§14.100) Blood Alcohol Content (BAC) Correlation With
Time
17. (§14.101) Timing of Events
I. (§14.1) Introduction
The process of detecting driving while intoxicated (DWI) offenses
begins when a law enforcement officer suspects a potential alcohol-related
traffic offense may be occurring, and it does not end until the
officer decides to arrest or not arrest a subject for DWI. Conduct
that occurs during the time period from when a driver is first observed
by the officer until an arrest decision is made is regulated by
the National Highway Traffic Safety Administration's (NHTSA) DWI
Detection and Standardized Field Sobriety Testing Manual. U.S. Department
of Transportation, NHTSA, DWI Detection and Standardized Field Sobriety
Testing, Student Manuals.
In 1986, the Advisory Committee on Highway Safety of the International
Association of Chiefs of Police (IACP) passed a resolution recommending
that all law enforcement agencies adopt and implement the standardized
field sobriety testing procedures developed by NHTSA. In 1992, NHTSA
and the IACP Advisory Committee on Highway Safety adopted the current
NHTSA course, "DWI Detection and Standardized Field Sobriety
Testing." The standards of this program have been approved
by the voting membership of the IACP.
The police academy in Missouri has been teaching the NHTSA-based
course of DWI detection and standardized field sobriety testing
since 1984. Accordingly, law enforcement in Missouri is governed
by its protocol. Because there are only three field sobriety tests
"standardized" by NHTSA for determining alcohol impairment
in drivers, it is vital for practitioners to become familiar with
NHTSA's rules for the proper administration of these tests. The
NHTSA DWI Detection Manuals, both Student and Instructor, from the
various years, may be ordered from the National Technical Information
Service, 5285 Port Royal Road, Springfield, Virginia 22161, 800/553-6847,
or at a discounted rate from consultants Walden, Platt and Associates,
219 North Main Street, Suite 406, Bryan, Texas 77803, 979/822-3060,
www.waldenplatt.com.
It is important also to note as a preliminary matter that the administration
of standardized field sobriety tests (SFSTs) is only one part of
NHTSA's protocol regarding proper DWI detection by law enforcement
(Phase III-"Pre-Arrest Screening"). Phase I ("Vehicle
in Motion") and Phase II ("Personal Contact") of
NHTSA's curriculum regulate all contact by the law enforcement officer
with a suspected driver before field sobriety tests are administered
in Phase III. 2002 NHTSA Student Manual, IV-5. While Phase I or
Phase II of the NHTSA course might not be applicable in some cases,
such as when there has been an accident or in the case of a sobriety
checkpoint, it is very clear that there must be sufficient reasonable
suspicion from the officer's observations of the driver in these
initial phases to justify proceeding with the administration of
SFSTs in Phase III.
II. (§14.2) NHTSA's Three Phases of DWI Detection
As discussed in §14.1 above, there are three phases to the
National Highway Traffic Safety Administration (NHTSA) protocol
for driving while intoxicated (DWI) detection:
1. Phase I-Vehicle in Motion
2. Phase II-Personal Contact
3. Phase III-Pre-Arrest Screening
The U.S. Department of Transportation, NHTSA, DWI Detection and
Standardized Field Sobriety Testing, Student Manual (2002 NHTSA
Student Manual), specifies that "[i]n each phase of detection,
[the officer] must determine whether there is sufficient evidence
to establish 'reasonable suspicion' necessary to proceed to the
next step in the detection process." 2002 NHTSA Student Manual,
IV-5. In short, the officer does not have the right to administer
standardized field sobriety tests (SFSTs) to a driver unless the
officer possesses reasonable suspicion from personal observations
of the driver under Phases I and II.
A. (§14.3) Phase I-Vehicle in Motion
As mentioned in §4.1 above, Phase I might not be applicable
in some cases, as in some accidents or sobriety checkpoint cases.
But an officer who can observe the vehicle in motion must follow
the NHTSA protocol for observing the driver while operating the
vehicle. When Phase I applies, the officer is required to observe
clues regarding the vehicle in operation and regarding the driver's
stopping sequence.
1. (§14.4) Initial Observations: Visual Cues to DWI
The officer is to ask the following preliminary questions when observing
the vehicle in motion:
" What is the vehicle doing?
" Do I have grounds to stop the vehicle?
" How does the driver respond to my signal to stop?
" How does the driver handle the vehicle during the stopping
sequence?
NHTSA protocol instructs officers that there are a number of visual
clues to use and record while observing the vehicle in motion. 2002
NHTSA Student Manual, V-5-V-8; 2002 NHTSA Instructor Manual, V-4:
" Turning with a wide radius
" Straddling center or lane marker
" Appearing to be impaired
" Eye fixation
" Tightly gripping the steering wheel
" Slouching in the seat
" Gesturing erratically or obscenely
" Face close to the windshield
" Drinking in the vehicle
" Driver's head protruding from the vehicle
" Almost striking an object or vehicle
" Weaving
" Driving on other than designated roadway
" Swerving
" Speed slower than 10 m.p.h. below the limit
" Stopping in the lane for no apparent reason
" Following too closely
" Drifting
" Tires on center or lane marker
" Braking erratically
" Driving into opposing or crossing traffic
" Slow response to traffic signals
" Signaling inconsistent with driving actions
" Stopping inappropriately with driving actions
" Stopping inappropriately (other than in traffic lane)
" Turning abruptly or illegally
" Accelerating or decelerating rapidly
" Headlights off
2. (§14.5) Stopping Sequence
The second component of observing the vehicle in motion requires
the officer to observe and record the stopping sequence of the driver.
The officer is to "observe the manner in which the driver responds
to [the] signal to stop, and to note any additional evidence of
a DWI violation." 2002 NHTSA Student Manual, V-10. The cues
the officer is to use in observing and recording the driver's stopping
sequence are:
an attempt to flee;
no response;
slow response;
an abrupt swerve;
sudden stop; and
striking the curb or another object.
Id.
If Phase I applies and the officer has reasonable suspicion to
believe that an alcohol-related traffic offense is occurring, the
officer is to proceed with Phase II.
B. (§14.6) Phase II-Personal Contact
The officer's personal observation of the driver in Phase II is
a pivotal point in a DWI case. Under NHTSA protocol, the officer
is to:
1. observe and interview the driver; and
2. observe the driver's exit and walk when the driver is asked to
step from the vehicle.
It should be noted that NHTSA instructs the officer to proceed
with the second step and observe the driver's exit and walk after
asking the driver to step from the vehicle only if sufficient cause
exists to warrant further investigation after the driver's interview
unless it is the jurisdiction's policy to make all drivers step
from the vehicle at this point in the process. 2002 NHTSA Student
Manual, VI-1-2; 2002 NHTSA Instructor Manual, VI-2. It is important
for the defense practitioner to be aware of the procedures of the
police department in the case.
1. (§14.7) Observation and Interview of the Driver
When observing and interviewing the driver, NHTSA provides the
following questions for the officer to observe and record:
" When I approach the vehicle, what do I see?
" When I talk to the driver, what do I hear, see, and smell?
" How does the driver respond to my questions?
" Should I instruct the driver to exit the vehicle?
" How does the driver exit?
" When the driver walks toward the side of the road, what do
I see?
NHTSA also offers the following clues for the officer to observe
and record at this point in the stop:
" Sight-bloodshot eyes, soiled clothing, fumbling fingers,
alcohol containers, drugs or drug paraphernalia, bruises, bumps
or scratches, unusual actions
" Hearing-slurred speech, admission of drinking, inconsistent
responses, abusive language, unusual statements
" Smell-alcoholic beverages, marijuana, cover up odors like
breath sprays, unusual odors
2002 NHTSA Student Manual, VI-3; 2002 NHTSA Instructor Manual,
VI-3-4.
NHTSA's protocol suggests that, while observing and recording any
of the above clues during the interview, the officer pose divided-attention
tasks to the driver by asking that more than one task be performed
at the same time, e.g., requesting the driver's license and vehicle
registration at the same time. The following are further clues the
officer is trained to look for while administering divided-attention
requests to the driver in Phase II:
" Forgets to produce both documents (driver's license and registration)
" Produces documents other than those requested
" Fails to see the license, registration, or both while searching
through wallet or purse
" Fumbles or drops wallet, purse, license, or registration
" Is unable to retrieve documents using fingertips
2002 NHTSA Student Manual, VI-4; 2002 NHTSA Instructor Manual VI-7.
During the driver interview in Phase II, the officer may consider
employing the "additional techniques" of three nonstandardized
field sobriety tests:
1. Alphabet
2. Countdown
3. Finger count
2002 NHTSA Student Manual, VI-5-6; 2002 NHTSA Instructor Manual,
VI-8-9. While NHTSA offers these three items as techniques to employ
at this point in the DWI detection process, the text in the student
manual emphasizes: "THESE TECHNIQUES DO NOT REPLACE THE SFST."
2002 NHTSA Student Manual, VI 4. Because these types of tests are
not "standardized," i.e., there are no set administrative
procedures or scoring protocol, and because NHTSA studies specifically
excluded these tests as unreliable in determining alcohol impairment
in its SFST validation studies, defense counsel should seek their
suppression, or at least obtain a limiting instruction. See §§14.50-14.57,
infra.
2. (§14.8) Exit Sequence
The 2002 NHTSA Instructor Manual provides:
1. The decision to instruct the suspect to exit the vehicle may
be based on suspicion that the suspect may be impaired.
a. Even though that suspicion may be strong, the suspect usually
is not yet under arrest at this point.
b. How the suspect exits the vehicle, and the actions and behavior
of the suspect during the exit sequence, may provide important additional
evidence of alcohol and/or other drug influence.
2002 NHTSA Instructor Manual, VI-9. NHTSA instructs the officer
that, if sufficient cause exists to order the driver to step from
the vehicle for further investigation after the initial interview,
the officer is to then observe and record the driver's exit and
walk from the vehicle. The officer is to observe and record the
following clues for the driver's exit sequence in Phase II:
shows angry or unusual reactions;
cannot follow instructions;
cannot open the door;
leaves the vehicle in gear;
"climbs" out of vehicle;
leans against vehicle;
keeps hands on vehicle for balance.
2002 NHTSA Student Manual, VI-6.
Counsel should note that the Supreme Court of the United States
has made it clear that the detention of a person "must be temporary
and last no longer than is necessary to effectuate the purpose of
the stop." Fla. v. Royer, 460 U.S. 491, 500 (1983). When a
driver is stopped for a minor traffic violation and the officer
continues to detain the driver to investigate more serious offenses,
such as drunk driving, many states hold that the officer must have
articulable, reasonable suspicion to do so.
In Missouri, when an officer stops a vehicle to issue a de minimis
citation, such as a license plate expiration, the officer may properly
order a motorist out of a vehicle, even without any indication of
illegal conduct besides the de minimis violation. State v. Preston,
861 S.W.2d 627 (Mo. App. E.D.1993); see also Pa. v. Mimms, 434 U.S.
106 (1977) (a person can be required to exit a vehicle without any
additional justification, in furtherance of officer safety). In
Missouri, a police officer's investigation during a traffic stop
may include:
" asking for a driver's license and registration;
" requesting that the driver sit in the patrol car; and
" asking about the driver's destination and purpose.
But once the officer has completed these steps, the detainee must
be allowed to proceed unless specific, articulable facts create
objectively reasonable suspicion that the driver is involved in
criminal activity. State v. Slavin, 944 S.W.2d 314 (Mo. App. W.D.
1997).
3. (§14.9) Officer Reliance on Odor of Alcohol as Basis of
Reasonable Suspicion/Probable Cause
Counsel is often presented with the scenario of an arresting officer
basing "reasonable suspicion" to make the driver exit
the vehicle and perform SFSTs solely on the odor of alcohol on the
driver's breath with no other indicia of intoxication. Defense counsel
faced with this situation should refer for cross-examination of
the officer to a study on whether alcohol odor is an accurate or
effective means of detecting intoxication. See Herbert Moskowitz,
Marcelline Burns & Susan Ferguson, Police Officers' Detection
of Breath Odors From Alcohol Ingestion, 31 ACCIDENT ANALYSIS AND
PREVENTION 175 (May 1999). It should be noted that this study was
conducted by the same researchers who conducted NHTSA's validation
studies for standardized field sobriety testing. The conclusions
of the researchers in the study were clear: breath odor detection
is completely unreliable in determining whether subjects with alcohol
on their breath are above or below certain blood alcohol concentration
(BAC) levels, and the officers' estimates of BAC levels in the study
failed to rise above random guesses.
Counsel should also refer to caselaw on the subject of reasonable
suspicion being based solely on the odor of alcohol. See State v.
Taylor, 444 N.E.2d 481, 482 (Ohio Ct. App. 1981):
The mere odor of alcohol about a driver's person, not even characterized
by such customary adjectives as "pervasive" or "strong,"
may be indicia of alcohol ingestion, but is no more a probable indication
of intoxication than eating a meal is of gluttony. For better or
worse, the law prohibits drunken driving, not driving after a drink.
Id. at 482.
See also:
" Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994) (slight
weaving across line, "normal" odor of alcohol beverage,
admission of a couple of drinks, and refusal of field sobriety tests);
" Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992);
" State v. Kliphouse, 771 So.2d 16 (Fla. Dist. Ct. App. 2000)
(unconscious motorcyclist who did not cause accident had odor of
alcoholic beverage);
" State v. Taylor, 444 N.E.2d 481 (see above);
" People v. Boomer, 757 N.E.2d 960 (Ill. App. Ct. 2001), review
denied, 766 N.E.2d 241 (Ill. 2002) (strong odor of alcohol on the
breath of a person who had been involved in a motorcycle accident
did not constitute probable cause to believe the person was under
the influence);
" People v. Roybal, 655 P.2d 410 (Colo. 1982) (when there
was no indication that defendant caused collision, and arresting
officer observed none of the common indicia of intoxication in defendant's
speech, walk, or ability to understand, there was no probable cause
to arrest defendant for driving under influence of intoxicating
liquor, notwithstanding that officer noticed odor of alcoholic beverage
about defendant).
4. (§14.10) Officer Reliance on "Flushed or Red Face"
or "Bloodshot Eyes" as Basis of Reasonable Suspicion/Probable
Cause
Besides "odor of alcohol," perhaps the most common observations
an officer will give as indicia of intoxication for determining
reasonable suspicion or probable cause are "red or flushed
face" and "bloodshot eyes." It is unlikely that counsel
will ever come across a DWI case when at least some of these boxes
on the police report are not marked. When an officer relies heavily
on "red or flushed face" or "bloodshot eyes"
as the sole basis for continuing the investigation of the driver,
the case should be vigorously challenged because NHTSA has discounted
these clues as prejudicial and irrelevant to determining intoxication.
NHTSA released a report in 1997 that removes all of these clues
as indicators of impairment. The materials provide an excellent
resource for cross-examination of an arresting officer. Specifically,
the report states:
Finally, some cues were eliminated because they might be indicators
more of social class than of alcohol impairment. For example, officers
informed us that a flushed or red face might be an indication of
a high BAC in some people. However, the cue also is characteristic
of agricultural, oil field, and other outside work. Similarly, bloodshot
eyes, while associated with alcohol consumption, also is a trait
of many shift workers and people who must work more than one job,
as well as those afflicted by allergies. A disheveled appearance
similarly is open to subjective interpretation. We attempted to
limit the recommendation to clear and objective post-stop behaviors.
Jack Stuster, U.S. Department of Transportation, NHTSA
Final Report, The Detection of DWI at BACs Below 0.10,
DOT HS 808-654 (Sept. 1997), p. E-10, available at http://isddc.dot.gov/OLPFiles/NHTSA/007372.pdf.
5. (§14.11) Conclusion/NHTSA Impairment Clue Chart
It is vital that defense counsel thoroughly examine all the facts
and actions of the driver and the police officers in the case, looking
to see whether reasonable suspicion was present by an objective
standard before the officer administered any SFSTs in Phase III.
When evaluating the clues of impairment, the following is a helpful
chart of NHTSA's Phase I and Phase II clues, developed by Troy Huser
of Manhattan, Kansas, cited with his permission. An effective technique
for cross-examination of the arresting officer is to "grade"
the driver's performance during the arrest using this chart by marking
all clues observed and not observed by the officer.
To use this chart, the percentages listed indicate how accurate
NHTSA believes the clues to be for indicating alcohol impairment
in a driver. The chart lists 65 possible clues. An effective technique
is to add up the total clues the officer testifies were allegedly
observed, and subtract that number from the 65 total clues. This
usually leaves the driver a favorable percentage of indicating sobriety-i.e.,
the NHTSA clues not observed will indicate the driver's grade for
sobriety.
NHTSA IMPAIRMENT CLUE CHART
IMPAIRMENT CLUE OBSERVED BY OFFICER NOT OBSERVED BY OFFICER
SOURCE
NHTSA 2000 [NHTSA 1995] {NHTSA 2002}
INITIAL OBSERVATIONS
Slowed reactions
V-2, [V-2], {V 2}
Willingness to take risks
V-2, [V-2], {V 2}
Impaired vision
V-2, [V-2], {V 2}
Poor coordination
V-2, [V-2], {V 2}
VISUAL CUES OF DRIVING
Turning with wide radius
V-4, [V-5 65%], {V-5}
Straddling center or lane marker
V-4, [V-5 65%], {V-5}
Appearing to be impaired
V-4, [V-5 60%], {V-5}
Eye fixation
V-4, [V-5], {V-5}
Tightly gripping steering wheel
V-4, [V-5], {V-5}
Slouching in seat
V-4, [V-5], {V-5}
Gesturing
erratically or obscenely
V-4, [V-5], {V-5}
Face close to the
windshield
V-4, [V-5], {V-5}
Drinking in
Vehicle
V-4, [V-5], {V-5}
Driver's head
protruding from vehicle
V-4, [V-5], {V-5}
Almost striking object or vehicle
V-4, [V-5 60%], {V-5}
Weaving
V-4, [V-5 60%], {V-5}
Driving on other than designated roadway
V-4, [V-5 55%], {V-5}
Swerving
V-5, [V-6 55%], {V-6}
Speed slower than 10 MPH
V-5, [V-6 50%], {V-6}
Stopping in lane for no apparent reason
V-5, [V-6 50%], {V-6}
Following too closely
V-5, [V-6 50%], {V-6}
Drifting
V-5, [V-6 50%], {V-6}
Tires on center lane marker
V-5, [V-6 45%], {V-6}
Braking erratically
V-5, [V-6 45%], {V-6}
Drifting into opposing or oncoming traffic
V-6, [V-7 45%], {V-7}
Slow response to traffic signals
V-6, [V-7 40%], {V-7}
Signaling in- consistent with driving actions
V-6, [V-7 40%], {V-7}
Stopping inappropriately (other than in traffic lane)
V-6, [V-7 35%], {V-7}
Turning abruptly or illegally
V-6, [V-7 35%], {V-7}
Accelerating or decelerating rapidly
V-6, [V-7 30%], {V-7}
Headlights off
V-6, [V-7 30%], {V-7}
STOPPING SEQUENCE
Attempt to flee
V-9, [V-10], {V-10}
No response
V-9, [V-10], {V-10}
Slow response
V-9, [V-10], {V-10}
Abrupt swerve
V-9, [V-10], {V-10}
Sudden stop
V-9, [V-10], {V-10}
Striking the curb or object
V-9, [V-10], {V-10}
PERSONAL CONTACT
Sight
Bloodshot eyes
VI-3, [VI-3], {VI-3}
Soiled clothing
VI-3, [VI-3], {VI-3}
Fumbling fingers
VI-3, [VI-3], {VI-3}
Alcohol containers in vehicle
VI-3, [VI-3], {VI-3}
Drugs/
Paraphernalia
VI-3, [VI-3], {VI-3}
Bruises/Bumps/
Scratches
VI-3, [VI-3], {VI-3}
Unusual actions
VI-3, [VI-3], {VI-3}
Hearing
Slurred speech
VI-3, [VI-3], {VI-3}
Admission of drinking
VI-3, [VI-3], {VI-3}
Inconsistent responses
VI-3, [VI-3], {VI-3}
Abusive
language
VI-3, [VI-3], {VI-3}
Unusual
statements
VI-3, [VI-3], {VI-3}
Smell
Alcoholic
beverages
VI-3, [VI-3], {VI-3}
Marijuana
VI-3, [VI-3], {VI-3}
Breath cover-ups, e.g., sprays
VI-3, [VI-3], {VI-3}
Unusual odors
VI-3, [VI-3], {VI-3}
PRE-EXIT INTERVIEW
Forgets to produce both documents
VI-4, [VI-4], {VI-4}
Produces documents other than requested
VI-4, [VI-4], {VI-4}
Fails to see item in wallet
VI-4, [VI-4], {VI-4}
Fumbles or drops wallet or document
VI-4, [VI-4], {VI-4}
Can't retrieve documents using fingertips
VI-4, [VI-4], {VI-4}
EXIT SEQUENCE
Shows angry/ unusual actions
VI-6, [VI-6], {VI-6}
Cannot follow instructions
VI-6, [VI-6], {VI-6}
Cannot open the door
VI-6, [VI-6], {VI-6}
Leaves vehicle in gear
VI-6, [VI-6], {VI-6}
"Climbs" out of vehicle
VI-6, [VI-6], {VI-6}
Leans on vehicle
VI-6, [VI-6], {VI-6}
Keeps hands on vehicle for balance
VI-6, [VI-6], {VI-6}
TOTALS
______ of 65
Possible Clues Observed
100-90 A
89-80 B
79-70 C
69-60 D
C. (§14.12) Phase III-Pre-Arrest Screening
Phase III is the "pre-arrest screening," which has "two
major evidence gathering tasks and one major decision." U.S.
Department of Transportation, National Highway Traffic Safety Administration
(NHTSA), DWI Detection and Standardized Field Sobriety Testing,
Student Manual (2002 NHTSA Student Manual), VII-1. First, the officer
is to administer the three standardized field sobriety tests to
the driver:
1. Walk-and-turn (WAT) test
2. One-leg stand (OLS) test
3. Horizontal gaze nystagmus (HGN) test
If sufficient probable cause exists to arrest the driver based
on the driver's performance on the three tests, the officer may
then arrange for, or administer, a preliminary portable breath test
(PBT). Both of these tasks culminate in the decision of whether
to arrest the driver for an alcohol-related traffic offense. The
student manual instructs the officer to consider the following when
conducting Phase III:
" Should I administer field sobriety tests to the driver?
" How does the driver perform those tests?
" What exactly did the driver do wrong when performing the
tests?
" Do I have probable cause to arrest for driving while intoxicated
(DWI)?
" Should I administer a PBT?
" What are the results of the PBT?
1. Standardized Field Sobriety Testing
a. (§14.13) Background of Field Sobriety Testing
Police officers have administered various forms of field sobriety
tests to drivers as long as there have been alcohol-related traffic
offenses. The performance of the driver on these tests has been
used by police for years to develop probable cause for arrest and
as evidence in court. Before the mid-1970s, a wide variety of field
tests were used to determine whether a driver was "sober."
It became evident that there was a need to develop a battery of
valid, standardized field sobriety tests because the existing tests
were being administered inconsistently between jurisdictions and
ranged from blowing up a balloon to picking up loose change off
the hood of a vehicle. U.S. Department of Transportation, NHTSA,
DWI Detection and Standardized Field Sobriety Testing, Instructor
Manual (2002 NHTSA Instructor Manual), VIII-1.
b. (§14.14) Development of NHTSA Standardized Field Sobriety
Test (SFST) Battery
In 1975, the NHTSA contracted with the Southern California Research
Institute (SCRI) to evaluate the sobriety tests that officers were
using in the field at the time to make alcohol-related traffic arrests
and to determine which of the existing tests being typically administered
were the most accurate. Marcelline Burns & Herbert Moskowitz,
U.S. Department of Transportation, NHTSA Final Report, Psychophysical
Tests for DWI Arrest, DOT HS-802-424 (June 1977), available from
National Technical Information Service, 5285 Port Royal Road, Springfield,
Virginia 22161, 800/553-6847.
c. Standardized Field Sobriety Testing Research-Validation Studies
(1) (§14.15) California (Lab)
To determine which of the field sobriety tests were being administered
the most frequently, SCRI traveled through the United States interviewing
law enforcement agencies regarding their practices. Initially, six
tests were used for the study:
1. OLS test
2. Finger-to-nose test
3. Finger count test
4. WAT test
5. Tracing/drawing/writing test
6. Both the vertical and horizontal gaze nystagmus tests
There were also four alternate field tests to be used. The results
of the test were scored from one to ten.
The 1977 research had the following objectives:
To evaluate currently used physical coordination tests to determine
their relationship to intoxication and driving impairment; to develop
more sensitive tests that would provide more reliable evidence of
impairment; and, to standardize the tests and observations.
Marcelline Burns & Herbert Moskowitz, U.S. Department of Transportation,
NHTSA, Psychophysical Tests for DWI Arrest, DOT HS-802-424, p. 9
(June 1977).
Ten officers performed the field tests on 238 subjects, and:
The researchers analyzed their data and found that, using the sores
from all six tests, they could correctly classify a volunteer's
BAC as being either above or below 0.10 about 83 percent of the
time.
1995 NHTSA Student Manual, VIII-2.
SCRI's research indicated that three of these tests-the OLS test,
the WAT test, and the alcohol gaze nystagmus test, later called
the HGN test-were the most reliable of the six tests for the purposes
of determining blood alcohol contents (BACs) above 0.10, but that
"these tests were not yet standardized in their final form."
Standardization was allegedly achieved in the next phase of research.
Id. at VIII 3.
It should be noted that, even using the allegedly accurate three-test
SFST battery, 47% of the subjects who would have been arrested in
the field based on the officers' scoring of the three SFSTs had
actual BACs below 0.10. Marcelline Burns & Herbert Moskowitz,
U.S. Department of Transportation, NHTSA, Psychophysical Tests for
DWI Arrest, DOT HS-802-424, at 28, 30, 102 (June 1977).
Problems with the scientific validity of the 1977 SCRI study include,
but are not limited to, the following:
" No ophthalmologists or neurologists were consulted.
" There was no true reliability testing conducted.
" There were no controls in place for the variables: alcohol
odor, subjects' swaying while performing the test, subjects' eyes,
or subjects' attitudes.
" Obese and elderly subjects were excluded entirely from the
test, possibly skewing the data.
" Prevailing literature was selectively referenced.
" There was no contact lens testing.
After the 1977 study, SCRI attempted to standardize conditions in
both the laboratory and the field with respect to these three field
sobriety tests.
(2) (§14.16) California (Lab and Field)
The 1981 California lab and field study exclusively utilized the
new three-test field sobriety battery (OLS, WAT, and HGN). V. Tharp,
Marcelline Burns & Herbert Moskowitz, U.S. Department of Transportation,
NHTSA, Development and Field Test of Pyschophysical Tests for DWI
Arrest, DOT HS-805-864 (March 1981).
Ten officers administered the field sobriety battery to 297 subjects
whose BACs ranged from 0.00% to 0.18%. Id. at p. 2; 1995 NHTSA Student
Manual, VIII-4.
Law enforcement officers were allegedly able to correctly determine
whether a test subject's BAC was above or below the 0.10 BAC level
using the three-test battery 81-82% of the time, with the HGN test
being 77% accurate, the WAT test 68% accurate, and the OLS test
65% accurate. The average error made by the officers in determining
the subject's correct BAC was 0.03%; thus, a 0.10% guess could be
0.07% or 0.13%. Development and Field Test of Psychophysical Tests
for DWI Arrest, DOT HS-805-864, p. 2; 1995 NHTSA Student Manual,
VIII-5.
The error rate for false arrests lowered somewhat in the 1981 study
from the 1977 study. The false arrest results dropped from 47% to
32%, i.e., one-third of people were falsely arrested in the study.
Development and Field Test of Psychophysical Tests for DWI Arrest,
DOT HS-805-864. Another interesting note is that 50% of all the
subjects had Distinct Nystagmus at Maximum Deviation, clue two of
the HGN test, without any alcohol. Id. at 7.
Problems with the scientific validity of the 1981 SCRI study include,
but are not limited to, the following:
" The study lacked a control group.
" The study lacked random subjects.
" The study lacked a blind study group.
" No ophthalmologists or neurologists were consulted.
" There was no true reliability testing conducted.
" No controls were in place for the variables: alcohol odor,
subjects' swaying while performing the test, the subjective condition
of the subjects' eyes, or subjects' attitudes.
" Obese and elderly subjects were excluded entirely from the
test, possibly skewing the data.
" Prevailing literature was selectively referenced.
" There was no contact lens testing.
A separate field study was also conducted at the same
time to determine proper procedures for administering
the new three-test field sobriety battery and for setting
forth scoring procedures for law enforcement officers
to utilize while administering the tests in the field.
Theodore E. Anderson, Robert M. Schweitz & Monroe B. Snyder,
U.S. Department of Transportation, NHTSA Technical Note, Field Evaluation
of a Behavioral Test Battery for DWI, DOT HS 806-475 (Sept. 1983),
available at www.ndaa-apri.org/pdf/eval_beh.pdf. These scoring procedures
form the basis of the current NHTSA protocol, which officers are
trained to follow in administering the three standardized field
sobriety tests.
(3) (§14.17) Colorado (Field)
The next validation study, in Colorado, was unique in that it focused
on BAC levels of 0.05% and 0.10%. The goal of the study was to validate
the new field sobriety battery for a 0.05% BAC standard. Law enforcement
officers from across Colorado were trained in the proper administration
of the three SFSTs, and they submitted to researchers of the SFSTs
the results of tests they administered to drivers over a five-month
period. The study used a modified scoring system, which differed
from that used in the previous studies.
The researchers tested the accuracy of the new three-test SFST battery
by comparing the field-test results as scored by the officer with
a breath or blood sample of the same driver who performed the field
tests, or with a PBT administered in the field. Marcelline Burns
& Ellen W. Anderson, A Colorado Validation Study of the Standardized
Field Sobriety Test (SFST) Battery (Nov. 1995), p. 3, available
at www.ndaa-apri.org/pdf/co_val2.pdf. The mean BAC of subjects in
the study was 0.152%.
Breath and blood tests allegedly supported 94% of the officers'
decisions to arrest based on the results of the administered field
sobriety tests, using the 0.05% BAC standard. Further, PBT measurements
indicated 64% correct release decisions, despite the fact that in
many states, including Missouri, PBTs are not evidentiary and cannot
be relied on for any purpose other than establishing probable cause.
The Colorado study concluded that: "Overall, 86% of the officers'
decisions to arrest or release drivers who provided blood or breath
specimens were correct." Id. at 3.
Defense counsel should note that NHTSA and SCRI never released
the results of the Colorado study regarding the 0.10% BAC standard,
and the officers' administration of the field sobriety testing battery
was only monitored 40% to 50% of the time during the Colorado study.
(4) (§14.18) Florida (Field)
The Florida validation study used the same basic methodology as
the Colorado study-see Marcelline Burns & Ellen W. Anderson,
A Colorado Validation Study of the Standardized Field Sobriety Test
(SFST) Battery (Nov. 1995)-except that it attempted to validate
the SFSTs to a 0.08% BAC standard. The goals of the Florida validation
study were to ensure:
" standardization of the administration and interpretation
of the SFSTs;
" data integrity; and
" data completeness.
Marcelline Burns & Teresa R. Dioquino, A
Florida Validation Study of the Standardized Field Sobriety Test
(S.F.S.T.) Battery (1997), at p. 8, available at www.ndaa-apri.org/pdf/FL_vald.pdf.
As with the Colorado study, enforcement officers from across the
state were trained in the proper administration of the three SFSTs,
and they submitted to researchers the results of the SFSTs they
administered to drivers. The researchers in the Florida study also
tested the accuracy of the SFST battery by comparing the field-test
results as scored by officers with a breath or blood sample of the
driver, or with a PBT administered in the field.
The Florida validation study consisted of 256 measured BACs. Breath
or blood testing at the station accounted for 210 of the recorded
BAC results, and 46 were obtained with a PBT device. Id. at p. 16.
The mean BAC of subjects in the study was 0.15%.
The Florida study concluded, "The data obtained during this
study demonstrate that 95% of the officers' decisions to arrest
drivers were correct decisions. Furthermore, 82% of their decisions
to release drivers were correct." Id. at 38.
Problems with the scientific validity of the 1997 Florida study
include, but are not limited to, the following:
" The subjects could be objectively viewed as disproportionately
impaired in the study, artificially increasing the number of correct
arrests made by officers, while, at the same time, decreasing the
tests' sensitivity and the validity of the results of the test battery
for a 0.08% BAC standard. Of the subjects tested, only 19% had a
BAC less than 0.08%, only 12% had a BAC between 0.08% and 0.10%,
and a disproportionately large 41% of the test subjects had a BAC
in excess of 0.15%.
" All of the officers used in the study were standardized
field sobriety testing instructors, with six to nine years of experience.
Because no officers were used with less than six years of experience,
the tests' objectivity and sensitivity were arguably voided regarding
less-trained officers administering the tests.
" The officers administering the test battery were only monitored
by the researchers 64% of the time during the study.
(5) (§14.19) San Diego (Field)
In 1997, another SFST validation study was conducted utilizing
officers from San Diego, California. Jack W. Stuster & Marcelline
Burns, Validation of the Standardized Field Sobriety Test Battery
at BACs Below 0.10 Percent, U.S. Department of Transportation, NHTSA,
DOT HS-808-839 (Aug. 1998), available at www.nhtsa.dot.gov/people/injury/
alcohol/Archive/Limit.08/!SFSTREP.PDF. The mean BAC of the subjects
used in the study was 0.11%.
The San Diego validation study found:
[T]hat officers' estimates of whether a motorist's BAC was above
or below 0.08 or 0.04 percent were extremely accurate. Estimates
at or above the 0.08 level were accurate in 91 percent of the cases,
or as high as 94 percent if explanations for ten of the false positives
are accepted. Estimates at or above the 0.04 level (but below 0.08)
were accurate in 94 percent of the relevant cases.
Id. at 25.
Problems with the scientific validity of the San Diego study include,
but are not limited to, the following:
" Researchers did not observe or monitor the officers' administration
of the field sobriety testing battery at any time during the study.
" PBTs were used to aid in the arrest decisions, potentially
skewing the validity of the data.
" All of the officers in the study were retrained before the
study, possibly affecting the study's objectivity or validity regarding
normal officers in the field.
d. (§14.20) NHTSA SFST Protocol
A police officer must follow NHTSA's SFST protocol when administering
field sobriety tests because the scientific validity of these tests,
if any, is based entirely on accurate administration and scoring.
Even assuming that NHTSA's protocol is standardized and that its
validation studies are scientifically reliable, despite not having
been reviewed by peers in the outside scientific community, NHTSA
concedes that the validity of the tests is completely compromised
when the testing protocol is not followed to the letter by the arresting
officer.
Officers must learn to distinguish normal variations in the performance
of sober subjects from the aberrations that constitute impairment
clues. 1992 NHTSA Instructor Manual, 1-2. Further, officers administering
SFSTs at roadside are expected not to deviate from the SFST administrative
instructions described in the DWI Detection and Standardized Field
Sobriety Testing course. 1995 NHTSA Instructor Manual, VII-4.
DWI defense practitioners facing an officer administering SFSTs
that vary in any way from the NHTSA training should make extensive
use of the following passages in the NHTSA Manuals, which it found
necessary to emphasize in bold writing in the text:
IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:
THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER
THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT'S PERFORMANCE
THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE
IF ANY OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED,
THE VALIDITY IS COMPROMISED.
2002 NHTSA Student Manual, VIII-19.
Further, the NHTSA Instructor Manuals state: "THE SFSTs ARE
NOT AT ALL FLEXIBLE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY
AS OUTLINED IN THE COURSE." 1995 NHTSA Instructor Manual, at
10; 2002 NHTSA Instructor Manual, III-14.
See also the 1995 NHTSA Student Manual, which states: "[I]f
any of the standardized elements of the test are changed, their
validity will be threatened." 1995 NHTSA Student Manual, VIII
10; 1995 NHTSA Instructor Manual, VIII-8. Finally, the 1992 NHTSA
Instructor Manual states: "[T]he administrative procedures
are somewhat complicated and cannot be given from memory without
considerable practice." 1992 NHTSA Instructor Manual, at 25.
Defense counsel should anticipate that the state will often attempt
to counter the previous citations with the following from the 2002
NHTSA Instructor Manual:
The procedures outlined in this manual describe how the standardized
field sobriety tests (SFSTs) are to be administered under ideal
conditions. We recognize that the SFSTs will not always be administered
under ideal conditions in the field, because such conditions will
not always exist. Even when administered under less than ideal conditions,
they will generally 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 [sic] on the evidentiary
weight given to the results. However, this does not necessarily
make the SFSTs invalid.
2002 NHTSA Instructor Manual, Preface.
The context of this passage should be strongly emphasized. This
passage is clearly referring to slight variances in the conditions
in the field where the SFSTs are administered, not how they are
administered. It does not refer to any variances in the administration
or scoring of the SFSTs. NHTSA and caselaw cited throughout this
text are clear that any variances in the administration or scoring
of the SFSTs should render the tests invalid.
e. (§14.21) NHTSA SFST Purpose
The NHTSA SFST battery is made up of three divided attention tests.
These tests allegedly "simulate the divided attention characteristics
of driving" and "exercise the same mental and physical
capabilities that a person needs to drive safely." 2002 NHTSA
Student Manual, VII-2. The SFST battery is designed to require a
subject to demonstrate two or more of the following capabilities
simultaneously:
information processing;
short-term memory;
judgment and decision making;
balance;
steady, sure reactions;
clear vision;
small muscle control;
coordination of limbs.
Id. at VII-2-3.
f. (§14.22) Preliminary Advice to Clients Regarding Consenting
to Field Sobriety Testing
Before discussing NHTSA's standardized field sobriety testing battery,
preliminary advice to clients regarding whether they should ever
consent to field sobriety testing should be discussed. Defense counsel
confronted with a client requesting advice on whether to submit
to an officer's request to perform field sobriety tests in Missouri
should consider the following when making this determination.
A subject's refusal to take field sobriety tests can be used as
evidence of intoxication in Missouri. State v. Myers, 940 S.W.2d
64, 65 (Mo. App. S.D. 1997); Hockman v. Dir. of Revenue, 103 S.W.3d
382 (Mo. App. W.D. 2003). But field sobriety tests are not mandatory.
Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo. App. W.D. 1998);
Terry v. Dir. of Revenue, 14 S.W.3d 722 (Mo. App. W.D. 2000).
The client should be advised to consider whether the client's performance
on the test will be made to look worse than the refusal of these
voluntary tests. It is the opinion of many knowledgeable defense
attorneys around the country that SFSTs should always be refused
because the client will likely be deemed to have failed them when
the officer has enough indicia of alcohol consumption to request
the client to submit to the tests under Phases I and II of the officer's
training. This includes PBTs in the field, which are also voluntary
and not mandatory in Missouri. Justice v. Dir. of Revenue, 890 S.W.2d
728 (Mo. App. W.D. 1995) (a blood alcohol test administered with
a portable breath test is not a "test" within meaning
of implied consent statute). Note: The driver could be cited separately
for a refusal in this context in some states.
A serious caveat should be noted when counsel is determining whether
to give advice to refuse field sobriety testing. Should counsel
choose to advise a client to refuse SFSTs, a PBT, or both, it is
imperative that the client understand the limits and ramifications
of that advice. Great care must be exercised with regard to the
difference between a PBT and the chemical test the client will be
asked to submit to under Missouri's implied consent law, §
577.020, RSMo Supp. 2003, should the client be placed under arrest.
Vague or ambiguous advice by counsel regarding refusal of SFSTs,
a PBT, or both, could easily lead to the client having his or her
license suspended for unknowingly or unintentionally triggering
a refusal of a chemical test under the implied consent law after
being placed under arrest. See:
" § 577.020, RSMo Supp. 2003;
" Baker v. Dir. of Revenue, 945 S.W.2d 589 (Mo. App. E.D.
1997) (two pre-arrest breath alcohol tests given to driver using
portable breath analyzer to establish probable cause for arrest
did not constitute "tests" for purposes of implied consent
law; thus, driver's license could be revoked for his refusal to
submit to breath test following his arrest);
" Justice, 890 S.W.2d at 728 (blood alcohol test administered
with portable breath test is not a "test" within meaning
of implied consent statute).
This issue is especially important where chemical breath tests
after arrest are being more frequently administered at the scene
of the stop immediately following a PBT. When an officer requests
that a client submit to a PBT, and immediately thereafter requests
consent to a chemical test at the scene, after arrest and after
an implied-consent advisement, counsel's instructions must be unambiguous
to avoid unintended consequences. Vague advice to a client in this
context is malpractice. Chemical testing, implied consent, and refusals
are dealt with in Chapters 1, 5, and 7 of this deskbook.
2. General Field Sobriety Testing Caselaw
a. (§14.23) Admissibility of "Scientific Evidence"
of Field Sobriety Testing
To challenge the scientific evidence presented by the state in
the form of standardized field sobriety testing, it is important
to first review Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Before State Board of Registration for the Healing Arts v. McDonagh,
123 S.W.3d 146 (Mo. banc 2003), these two cases set forth the standards
that were used by Missouri courts for determining when a fact-finder
at trial may consider whether a scientific technique or theory is
sufficiently valid for admissibility in civil cases.
Before McDonagh, 123 S.W.3d 146, Missouri state courts followed
the Frye, 293 F. 1013, standard for determining whether a scientific
technique is admissible. Missouri courts appear to still follow
Frye in criminal cases. See State v. Davis, 814 S.W.2d 593 (Mo.
banc 1991); State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993),
overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo.
banc 1997). The Frye standard is whether a scientific principle
is generally accepted in the general field in which it belongs.
The Daubert, 509 U.S. 579, standard is a work in progress and has
not been used in Missouri except in federal court. But Daubert is
important to review because many courts around the country are determining
the admissibility of field sobriety testing and other "scientific"
evidence using this standard. In Daubert the Supreme Court took
the opportunity to review Federal Rule of Evidence 702, which provides:
"If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise." State ex rel. Romley
v. Fields, 35 P.3d 82, 87-88, n.5 (Ariz. Ct. App. 2001), provides
an excellent summary of Daubert:
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme
Court held that Frye's general acceptance requirement had been superseded
by the 1975 enactment of Federal Rule of Evidence 702 and rejected
Frye as the exclusive test for admitting expert scientific testimony
in federal cases. Instead, the Court held that Federal Rule 702
imposes a special obligation upon a trial judge as an evidentiary
"gatekeeper" to ensure that scientific evidence is not
only relevant but reliable. Id. at 592-93, 597, 113 S.Ct. 2786.
The reliability of scientific evidence is to be judged by its scientific
validity. Id. at 589 n. 9, 113 S.Ct. 2786. Under Daubert, the general
acceptance test is only one of several factors that a trial court
may consider in determining the reliability of a particular scientific
theory or technique. Id. at 592-94, 113 S.Ct. 2786. Six years later,
in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999), the Court held that Daubert's gatekeeping
obligation is not limited to "scientific" testimony but
also applies to "non-scientific" expert testimony. See
id. at 147-51, 119 S.Ct. 1167.
5In response to Daubert and the many cases applying Daubert, including
Kumho, Federal Rule of Evidence 702 was amended effective December
1, 2000, by adding three requirements for the admissibility of expert
testimony. As amended, Rule 702 now reads:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
(Emphasis added.) We note that the "reliable application"
requirement is a significant addition to Daubert ("The focus,
of course, must be solely on principles and methodology, not on
the conclusions that they generate." 509 U.S. at 595, 113 S.Ct.
2786.).
In McDonagh, 123 S.W.3d 146, the Supreme Court of Missouri emphasized
that the standards for admissibility of expert testimony in civil
cases in Missouri are exclusively set forth in § 490.065, now
RSMo 2000, and Missouri does not now follow either Frye, 293 F.
1013, or Daubert, 509 U.S. 579, in civil cases. Whether expert opinion
testimony satisfies the requirements of § 490.065 is a matter
of trial court discretion. Bailey v. Cameron Mut. Ins. Co., 122
S.W.3d 599, 603 (Mo. App. E.D. 2003); McGuire v. Seltsam, No. SC
85988 (Mo. banc July 1, 2004).
Section 490.065 provides:
1. In any civil action, if scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.
2. Testimony by such an expert witness in the form of an opinion
or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.
3. The facts or data in a particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to him at or before the hearing and must be of a type reasonably
relied upon by experts in the field in forming opinions or inferences
upon the subject and must be otherwise reasonably reliable.
4. If a reasonable foundation is laid, an expert may testify in
terms of opinion or inference and give the reasons therefor without
the use of hypothetical questions, unless the court believes the
use of a hypothetical question will make the expert's opinion more
understandable or of greater assistance to the jury due to the particular
facts of the case.
The Supreme Court of Missouri in McDonagh, 123 S.W.3d 146, decided
the following issues related to the admission of expert testimony
in Missouri courts in reviewing § 490.065:
1. The only relevant standard for evaluating the admissibility of
expert testimony in civil cases is section 490.065, R.S.Mo., reaffirming
the Missouri Supreme Court's prior decision in Lasky v. Union Electric
Co., 936 S.W.2d 797 (Mo. banc 1997). . . .
2. The same rule applies in administrative cases as a fundamental
rule of evidence.
3. This statutory standard is similar to Daubert v. Merrill [sic]
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Federal Rule
of Evidence (FRE) 702 with the important addition that section 490.065,
R.S.Mo., requires the expert to identify the relevant scientific
community or field in which the data and facts are accepted. The
trial court is then able to make an independent assessment of whether
the methodology is otherwise reasonably reliable.
4. The relevant field is to be determined by the standards in the
broader field in which the doctor has chosen to practice, not the
individual doctor's specific area of practice.
5. Nothing in section 490.065, R.S.Mo., requires the expert's conclusions
to be in conformity with the general medical consensus as that is
only one of the factors the trial court will use to determine its
reliability and admissibility.
6. Section 490.065, R.S.Mo., does not require the expert to use
data from controlled studies to support his or her opinion, but
rather allows for the fact that the expert may cite this information
or other reasonably reliable data to provide the judge with a basis
to determine the admissibility of the opinion testimony.
Joseph Callahan, Shaun P. Kenney, & Nancy R. Richards, Advanced
Personal Injury Procedures in Missouri for the Experienced Litigation
Paralegal, 102-03 (Institute for Paralegal Education 2004).
As is discussed in §§14.27-14.30 below, other jurisdictions
have limited or excluded the results of SFSTs as scientifically
unreliable using criteria similar to § 490.065, which are more
rigorous than Frye, 293 F. 1013.
While SFSTs, in particular the HGN test, were previously deemed
admissible in Missouri under Frye, 293 F. 1013-see Duffy v. Dir.
of Revenue, 966 S.W.2d 372, 378-79 (Mo. App. W.D. 1998); Hill, 865
S.W.2d 702, overruled on other grounds by Carson, 941 S.W.2d 518-it
is now clear that Missouri no longer follows Frye in civil cases.
As such, it appears the scientific reliability and admissibility
of the SFSTs are ripe for challenge under the standards as set forth
in § 490.065, newly interpreted by the Supreme Court in McDonagh,
123 S.W.3d 146.
b. Missouri Field Sobriety Cases
(1) (§14.24) Admissibility of a Driver's Refusal of SFSTs
In State v. Myers, 940 S.W.2d 64, 65 (Mo. App. S.D. 1997), the
court held that the defendant's refusal to perform SFSTs and to
submit to breath testing was admissible as evidence of intoxication
(citing State v. McCarty, 875 S.W.2d 622, 623-27 (Mo. App. S.D.
1994), § 577.010.1, now RSMo 2000, and § 577.041.1, now
RSMo Supp. 2003). The Myers holding that refusals of SFSTs are admissible
has been followed in Calicotte v. Director of Revenue, 20 S.W.3d
588, 593 (Mo. App. S.D. 2000), State v. Rose, 86 S.W.3d 90, 97 (Mo.
App. W.D. 2002), and Edmisten v. Director of Revenue, 92 S.W.3d
270, 274 (Mo. App. W.D. 2002).
Defense counsel should carefully review these cases, along with
the citations contained in them, being sure to make the appropriate
objections at trial to preserve the issue for appeal. In McCarty,
875 S.W.2d 622, the court held that the defendant's refusal to submit
to breath analysis was admissible as evidence of guilt in his prosecution
for DWI, relying on §§ 577.010.1 and 577.041.1.
Section 577.041.1 provides in relevant part:
1. If a person under arrest, or who has been stopped pursuant to
subdivision (2) or (3) of subsection 1 of section 577.020, refuses
upon the request of the officer to submit to any test allowed pursuant
to section 577.020, then none shall be given and evidence of the
refusal shall be admissible in a proceeding pursuant to section
565.024 or 565.060, RSMo, or section 577.010 or 577.012. The request
of the officer shall include the reasons of the officer for requesting
the person to submit to a test and also shall inform the person
that evidence of refusal to take the test may be used against such
person and that the person's license shall be immediately revoked
upon refusal to take the test. . . .
Section 577.020, RSMo Supp. 2003 (emphasis added), provides in
relevant part:
1. Any person who operates a motor vehicle upon the public highways
of this state shall be deemed to have given consent to, subject
to the provisions of sections 577.020 to 577.041, a chemical test
or tests of the person's breath, blood, saliva or urine for the
purpose of determining the alcohol or drug content of the person's
blood pursuant to the following circumstances.
. . .
2. The implied consent to submit to the chemical tests listed in
subsection 1 of this section shall be limited to not more than two
such tests arising from the same arrest, incident or charge.
3. Chemical analysis of the person's breath, blood, saliva, or urine
to be considered valid pursuant to the provisions of sections 577.020
to 577.041 shall be performed according to methods approved by the
state department of health and senior services by licensed medical
personnel or by a person possessing a valid permit issued by the
state department of health and senior services for this purpose.
In short, SFSTs are clearly not chemical tests, and §§
577.010.1, 577.041.1, and 577.020 do not deal at all with standardized
field sobriety testing-only with chemical testing. The court in
Rose, 86 S.W.3d 90, acknowledged that "because field sobriety
tests are not subject to regulations promulgated by the Department
of Health, the HGN test does not enjoy the same standing as chemical
testing of a driver's breath, blood, saliva, or urine." Rose,
86 S.W.3d at 101-02. Accordingly, the admission at trial of a driver's
refusal to submit to standardized field sobriety testing should
be vigorously challenged, with counsel taking the appropriate steps
to preserve the issue for appeal.
(2) (§14.25) Brown v. Director of Revenue
In Brown v. Director of Revenue, 85 S.W.3d 1 (Mo. banc 2002), the
Supreme Court of Missouri held that improperly administered SFSTs
must be disregarded, despite the Court upholding the revocation
of the driver in the case on the basis of the remainder of the officer's
observations. The Court noted in Brown:
The testimony of [the driver's] expert, Taylor, as well as [the
officer's] own testimony, provided substantial evidence to support
the trial court's determination that [the officer] improperly administered
all three tests and that, therefore, the test results may be disregarded
and not provide a basis for the probable cause determination.
Id. at 4.
See also Edmisten v. Director of Revenue, 92 S.W.3d 270, 274 (Mo.
App. W.D. 2002), in which the court refers in dicta to the holding
of Brown regarding the inadmissibility of improperly administered
field sobriety tests. It should be emphasized that an expert witness
was used in Brown.
(3) (§14.26) Missouri Horizontal Gaze Nystagmus (HGN) Cases
In State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993), overruled
on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997),
the court found that the HGN test meets the Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), standard of admissibility. Hill, 865
S.W.2d at 704; See also State v. Myers, 940 S.W.2d 64 (Mo. App.
S.D. 1997). Although the HGN test is admissible as circumstantial
evidence of intoxication upon presentation of adequate foundation
in a prosecution for a DWI offense, the test results of an HGN test
are inadmissible to establish that a driver's BAC was at, above,
or below a specific degree. Hill, 865 S.W.2d at 705; State v. Rose,
86 S.W.3d 90, 100 (Mo. App. W.D. 2002). To present an adequate foundation
for the admission of the HGN test, the state must show "1)
that the officer is adequately trained to administer such test and
render an opinion; and 2) that the test was properly administered."
See Rose, 86 S.W.3d at 98; Hill, 865 S.W.2d at 704; Duffy v. Dir.
of Revenue, 966 S.W.2d 372, 378-79 (Mo. App. W.D. 1998).
Hill, 865 S.W.2d 702, provides that adequate training on administering
and interpreting the HGN test requires a minimum of eight hours
of police training on the HGN. Hill, 865 S.W.2d at 704. Further,
for the HGN test to be properly administered, the state must show
that the following standards were met:
(1) that the test be conducted by requiring a subject to follow
an object such as a finger, pencil or pen with his eyes as the object
is moved laterally along a horizontal plane to the periphery of
the subject's vision, and (2) that the indicators be interpreted
and scored, one eye at a time, as follows: (a) the person administering
the test is to observe how smoothly a subject follows the object
as it is moved to the periphery of the subject's vision. Jerking
of the eyes rather than the ability to follow the object smoothly
indicates the influence of alcohol; (b) the person administering
the test is to observe whether or not a distinctive jerking occurs
in the eyes at the maximum point of deviation when the eye moves
to the far periphery of vision. Distinctive jerking is indicative
of the influence of alcohol; and (c) the person administering the
test is to observe the angle at which nystagmus occurs.
Id.
Hill was a criminal case, and it did not deal directly with the
admissibility of the HGN test as support for an officer's determination
of probable cause in the context of a civil administrative hearing.
Duffy, 966 S.W.2d 372, is the civil equivalent of Hill in Missouri.
In Duffy the court held that the HGN test is admissible as a factor
in the probable cause determination in the civil context provided
that the officer administering the HGN test has the "ability
to properly score and interpret the result." Duffy, 966 S.W.2d
at 378. Duffy also restated the elements listed in Hill to lay a
proper foundation for the admission of the HGN test for use in determining
probable cause in the civil context. Id.
In Rose, 86 S.W.3d 90, the court addressed the driver's challenge
to the officer's testimony at trial that: "Six scores, in my
experience, they've always been above the legal limit [of] .10.
I've never had one that scored six below." Rose, 86 S.W.3d
at 99.
In Rose, 86 S.W.3d 90, the defense objected to lack of sufficient
foundation being laid regarding the officer's ability to correlate
the HGN results to the driver's specific BAC level, despite the
officer's 20 hours of training in the HGN. The court in Rose held
that, despite the fact that the officer "did not specifically
state an opinion that [the driver's] BAC would have registered at
or above .10%, his testimony created a remarkable inference that
such was the case . . . ." Id. at 100. The court further held
that the testimony should have been inadmissible because HGN test
results are inadmissible to establish that a driver's BAC is at,
above, or below a specific degree. Id.; Hill, 865 S.W.2d at 705.
Trial courts, attorneys, witnesses and other relevant parties in
our justice system, are now on notice that, unless a foundation
is laid that establishes the witness's ability to correlate an HGN
score with a BAC level, such testimony is unacceptable and shall
be inadmissible. For us to condone such a practice would be akin
to opening Pandora's box and, consequently, would alleviate, if
not eliminate, any need for law enforcement officers to administer
a chemical analysis of a driver's blood, breath, urine, or saliva.
Rose, 86 S.W.3d at 102.
c. (§14.27) Other Jurisdictions' Field Sobriety Cases
Recent cases decided throughout the United States have consistently
held that SFSTs must be administered exactly as specified in the
NHTSA SFST training curriculum; otherwise, they are both inadmissible
and inherently unreliable in court proceedings, or may only be admissible
for limited purposes.
(1) (§14.28) State v. Homan
In State v. Homan, 732 N.E.2d 952 (Ohio 2000), the officer's failure
to follow his NHTSA training in administering field sobriety exercises
was a factor in determining the admissibility of the field sobriety
tests. The Supreme Court of Ohio held that, unless the SFSTs are
administered in strict compliance with NHTSA guidelines, the tests
are too unreliable to be considered by the court in deciding whether
the officer had probable cause to arrest. Further, when field sobriety
testing is conducted in a manner that departs from established methods
and procedures, the results are inherently unreliable. Homan, 732
N.E.2d at 955. The court did note, however, that "probable
cause to arrest does not necessarily have to be based, in whole
or in part, upon a suspect's poor performance on one or more of
these tests. The totality of the facts and circumstances can support
a finding of probable cause to arrest even where no field sobriety
tests were administered or where, as here, the test results must
be excluded for lack of strict compliance." Id. at 957.
(2) (§14.29) United States v. Horn
Like the court in State v. Homan, 732 N.E.2d 952 (Ohio 2000), the
court in United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002),
dealt with the issue of the extent to which SFSTs may be used under
the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
criteria as circumstantial evidence for determining probable cause
to arrest, for determining the alcohol impairment of the driver,
or to estimate a specific BAC score based on the driver's performance
on the SFSTs.
The Horn court first held that the results of "properly conducted
SFSTs may be considered to determine whether probable cause exists
to charge a driver with driving while intoxicated ("DWI")
or under the influence of alcohol ("DUI")," Horn,
185 F. Supp. 2d at 532-33, and the driver conceded this point at
trial. The prosecution also conceded that even properly administered
SFSTs could not be used to establish a specific BAC level. Id.
The Horn court was then left to decide whether properly administered
SFSTs could be used to provide circumstantial evidence of impairment
in the driver. The defense's expert witnesses testified that the
SFSTs were unreliable in accurately providing circumstantial evidence
of alcohol impairment, and they were highly critical of the NHTSA
field sobriety studies, which allegedly validated the test battery.
The Horn court noted numerous flaws in NHTSA's methodology, and,
in dicta, criticized the fact that none of NHTSA's validation studies
had been subject to peer review. The court took particular note
of Dr. Spurgeon Cole's critique of NHTSA's "validation"
of SFSTs being used to provide circumstantial evidence of impairment
as a result of alcohol consumption:
(1) 47% of the subjects tested in the 1977 NHTSA laboratory study
who would have been arrested by the testing officers for driving
while intoxicated (BAC of 0.10 or greater) actually had BACs below
0.10;
(2) in the 1981 Final Report, 32% of the participants in the lab
study were incorrectly judged by the testing officers as having
BACs of 0.10 or greater; and
(3) the accepted reliability coefficient for standardized clinical
tests is .85 or higher, yet the reliability coefficients for the
SFSTs, as reported in the NHTSA studies, ranged from .61 to .72
for the individual tests and .77 for individuals that were tested
on two different occasions while dosed to the exact same BAC. More
alarmingly, inter-rater reliability rates (where different officers
score each subject) ranged from .34 to .60, with an over-all rate
of .57.
Dr. Cole theorized that the SFSTs, particularly the WAT and OLS
tests, required subjects to perform unfamiliar, unpracticed motions
and noted that a very few miscues result in a conclusion that the
subject failed and had a BAC in excess of 0.10. His hypothesis was
that individuals could be classified as intoxicated/impaired as
a result of unfamiliarity with the test, rather than actual BAC.
He tested this hypothesis by videotaping twenty-one completely sober
individuals performing either "normal-abilities tests"
(such as reciting their addresses or phone numbers or walking in
a normal manner) or the WAT and OLS tests. The results of the study
were that 46% of the officers that viewed the videotape of the sober
individuals performing the SFSTs rated the subjects as having had
too much to drink, as compared to only 15% reaching this decision
after seeing the videotape of the subjects performing the normal-abilities
tests.
Horn, 185 F. Supp. 2d at 539-40 (citations omitted).
While the court noted that "[a] police officer trained and
qualified to perform SFSTs may testify with respect to his or her
observations of a subject's performance of these tests," and
that the results are "admissible as circumstantial evidence
that the defendant was driving while intoxicated or under the influence,"
the court specifically held that "the officer may not use value-added
descriptive language to characterize the subject's performance of
the SFSTs, such as saying that the subject 'failed the test' or
'exhibited' a certain number of 'standardized clues' during the
test." Id. at 533.
(3) (§14.30) State v. Lasworth
In State v. Lasworth, 42 P.3d 844 (N.M. Ct. App. 2001), the court
assessed whether the HGN test was admissible either as evidence
of impairment or to show that a driver was above or below the statutory
blood alcohol limit using the Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), criteria.
In holding that the HGN test does not meet sufficient evidentiary
standards to be admissible in a prosecution for driving under the
influence, the court held inadmissible the testimony of the arresting
officer that "he observed six cues, the maximum possible under
the standardized HGN [S]FST," and that "based on his training
and experience, the presence of all six HGN cues indicated Defendant
was 'under the influence' of alcohol or another central nervous
system depressant, an inhalant, or PCP at the time of the test,"
Lasworth, 42 P.3d at 846, as a proper foundation had not been presented
by the state under Daubert, 509 U.S. 579.
To lay a proper foundation for the admission of this type of officer
testimony, the state must show that the HGN test is "a scientifically
valid means of discriminating between BACs below 0.08 percent and
those at or above 0.08 percent" and "that a BAC at or
above 0.08 percent correlates with diminishment of Defendant's mental
or physical driving skills." Id. at 848.
Significantly, the Lasworth, 42 P.3d 844, court held that Dr. Marcelline
Burns, the state's expert witness and one of the main proponents
of NHTSA's field sobriety testing validation studies, was not qualified
as an expert to testify whether the HGN test accurately measures
the amount of alcohol allegedly consumed by a subject. Missouri
practitioners should note that Dr. Burns was the State of Missouri's
expert witness in State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993),
overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo.
banc 1997), where her testimony was admitted using Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), criteria.
3. NHTSA-Approved SFST Battery
a. (§14.31) HGN Test
NHTSA alleges that the HGN test is the most reliable field sobriety
test when properly administered, 2002 NHTSA Student Manual, VII-5,
being 77% reliable. 1995 NHTSA Instructor Manual, XV-4; 2000 NHTSA
Instructor Manual, VIII-11-12; 2002 NHTSA Student Manual, VII-6,
VIII-1. Gaze nystagmus occurs as the eyes move from the center position.
NHTSA defines gaze nystagmus as an "involuntary jerking of
the eyes." 2002 NHTSA Student Manual, VIII-3. Dr. Joseph Citron,
M.D., a noted expert in SFSTs, defined gaze nystagmus as a "lack
of fixation when someone looks to the side" at an NHTSA Instructor
course in March 2004. See also FLEM K. WHITED & DONALD H. NICHOLS,
DRINKING/DRIVING LITIGATION: CRIMINAL AND CIVIL § 17:8 (2nd
ed. 2003) ("a jerking of the eyes that occurs as they gaze
to the side").
There are three types of gaze nystagmus:
1. HGN-an involuntary jerking of the eyes as they gaze toward the
side
2. Vertical gaze nystagmus (VGN)-an involuntary jerking of the eyes
as they gaze upward
3. Resting nystagmus-an involuntary jerking of the eyes as they
look straight ahead
It should be noted that nystagmus is a natural, normal phenomenon.
1992 NHTSA Student Manual, VIII-11; 1992 NHTSA Instructor Manual,
VIII-8. Nystagmus is present in all people, and when gaze nystagmus
is noticeable, it is exaggerated by the presence of a central nervous
system depressant in the person's system. In other words, alcohol
does not "cause" nystagmus, despite it being a depressant,
and the HGN test is not alcohol-specific. 1992 NHTSA Student Manual,
VIII-11; 2000 NHTSA Student Manual, VIII-8; 2000 NHTSA Instructor
Manual, VIII-6; see also Troy McKinney, Challenging and Excluding
HGN Tests, THE CHAMPION (April 2002). Note: The 2002 NHTSA Student
Manual states that "alcohol and certain other drugs cause horizontal
gaze nystagmus." 2002 NHTSA Student Manual, VIII-3. But the
general scientific community, NHTSA's validation research, and the
1995 and 2000 versions of the NHTSA manuals indicate otherwise:
"[A]lcohol and certain other drugs do not cause this phenomenon,
they merely exaggerate or magnify it." 1995 NHTSA Student Manual,
VIII 12; 2000 NHTSA Student Manual, VIII-3.
Nystagmus in its various forms is often exaggerated by nonalcoholic
depressants or other factors besides alcohol intoxication. Whether
the nystagmus is exaggerated by alcohol or another depressant, the
involuntary jerking of the eyes becomes more pronounced as the amount
of the depressant increases in the subject's bloodstream. 1995 NHTSA
Instructor Manual, XV-1; 2000 NHTSA Instructor Manual, VIII-5. When
alcohol, or any other depressant, is increased in the subject's
bloodstream, nystagmus will become more readily noticeable the more
alcohol, or other depressant, the subject consumes. NHTSA concedes
that the HGN is not alcohol specific: "Nystagmus may be due
to causes other than alcohol. These other causes include seizure
medications and some other drugs. A large disparity between the
performance of the right and left eye may indicate a medical condition."
2002 NHTSA Student Manual, VIII 8; 2002 NHTSA Instructor Manual,
VIII-5, VIII 53.
Three to four percent of the general population has nystagmus at
all times for reasons other than the consumption of alcohol. NHTSA
concedes: "[A] small percentage of individuals may exhibit
a natural jerkiness of their eyes that can appear similar to HGN,"
1992 NHTSA Instructor Manual, VIII-54, "due to certain pathological
disorders." 2002 NHTSA Instructor Manual, VIII 54. NHTSA also
admits that nystagmus can be the result of brain damage or illness,
or of unknown etiology. Marcelline Burns & Herbert Moskowitz,
NHTSA, U.S. Department of Transportation, Psychophysical Tests for
DWI Arrest, DOT HS 802-424 (June 1977).
Courts around the country have taken judicial notice of nonalcohol-related
items that exaggerate the visibility of nystagmus in individuals.
In Schultz v. State, 664 A.2d 60, 77 (Md. Ct. Spec. App. 1995),
the court noted many possible causes of HGN that are unrelated to
alcohol:
(1) problems with the inner ear labyrinth; (2) irrigating the ears
with warm or cold water under peculiar weather conditions; (3) influenza;
(4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis;
(8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis;
(11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy;
(14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye
strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in
atmospheric pressure; (21) consumption of excessive amounts of caffeine;
(22) excessive exposure to nicotine; (23) aspirin; (24) circadian
rhythms; (25) acute trauma to the head; (26) chronic trauma to the
head; (27) some prescription drugs, tranquilizers, pain medications,
anti-convulsants; (28) barbiturates; (29) disorders of the vestibular
apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity;
(32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning
fumes, carbon monoxide; (34) [sic] extreme chilling; (35) eye muscle
imbalance; (36) lesions; (37) continuous movement of the visual
field past the eyes . . .; (38) antihistamine use.
Schultz, 664 A.2d at 77. Defense counsel should take note if any
of these nonalcoholic causes of horizontal nystagmus are present
in the client and use them accordingly.
There are also 46 types of nystagmus in individuals, separate from
horizontal nystagmus:
(1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced,
somatosensory); (4) Associated (induced, Stransky's); (5) Audio
kinetic (induced); (6) Bartel's (induced); (7) Brun's; (8) Centripetal;
(9) Cervical (neck torsion, vestibular-basilar artery insufficiency);
(10) Circular/Elliptic/Oblique (alternating windmill, circumduction,
diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital
(fixation, hereditary); (12) Convergence; (13) Convergence-evoked;
(14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced
(barbiturate, bow tie, induced); (17) Epileptic (ictal); (18) Flash
induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic,
seducible, setting-in); (20) Horizontal; (21) Induced (provoked);
(22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent
(monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid;
(27) Miner's (occupational); (28) Muscle-Paretic (myasthenic); (29)
Optokinetic (induced, optomotor, panoramic, railway, sigma); (30)
Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic);
(31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating;
(33) Physiologic (end-point, fatigue); (34) Pursuit After-induced;
(35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38)
Reflex (Baer's); (39) See-Saw; (40) Somatosensory; (41) Spontaneous;
(42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat;
(46) Vertical; (47) Vestibular (ageotropic, geotropic, Bechterew's,
caloric, compensatory, electrical/faradic/galvanic, labyrinthine,
pneumatic/compression, positional/alcohol, pseudo caloric.
L.F. Dell'Osso, Nystagmus, Saccadic Intrusions/Oscillations and
Oscillopsia, 3 CURRENT NEURO-OPTHALMOLOGY 147 (1989); see also FLEM
K. WHITED & DONALD H. NICHOLS, DRINKING LITIGATION: CRIMINAL
AND CIVIL § 17:1-17:3 (2nd ed. 2003).
The conditions a subject is facing in the field while attempting
to perform the HGN test must not be overlooked. Visual or other
distractions may impede the test. 1995 NHTSA Instructor Manual,
VIII-66; 2000 NHTSA Instructor Manual, VIII-56. Wind, dust, or other
eye irritants may interfere with performance on the HGN test. 1995
NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor Manual,
VIII-56; 2002 NHTSA Student Manual, VIII-15. The officer must keep
the subject away from the traffic passing in close proximity. 2002
NHTSA Student Manual, VIII-15. It should also be emphasized that
an HGN test may not be administered to someone who is lying down.
2002 NHTSA Instructor Manual, VIII 7. This is especially important
to note in accident cases.
Finally, the officer must always face the subject away from rotating
lights or flashing or strobe lights while performing
the HGN test to avoid stimulation of artificial jerking of the eyes
from the light. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA
Instructor Manual, VIII-56; 2002 NHTSA Student Manual, VIII-15.
The jerking of the eyes stimulated by
this strobe effect is referred to as optokinetic nystagmus. At a
recent standardized field sobriety testing seminar, this author
observed noted impaired driving consultants, Lance Platt and Troy
Walden, of Walden, Platt & Associates, create the effect of
optokinetic nystagmus by simulating the rotating lights of a police
vehicle with a disco ball. The subject had consumed no alcohol.
Each time the subject focused on the flashing lights behind the
person administering the test, as opposed to focusing on the stimulus
right in front of him, the subject's eyes began to noticeably jerk
in a very pronounced manner. Defense counsel should thoroughly review
material on optokinetic nystagmus when it can be determined that
a driver was facing flashing lights while performing the HGN test.
Note: Before the 2002 edition of the NHTSA Student Manual, the manuals
did not mention rotating lights or traffic passing in close proximity.
They only stated that flashing or strobe lights may interfere with
the HGN test.
A person administering the HGN test uses a stimulus in a series
of passes in front of the subject's eyes, looking for an involuntary
jerking as they gaze toward the side as a sign of alcohol intoxication.
"The stimulus may be the tip of a pen or penlight, an eraser
on a pencil or [the officer's] finger tip, whichever contrasts with
the background." 2002 NHTSA Student Manual, VII-5; 2002 Instructor
Manual, VII-7. It is best to use a stimulus that has a contrasting
tip or focal point. 2002 NHTSA Instructor Manual, VIII 15. The HGN
test measures this involuntary jerking of the eyes with three clues:
1. Lack of smooth pursuit
2. Distinct nystagmus at maximum deviation
3. Onset of nystagmus prior to 45 degrees
Each of these three clues are distinct steps that must be tested
for by the officer administering the HGN test for it to be valid.
The maximum number of clues that may appear in any one eye is three.
2002 NHTSA Instructor Manual, VIII-14. The maximum total number
of clues for any subject is six, i.e., the three clues above, in
each eye. 2002 NHTSA Student Manual, VII-6; 2002 NHTSA Instructor
Manual, VIII-14. Any four observed clues in the eyes of the subject
will result in a failed HGN test. 2002 NHTSA Student Manual, VII-6.
NHTSA's original validation research indicates it is likely that
a subject's BAC is above 0.10% when four or more clues are present
for the HGN. NHTSA alleges that this test is 77% accurate when four
or more clues are present. 2002 NHTSA Student Manual, VII-6, VIII-1.
See Parrish v. Dir. of Revenue, 11 S.W.3d 652 (Mo. App. E.D.1999)
(score of four or more on the HGN test, which gives one point for
eye movement indicative of alcohol influence for each of three tests
for each eye, is an indication that a subject is intoxicated).
For the first clue, lack of smooth pursuit, the officer is determining
whether the subject's eyes can smoothly follow a moving stimulus
or whether they jerk or bounce. 2002 NHTSA Student Manual, VIII
5. For the second clue, distinct nystagmus at maximum deviation,
the stimulus is moved to the extreme side of each of the subject's
eye's vision ("maximum deviation"), where the stimulus
is held to observe any distinct jerking. Id. The third clue, onset
of nystagmus prior to 45 degrees, measures the angle at which the
eye begins jerking to determine alcohol impairment. Id.
(1) (§14.32) HGN Test Pretest and Instructions
Before checking for the three clues of the HGN test, the officer
must conduct a pretest to determine if the subject is an eligible
candidate for the test and give the subject proper instructions
on how the test will be administered. First, the officer must instruct
the subject to remove glasses, if any. 2002 NHTSA Student Manual,
VIII-6, VIII-14; 2002 NHTSA Instructor Manual, VII-7, VIII-12. Glasses
impede the subject's peripheral vision. 2002 NHTSA Instructor Manual,
VIII-12. NHTSA originally instructed the officer to inquire about
and note if contact lenses are being worn by the subject. 1995 NHTSA
Instructor Manual, VIII-13, 15. The 2000 and subsequent NHTSA manuals
do not mention contact lenses.
The officer should verbally instruct the person to stand feet together
and hands at sides. 1995 NHTSA Instructor Manual, VIII-17; 2000
NHTSA Instructor Manual, VIII-13. Further, subjects should be instructed
that their eyes are going to be checked, that they should keep their
head still and follow the moving stimulus with their eyes only,
and that they should keep following the stimulus with their eyes
until they are told to stop. 2002 NHTSA Student Manual, VIII-6.
The officer should ask the person if they understand the instructions
and is not to continue with administering the test until the person
indicates the understanding of what is required. As mentioned, the
HGN test may not be properly administered to someone who is lying
down. 2002 NHTSA Instructor Manual, VIII-7. By the very nature of
the instructions for the test, the subject must be standing or the
test is invalid.
For the pretest, the officer must also check for equal tracking
in both eyes-i.e., do the eyes follow an object together?-and pupil
size before checking for the three clues to make sure the subject
is an eligible candidate for the HGN test. 2002 NHTSA Student Manual,
VIII-5. If the eyes do not track together, it could indicate a medical
disorder, injury, or blindness, id. at VIII-6, and the subject is
not an eligible candidate for the HGN test. If the pupils are different
sizes, it is a strong indication of a head injury, also precluding
the subject from being a candidate for the test. Id.
For each pass of the stimulus during the test, the officer is to
"[p]osition the stimulus approximately 12-15 inches from the
suspect's nose and slightly above eye level." 2002 NHTSA Student
Manual, VIII-6, X-3; 2002 NHTSA Instructor Manual, VII-7, VIII-12.
For the pretest equal-tracking passes, the officer is to rapidly
move the stimulus from the center of the subject's face to the far
left, to the far right, and back to center again. 2002 NHTSA Instructor
Manual, VIII 12. The equal-tracking pass or passes should take at
least two seconds to administer.
(2) (§14.33) Lack of Smooth Pursuit
To be NHTSA compliant, the officer must check each of the subject's
eyes at least two times for lack of smooth pursuit. 2002 NHTSA Student
Manual, VIII-7. The officer must begin by checking the subject's
left eye, 2002 NHTSA Instructor Manual, VII-7; VIII-13, moving the
stimulus from the center of the subject's face to the officer's
right. The stimulus is to be moved smoothly, 2002 NHTSA Instructor
Manual, VIII-17, at a speed that requires two seconds to take the
subject's left eye out as far as it will go with the stimulus without
the head moving. 2002 NHTSA Instructor Manual, VIII-17-18. Once
the stimulus is taken out as far to the officer's right as it will
go, the stimulus should be returned again to center, also in a smooth
motion at a speed that requires two seconds to return the subject's
left eye to center. The stimulus should be moved at a speed of "20
degrees per second," i.e., two seconds out from center to side,
and two seconds back from side to center. 1992 NHTSA Instructor
Manual, VIII-22; 1995 NHTSA Instructor Manual, VIII-23-24; 2000
NHTSA Instructor Manual, VIII 18; 2002 NHTSA Student Manual VIII-7.
The officer should then repeat the same process in reverse for
the right eye: moving the stimulus smoothly from the center of the
subject's face to the officer's left at a speed that requires two
seconds to take the subject's right eye out as far as it will go
with the stimulus without the head moving, then returning again
to center in a smooth motion and at a speed that requires two seconds
to return the subject's right eye to center. 2002 NHTSA Student
Manual VIII-7. The stimulus should be moved at a speed of "20
degrees per second" for the right eye, i.e., two seconds out
from center to side, and two seconds back from side to center. 1992
NHTSA Instructor Manual, VIII-22; 1995 NHTSA Instructor Manual,
VIII-23-24; 2000 NHTSA Instructor Manual, VIII 18; 2002 NHTSA Student
Manual VIII-7.
This entire process must be repeated for each eye for the first
clue of lack of smooth pursuit. 1995 NHTSA Instructor Manual, VIII-21,
23; 2002 NHTSA Student Manual, VIII-7. If a jerking is noticed while
testing for this clue on either pass of either eye, a clue is scored
for that eye. Because each motion for this clue requires two seconds
for testing, the officer must take at least 16 seconds to complete
this portion of the HGN test.
Some common mistakes for testing for lack of smooth pursuit include:
" holding the stimulus too close or too far away from the
subject;
" not holding the stimulus slightly above eye level throughout
the passes;
" moving the stimulus too quickly or too slowly;
" not using a smooth motion, which may induce artificial jerking
of the subject's eyes;
" failing to move the stimulus far enough to the side; or
" arcing the path of the stimulus upward or downward during
any pass, causing the stimulus to vary from "slightly above
eye level."
1992 NHTSA Instructor Manual, VIII-24; 1995 NHTSA Instructor Manual,
VIII-6, X-3; 2000 NHTSA Instructor Manual, VIII-20-21; 2002 NHTSA
Instructor Manual, VIII 20.
(3) (§14.34) Distinct Nystagmus at Maximum Deviation
To be NHTSA compliant, the officer must also check each of the
subject's eyes at least two times for distinct nystagmus at maximum
deviation. 2002 NHTSA Student Manual, VIII 7. The officer should
first check the subject's left eye, moving the stimulus from the
center of the subject's face to the officer's extreme right, holding
the subject's left eye at maximum deviation, i.e., as far to the
side as possible with no white showing in the corner of subject's
eyeball. Id.
The officer must hold the eyeball at maximum deviation for a minimum
of four seconds, observing the eyeball for distinct jerking, i.e.,
both distinct and obvious. 2002 NHTSA Instructor Manual, VIII-22.
It is vital that the stimulus be held at maximum deviation for the
required time because many sober people will exhibit nystagmus at
maximum deviation if the stimulus is held for less than four seconds.
2000 NHTSA Instructor Manual, VIII-23, XV-1; 2002 NHTSA Instructor
Manual, VIII-22. See also 1992 NHTSA Instructor Manual, VIII 25
("You cannot simply hold the eye to the side for an instant
and expect to observe distinct nystagmus."). It is also important
to note that the subject's eye cannot be held too long at maximum
deviation because fatigue nystagmus will be evident in many sober
individuals if the eye is held at maximum deviation for more than
30 seconds. 2002 NHTSA Student Manual, VIII-7.
The officer should repeat the same procedure on the right eye and
then check for the clue a second time on both eyes. Id.
Testing each eye for the second clue of distinct nystagmus at maximum
deviation requires that the officer must take 16 seconds, at the
very least, by actually holding the stimulus at maximum deviation
for the full 16 seconds (4 seconds, 2 times, each eye). Defense
counsel should note that, because the NHTSA protocol repeatedly
instructs the officer to not vary the speed of the stimulus, because
any variance in the speed at which the stimulus is moved could artificially
create the appearance of nystagmus, time should also be factored
in each time the officer moves the stimulus to maximum deviation
in addition to the 16 seconds required to hold the stimulus at maximum
deviation for a valid test.
Some common mistakes an officer makes when testing for nystagmus
at maximum deviation include:
" holding the stimulus too close or too far away from the
subject;
" moving the stimulus too quickly or too slowly;
" not using a smooth motion, which may induce artificial jerking
of the subject's eyes;
" failing to move the stimulus far enough to the side to bring
the eye to maximum deviation;
" "some white still showing" while attempting to
place the eye at maximum deviation with the stimulus, meaning the
stimulus is likely not actually at maximum deviation; and
" not holding the eye at maximum deviation for at least four
seconds.
1992 NHTSA Instructor Manual, VIII-27; 1995 NHTSA Instructor Manual,
VIII-25, 29; 2000 NHTSA Instructor Manual, VIII-20-21, 24; 2002
NHTSA Instructor Manual, VIII-20.
(4) (§14.35) Onset of Nystagmus Prior to
45 Degrees
The angle of onset of nystagmus is the point at which the eye is
first seen jerking. 2002 NHTSA Instructor Manual, VIII-24. "Generally
speaking, the higher the BAC, the sooner the jerking will start
as the eye moves toward the side." Id. To be NHTSA compliant,
the officer must check each of the subject's eyes at least two times
for the third clue of onset of nystagmus prior to 45 degrees. 2002
NHTSA Student Manual, VIII-7. The officer must begin by checking
the subject's left eye, moving the stimulus from the center of the
subject's face to the officer's right. Id. The stimulus is to be
moved smoothly, at a speed that requires four seconds to take the
stimulus from center to the edge of the subject's left shoulder.
Id. The officer is to watch for any jerking at any time during the
motion between center and the edge of the subject's shoulder, stopping
the stimulus immediately if jerking is observed and holding the
stimulus in place to verify that the jerking continues. Id; 2002
NHTSA Instructor Manual, VIII-27. See also 1992 NHTSA Instructor
Manual, VIII-29 ("it is necessary to move the stimulus slowly
to identify the point at which the eye begins to jerk."). "If
the suspect's eyes start jerking before they reach 45 degrees"
(edge of shoulder), "check to see that some white of the eye
is still showing on the side closest to the ear. If no white of
the eye is showing, you either have taken the eye too far to the
side (that is more than 45 degrees) or the person has unusual eyes
that will not deviate very far to the side." 2002 NHTSA Student
Manual, VIII-7; 2002 NHTSA Instructor Manual, VIII-27.
The officer should repeat the same procedure on the right eye and
then check for the clue a second time on both eyes. 2002 NHTSA Student
Manual, VIII-7.
As with testing for distinct nystagmus at maximum deviation, testing
each eye for onset of nystagmus prior to 45 degrees requires that
the officer take 16 seconds at the very least to complete this portion
of the HGN test, by actually taking 4 seconds 2 times for each of
the subject's 2 eyes. This does not take into account any time when
the officer is specifically instructed to "stop and verify
that the jerking continues" when the jerking of the subject's
eyeballs is observed, if any. In other words, a test for this clue
that only takes 16 seconds is one in which no nystagmus has been
properly observed, even if it allegedly exists. Defense counsel
needs to examine the officer carefully regarding the officer's observations
and factor in the appropriate time according to what the officer
allegedly observed. When nystagmus was allegedly observed and the
appropriate stop was not made by the officer to observe the jerking,
the testing of this clue is not NHTSA compliant, and there is not
a valid test.
Some common mistakes officers make while testing for onset of nystagmus
prior to 45 degrees are:
" moving the stimulus too quickly by not taking the full four
seconds to move the stimulus from the center to the subject's shoulder;
" not stopping the stimulus to verify any observed jerking
in the eye;
" failing to check for white in the corner of the eye on the
side of the eye closest to the ear to verify that the stimulus has
not been taken past 45 degrees;
" failing to check alignment with the shoulder; and
" stopping the stimulus on any pass of this clue short of 45
degrees.
2000 NHTSA Instructor Manual, VIII-32; 2002 NHTSA Instructor Manual,
VIII-31.
(5) (§14.36) Vertical Gaze Nystagmus (VGN)
After the HGN test is administered, officers often make a pass
or passes of the subject's eyes with a stimulus checking for vertical
gaze nystagmus (VGN), which is an involuntary jerking as the eyes
gaze upward, 2002 NHTSA Instructor Manual, VII-8, often as a result
of the impairment of certain drugs other than alcohol, such as phencyclidine
(PCP) or high doses of central nervous system depressants or inhalants,
1992 NHTSA Instructor Manual, VIII-19; 2002 NHTSA Student Manual,
VIII-4, 8 ("D.I.P."-depressants, inhalants, PCP). This
test is often done for officer safety if the subject appears erratic
or dangerous. It should first be noted that, while vertical nystagmus
can be present because of extremely high doses of alcohol, 2002
NHTSA Instructor Manual, VIII-9, VGN was not examined in the original
research that led to the alleged validation of the SFSTs. 2002 NHTSA
Instructor Manual, VII-8; VIII-32. Further, when VGN is present
and HGN is not, it could be because of a medical condition. 2002
NHTSA Instructor Manual, VIII 10. It should also be emphasized that
any pass or passes testing for VGN are not a part of the HGN test
and cannot be counted as passes testing for the three clues the
officer is looking for during the HGN test.
NHTSA's procedures for administering a pass or passes testing for
VGN are:
1. Position the stimulus horizontally, about 12-15 inches in front
of the subject's nose.
2. Instruct the subject to hold the head still, and follow the object
with the eyes only.
3. Raise the object until the subject's eyes are elevated as far
as possible.
4. Hold for approximately four seconds.
5. Watch closely for evidence of jerking.
2002 NHTSA Student Manual, VIII-8; 2002 NHTSA Instructor Manual,
VIII-32-33.
When attempting to invalidate the administration of an HGN test
while examining an officer, defense counsel should ask the officer
if a VGN test was conducted. Officers will often testify that certain
passes were allegedly testing for two clues at once when the number
of total passes has been challenged as invalid. If the officer indicates
that a VGN test was performed, counsel should commit the officer
to how many passes were conducted for VGN and deduct those passes
from the passes allegedly testing for HGN.
b. (§14.37) Walk-and-Turn (WAT) Test
As a preliminary matter, it should be noted that NHTSA acknowledges
that the test criteria for the WAT is not necessarily valid for
all individuals. V. Tharp, Marcelline Burns & Herbert Moskowitz,
U.S. Department of Transportation, NHTSA, Development and Field
Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864 (March
1981), at 4, available at www.ndaa-apri.org/pdf/test_dv2.pdf; 1995
NHTSA Instructor Manual, VIII-63; 2000 NHTSA Instructor Manual,
VIII-52-53, 59. The WAT test should be conducted on a reasonably
dry, hard, level, nonslippery surface. Development and Field Test
of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 5; 2002
NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-34.
Note: The 1995 edition of the NHTSA Manuals did not use the word
"reasonably" in describing the surface to be used for
the WAT test, only stating that "reasonably safe conditions"
should be utilized. 1995 NHTSA Student Manual, VIII-21.
If these conditions cannot be met roadside, the subject should
be asked to perform the WAT test elsewhere, Development and Field
Test of Psychophysical Tests for DWI Arrests, DOT HS 805-864, at
5; 1995 NHTSA Instructor Manual, VIII 41; 2000 NHTSA Instructor
Manual, VIII-36, or only to perform the HGN test, 1995 NHTSA Instructor
Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII 36. NHTSA's
validation studies also showed that certain individuals had difficulty
performing the WAT test when sober, including people:
" over 65 years of age;
" over 50 pounds overweight;
" with back, leg, or middle ear problems; and
" with high-heeled shoes over two inches in height.
Development and Field Test of Psychophysical Tests for DWI Arrest,
DOT HS 805 864, at 5; 2002 NHTSA Instructor Manual, VIII-52.
People who cannot see out of one eye or who have monocular vision
or poor depth perception also had an extremely difficult time with
the WAT test in the validation studies-even when sober. Development
and Field Test of Psychophysical Tests for DWI Arrest, DOT HS 805
864, at 4; 1992 NHTSA Student Manual, VIII-18; 1995 NHTSA Student
Manual, VIII-21.
The 1992 NHTSA Manuals originally indicated that the WAT test is
not valid for subjects age 60 and over, 1992 NHTSA Instructor Manual,
VIII-54; 1992 NHTSA Student Manual VIII 18, while the 1995 NHTSA
Manuals indicate that the WAT test is not valid for subjects age
65 and over, and these subjects should only be requested to perform
the HGN test, 1995 NHTSA Student Manual, VIII-21; 1995 NHTSA Instructor
Manual, VIII 52. Interestingly, the 2000 NHTSA Student Manual also
states that the WAT test is not valid for subjects age 65 and over,
and these subjects should only be requested to perform the HGN test,
but the 2000 NHTSA Instructor Manual only notes that the WAT test
is difficult for persons 65 years of age or older. 2000 NHTSA Instructor
Manual, VIII-45.
The 1992 NHTSA Manuals indicate that the WAT test is not valid
for people more than 50 pounds overweight. 1992 NHTSA Instructor
Manual, VIII-54; 1992 NHTSA Student Manual VIII 8. The 1995 and
2000 NHTSA Manuals only indicate that "weight" may interfere
with performance on the WAT test. 1995 NHTSA Instructor Manual,
VIII-69; 2000 NHTSA Instructor Manual, VIII-59. Individuals wearing
heels more than 2 inches high should be given the opportunity to
remove their shoes. 1992 NHTSA Student Manual, VIII-18; 2002 NHTSA
Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-34.
The original WAT test validation research required a designated,
actual, straight line, which the officer could manufacture, 1992
NHTSA Student Manual, VIII-19; 1995 NHTSA Instructor Manual, VIII-41;
2000 NHTSA Instructor Manual, VIII-36, but which was required to
be "clearly visible," 1992 NHTSA Student Manual, VIII-18.
The 2000 and subsequent manuals indicate that an officer may now
use an imaginary line, 2002 NHTSA Instructor Manual, VIII-35, despite
the validation research indicating otherwise. But "a visible
straight line should exist, if possible." 1992 NHTSA Instructor
Manual, VIII-36.
Test conditions for the WAT test require sufficient room for subjects
to safely complete nine heel-to-toe steps in a line and return.
2002 NHTSA Instructor Manual, VIII-34. The initial research also
found that it is critical that there be enough light for the subject
to use a frame of reference for balance; otherwise, sober subjects
as well as nonsober subjects would likely have difficulty with the
test. Development and Field Test of Psychophysical Tests for DWI
Arrest, DOT HS-805-864, at 4. Any reference to the subject being
able to see to perform the test has been omitted in the NHTSA manuals
from the original research in the validation studies.
It is important to note that the officer is specifically instructed
to observe the subject performing the WAT test from a distance and
to limit movement that may distract the subject during the test.
The officer should "remain motionless, three to four feet away.
Too close or excessive motion will make it difficult even if sober."
1992 NHTSA Student Manual, VIII-18. See also 2000 NHTSA Instructor
Manual, VIII-12 ("Officer must limit movements which would
distract suspect during the test").
(1) (§14.38) Two Stages of WAT Test
The WAT test is a divided-attention test that divides the subject's
attention between mental and physical tasks. Before administering
the WAT test, the officer should ask if the subject has any physical
problems or disabilities. 2002 NHTSA Instructor Manual, VII-5. There
are two stages to the WAT test: the Instructions Stage and the Walking
Stage. 2002 NHTSA Student Manual, VII-3.
(a) (§14.39) Instructions Stage
The objective of the Instructions Stage is to divide the subject's
attention by having the subject stand with feet in a heel-to-toe
position, keeping both arms at the sides, while listening to instructions.
2002 NHTSA Student Manual, VII-3.
It is important to note that the officer is specifically trained
to physically demonstrate each individual instruction given to the
subject for the WAT test and is to make sure that the subject understands
the instructions before being told to begin performing the test.
2002 NHTSA Student Manual, VIII-9. The 2002 NHTSA Student Manual
lists the following instructions the officer must give to the subject
in the Instructions Stage before beginning the test:
[H]ave the suspect assume the heel-to-toe stance by giving the
following verbal instructions, accompanied by demonstrations:
"Place your left foot on the line" (real or imaginary).
Demonstrate.
"Place your right foot on the line ahead of the left foot,
with heel of right foot against toe of left foot." Demonstrate.
"Place your arms down at your sides." Demonstrate.
"Keep this position until I tell you to begin. Do not start
to walk until told to do so."
"Do you understand the instructions so far?" (Make sure
suspect indicates understanding.)
Id. at VIII-9. It should be noted that officers are specifically
trained to avoid delays in completing the instructions to avoid
placing the subject for too long a time in the unnatural position
of the Instructions Stage: "It simply isn't fair or meaningful
to require the suspect to maintain the instruction position for
a prolonged period before conducting the walking stage of the test."
1995 NHTSA Instructor Manual, VIII-47. The 1992 NHTSA Student Manual
also instructs, "it is important to avoid delays." 1992
NHTSA Student Manual, VIII-11.
(b) (§14.40) Walking Stage
The second stage of the WAT test is the Walking Stage. The objective
of the Walking Stage is that the subject must take "nine heel-to-toe
steps, turn in a prescribed manner, and take nine heel-to-toe steps
back, while counting the steps out loud, while watching their feet."
2002 NHTSA Student Manual, VII 3. To successfully complete the turn
after the first nine steps in the Walking Stage, the subject must
keep his or her front foot on the line and turn with a series of
small steps with the other foot. The turn should always be to the
left if the subject has taken the correct number of steps. 2002
NHTSA Student Manual, VIII-9.
It should be noted that, if the subject properly assumed the instructional
stance in the Instructions Stage, with the left foot placed in front
of the right, the subject will begin walking in the Walking Stage
on the left foot. The specific instructions the officer must give
for the Walking Stage of the WAT test are:
Explain the test requirements, using the following verbal instructions,
accompanied by demonstrations:
"When I tell you to start, take nine heel-to-toe steps, turn,
and take nine heel-to-toe steps back." (Demonstrate 3 heel-to-toe
steps.)
"When you turn, keep the front foot on the line, and turn
by taking a series of small steps with the other foot, like this."
(Demonstrate).
"While you are walking, keep your arms at your sides, watch
your feet at all times, and count your steps out loud."
"Once you start walking, don't stop until you have completed
the test."
"Do you understand the instructions?" (Make sure suspect
understands.)
"Begin, and count your first step from the heel-to-toe position
as 'One.'"
Id.
(2) (§14.41) Scoring
There are eight clues used to score the subject's performance of
the WAT test. 2002 NHTSA Student Manual, VII-4, VIII 10-11. The
driver will be deemed to have failed the test if two or more of
the eight clues are observed by the officer or if the driver cannot
complete the test. Id. at VIII-11. According to NHTSA, the WAT test
is 68% accurate in determining alcohol intoxication above a 0.10
BAC when two or more clues are present in the WAT test. Id.
The first two clues are in the Instructions Stage:
1. Cannot balance during instructions
2. Starts before instructions are finished
Id. at VIII-10.
The remaining six clues are in the Walking Stage:
1. Stops while walking
2. Does not touch heel-to-toe
3. Steps off the line
4. Uses arms to balance
5. Improper turn
6. Incorrect number of steps
Id. at VIII-10-11.
Cannot balance during instructions. The officer may properly mark
this clue against the driver only if the driver cannot balance during
the instructions to the degree of breaking the heel-to-toe stance,
i.e., the feet must completely break apart. Id. at VIII-10; 2002
NHTSA Instructor Manual, VIII-40. NHTSA specifically instructs that
this clue must not be recorded "simply because the subject
raises arms or wobbles slightly." 1995 NHTSA Student Manual,
VIII-20; 1995 NHTSA Instructor Manual, VIII-49; 2000 NHTSA Instructor
Manual, VIII 42.
Starts before the instructions are finished. The driver must actually
start performing the test before the instructions are finished for
the officer to properly mark this clue. 2002 NHTSA Instructor Manual,
VIII-41. The officer is specifically instructed: "Do not record
this clue if the suspect sways or uses the arms to balance but maintains
the heel-to-toe position" during instructions. 2002 NHTSA Student
Manual, VIII-10. This clue also cannot be recorded unless a subject
was specifically told not to start walking until directed to do
so. 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual,
VIII-49; 2000 NHTSA Instructor Manual, VIII-42.
Stops while walking. The driver must actually pause for several
seconds for this clue to be properly recorded against the driver,
and the officer is instructed, "Do not record this clue if
the suspect is merely walking slowly." 2002 NHTSA Student Manual,
VIII-10; 2000 NHTSA Student Manual, VIII-11. It should be noted
that the 1995 edition of the NHTSA Student Manual stated that this
clue should be scored by the officer when the subject "stops
to steady self," 1995 NHTSA Student Manual, VIII-20, but this
language was omitted in the 2000 NHTSA Student Manual.
Does not touch heel-to-toe. The subject's feet do not have to be
tight to one another every step of the test and must leave a space
greater than one-half inch between the heel and toe on any step
for the officer to properly record this clue. 1995 NHTSA Student
Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-50; 2000 NHTSA
Instructor Manual, VIII-43; 2002 NHTSA Student Manual, VIII-10;
2002 NHTSA Instructor Manual, VIII-41.
Steps off the line. The subject must step so that one foot is completely
off the line for the officer to properly record this clue. 2002
NHTSA Student Manual, VIII-10. As discussed in §14.37 above,
the original WAT test validation research required a designated,
actual, straight line, which the officer could manufacture, for
the subject to use in walking, 1992 NHTSA Student Manual, VIII-19;
1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual,
VIII-36, but the "straight line must be clearly visible,"
1992 NHTSA Student Manual, VIII-18. The 2000 and subsequent manuals
indicate that an officer may now use an imaginary line, 2002 NHTSA
Instructor Manual, VIII-36, despite the validation research indicating
otherwise. But "a visible straight line should exist, if possible."
1992 NHTSA Instructor Manual, VIII-36.
Uses arms to balance. This clue may be properly recorded if the
driver "raises one or both arms more than 6 inches from the
sides in order to maintain balance," 2002 NHTSA Student Manual,
at VIII 11, i.e., it is permissible for the driver to use the arms
to balance as long as one or both of the arms are not raised more
than six inches at any time while performing the test, 2002 NHTSA
Instructor Manual, VIII 41.
Improper turn. This clue may be properly recorded if the driver
does not turn as demonstrated by the officer, i.e., if the "suspect
removes the front foot from the line while turning" by spinning
or pivoting around. 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA
Instructor Manual, VIII-42. The driver must perform "several
small steps in turn." 1992 NHTSA Student Manual, VIII-16.
Incorrect number of steps. This clue may be properly recorded if
the driver "takes more or less than nine steps in either direction."
2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual,
VIII-42. But mistakes in the verbal counting of steps by the subject
do not justify recording this clue against the driver. 1995 NHTSA
Instructor Manual, VIII-51; 2000 NHTSA Instructor Manual, VIII-44.
NHTSA protocol instructs the officer to record all eight clues
against a driver who cannot perform the test using the following
three criteria:
steps off the line three or more times;
is in danger of falling;
cannot do the test.
2002 NHTSA Student Manual, VII-4, VIII-11; 2002 NHTSA Instructor
Manual, VIII-42. The test is also to be terminated if the driver
cannot safely complete the instructed tasks. Id. at 43. If the driver
does not step off the line less than three times, the test is to
be continued from the point of the alleged violation, not from the
beginning. Id. at 42.
c. (§14.42) One-Leg Stand (OLS) Test
Like the WAT test, the OLS test is a divided-attention test that
divides the subject's attention between mental and physical tasks
and forces the subject to hold 1 foot 6 inches off the ground for
30 seconds to complete the test successfully.
As a preliminary matter, the OLS "should be conducted on a
reasonably dry, hard, level, nonslippery surface," and the
suspect's safety should be considered at all times. 2002 NHTSA Student
Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII 45. If these
conditions cannot be met roadside, the subject should be asked to
perform the OLS test elsewhere or only to perform the HGN test.
1995 NHTSA Instructor Manual, VIII-56; 2000 NHTSA Instructor Manual,
VIII-47; 2002 NHTSA Instructor Manual, VIII-45. Wind and weather
conditions may interfere with the subject's performance on the OLS
test. 1995 NHTSA Instructor Manual, VIII-73-74.
NHTSA's validation studies indicated that certain individuals had
difficulty performing the OLS test when sober, including people:
" over 65 years of age;
" over 50 pounds overweight;
" with back, leg, or middle ear problems; and
" with high-heeled shoes over two inches in height.
V. Tharp, Marcelline Burns & Herbert Moskowitz, U.S. Department
of Transportation, NHTSA, Development and Field Test of Pyschophysical
Tests for DWI Arrest, DOT HS-805-864 (March 1981); 1995 NHTSA Student
Manual, VIII 21, 25; 1995 NHTSA Instructor Manual, VIII-61, 63,
73-74; 2000 NHTSA Student Manual, VIII-14; 2000 NHTSA Instructor
Manual, VIII 53; 2002 NHTSA Instructor Manual, VIII-53.
NHTSA validation research indicated that there must be adequate
lighting for the subject to have a frame of reference to perform
the OLS test. If the subject cannot see or become oriented to a
visible point of reference, the test is too difficult to perform
even sober, Development and Field Test of Psychophysical Tests for
DWI Arrests, DOT HS-805-864, at 5, and the test is invalid. People
with leg injuries or inner-ear disorders may have difficulty with
the OLS test, or with any other balance test. 1995 NHTSA Student
Manual, VIII-25; 1995 NHTSA Instructor Manual, VIII-63; 2000 NHTSA
Instructor Manual, VIII-53.
The officer is also precluded from performing distracting movements
while the subject is performing the test. The officer is to observe
from at least three feet away and remain motionless. 1995 NHTSA
Student Manual, VIII-23-24; 2000 NHTSA Student Manual, VIII-14.
The 2002 NHTSA Student Manual instructs only to observe from a safe
distance. 2002 NHTSA Student Manual, VIII-12.
(1) (§14.43) Two Stages of OLS Test
Like the WAT test, the OLS test is a divided-attention test that
divides the subject's attention between mental and physical tasks.
There are two stages to the OLS test: the Instructions Stage and
the Balance and Counting Stage. 2002 NHTSA Student Manual, VII-4-5,
VIII-12.
(a) (§14.44) Instructions Stage
The objective of the Instructions Stage is to divide the subject's
attention by having the subject stand with feet together, keeping
both arms at the sides, while listening to instructions. Id. It
is important to note that the officer is specifically trained to
physically demonstrate each individual instruction given to the
subject for the OLS test and is to make sure the subject understands
the instructions before being told to begin performing the test.
Id. The 2002 NHTSA Student Manual lists the following instructions
the officer must give in the Instructions Stage before the subject
begins the test:
Initiate the test by giving the following verbal instructions, accompanied
by demonstrations.
"Please stand with your feet together and your arms down
at the sides, like this." (Demonstrate)
"Do not start to perform the test until I tell you to do so."
"Do you understand the instructions so far?" (Make sure
suspect indicates understanding.)
2002 NHTSA Student Manual, VIII-12; 2002 NHTSA Instructor Manual,
VIII-48-50.
Placing the feet together in the instructions phase means placing
the heels together with the feet at slight angles.
(b) (§14.45) Balance and Counting Stage
The second stage of the OLS test is the Balance and Counting Stage.
The objective of this stage is:
[T]he subject must raise one leg, either leg, approximately six
inches off the ground, toes pointed out, keeping both legs straight.
While looking at the elevated foot, count out loud in the following
manner: "one thousand and one", "one thousand and
two", "one thousand and three" until told to stop.
2002 NHTSA Student Manual, VII-4. The test is concluded after the
officer has finished timing the 30 seconds the subject is to perform
the test. 2002 NHTSA Student Manual, VIII-12. Note: Before the 2000
edition of the NHTSA Manuals, the subject was instructed to count
out loud "for thirty seconds." 1995 NHTSA Student Manual,
VIII-23.
The specific instructions the officer must give to the driver for
the Balance and Counting Stage of the OLS test are:
Explain the test requirements, using the following verbal instructions,
accompanied by demonstrations.
"When I tell you to start, raise one leg, either leg, approximately
six inches off the ground, foot pointed out." (Demonstrate
one-leg stance.)
"You must keep both legs straight, arms at your side."
"While holding that position, count out loud in the following
manner: 'one thousand and one, one thousand and two, one thousand
and three,' until told to stop."
"Keep your arms at your sides at all times and keep watching
the raised foot."
"Do you understand?" (Make sure suspect indicates understanding.)
"Go ahead and perform the test."
2002 NHTSA Student Manual, VIII-12; 2002 NHTSA Instructor Manual,
VIII-47-48. It is important to note that a driver cannot be required
to hold a foot 6 inches off the ground more than 30 seconds, and
if the driver is required to do so, the OLS test is invalid. 2002
NHTSA Student Manual, VIII-12.
(2) (§14.46) Scoring
There are four clues used to score the subject's performance of
the OLS test. 2002 NHTSA Student Manual, VII-5, VIII 13. The driver
will be deemed to have failed the OLS test if the officer observes
two or more of the four clues or if the driver cannot complete the
test. Id. at VIII-13. According to NHTSA, the OLS test is 65% accurate
in determining alcohol intoxication above a .10 BAC when two or
more clues are present in the OLS test. 2002 NHTSA Student Manual,
VIII 13.
The four clues of the OLS test are (PUSH):
1. Puts foot down
2. Uses arms for balance
3. Sways while balancing
4. Hops
2002 NHTSA Student Manual, VIII-13; 2002 NHTSA Instructor Manual,
VIII-48-50.
Puts foot down. The subject must put the foot down one or more
times during the 30 seconds for this clue to be validly recorded.
Id.
Uses arms for balance. As with the WAT test, this clue may be properly
recorded if the driver raises one or both arms more than six inches
from his or her sides in order to maintain balance, id., i.e., it
is permissible for the driver to use arms to balance as long as
one or both of the arms are not raised more than six inches at any
time while performing the test. Id.
Sways while balancing. There must be a distinct side-to-side or
back-and-forth motion while the driver is attempting to maintain
the one-leg stand position for the officer to properly record this
clue. Id.
Hops. This clue may be properly recorded if the driver resorts
to hopping while attempting to maintain the one-leg stand position.
Id.
NHTSA protocol instructs the officer to record all four clues of
the OLS test against a driver who puts a foot down three or more
times or who cannot complete the test. Id. For each time the driver
puts a foot down before the third time, the officer is to "give
instructions to pick the foot up again and continue counting from
the point at which the foot touched the ground." Id. The test
is also to be terminated if the driver cannot safely complete the
instructed tasks. Id.
Perhaps the most important item in a "close" OLS test
is the consideration of time. The driver is to be tested only for
30 seconds for a valid OLS test, and the officer is to always independently
time the 30 seconds. 2002 NHTSA Student Manual, VIII-12. The test
must be discontinued after 30 seconds. Id. at VIII-12-13; 2002 NHTSA
Instructor Manual, VII-6. When the officer relies on the subject's
counting to measure 30 seconds, the OLS test is invalid. 2002 NHTSA
Student Manual, VIII-12.
Point out that research has demonstrated that many impaired suspects
are able to maintain one leg balance for as long as 25 seconds,
but relatively few can do so for 30 seconds. NOTE: Therefore officer
should keep track of the actual time the suspect stands on one leg.
When 30 seconds have passed, stop the test.
Point out that the subject should be timed while performing this
test.
2002 NHTSA Instructor Manual, VII-6.
4. (§14.47) Portable Breath Tests (PBTs); Missouri PBT Law
As discussed in §14.12 above, Phase III, Pre-Arrest Screening,
"has two major evidence gathering tasks," 2002 NHTSA Student
Manual, VII-1, which form the basis of the officer's decision to
arrest. The second evidence-gathering task is for the officer to
perform a portable breath test (PBT) when allowed by state law.
It is important to note that NHTSA protocol lists standardized
field sobriety testing as the first evidence-gathering task of Phase
III and performing a PBT on the subject as the second. Id. NHTSA
instructs the officer that a PBT "can help to corroborate all
other evidence and to confirm your judgment as to whether the suspect
is impaired." Id. at VII-2 (emphasis added). Implicit in this
instruction is the notion that an officer may not begin an investigation
"fishing" with a PBT without first following NHTSA protocol
regarding Phases I and II, when applicable, and the standardized
field sobriety testing of Phase III before administering the PBT
on the subject. NHTSA further provides that "[t]he PBT result
is only one of many factors the officer considers in determining
whether the suspect should be arrested for DWI. It should never
be the sole basis for a DWI arrest." Id. at VII 7. In short,
a PBT is properly used when the officer seeks to corroborate his
or her initial observations of the subject, but it is not a proper
substitute for the other factors that are to be used in making an
arrest decision-it is only one of several factors to be employed.
When an officer attempts to perform a PBT on a subject moments
after the stop is made, before conducting Phases I and II, when
applicable, and before administering the SFST battery under Phase
III, or when an officer uses a PBT as the sole basis of arresting
a subject for DWI, counsel should seek suppression for lack of probable
cause.
In Missouri, a blood alcohol test administered with a PBT is not
a "test" within the meaning of implied consent statute,
§ 577.020, RSMo Supp. 2003. Justice v. Dir. of Revenue, 890
S.W.2d 728 (Mo. App. W.D. 1995). A PBT is admissible as evidence
of probable cause to arrest in Missouri, but it is not admissible
as evidence of the subject's blood alcohol content. Section 577.021,
RSMo Supp. 2003, provides:
Any state, county or municipal law enforcement officer who has the
power of arrest for violations of section 577.010 or 577.012 and
who is certified pursuant to chapter 590, RSMo, may, prior to arrest,
administer a chemical test to any person suspected of operating
a motor vehicle in violation of section 577.010 or 577.012. A test
administered pursuant to this section shall be admissible as evidence
of probable cause to arrest and as exculpatory evidence, but shall
not be admissible as evidence of blood alcohol content. The provisions
of section 577.020 shall not apply to a test administered prior
to arrest pursuant to this section.
See State v. Duncan, 27 S.W.3d 486, 488 (Mo. App. E.D. 2000) (allowing
the results of PBT into evidence was reversible error in prosecution
for DWI when officer testified that subject "failed" the
PBT test; § 577.021 "represents a legislative conclusion
that the portable breath test is too unreliable to be used to prove
intoxication."). See also:
" State v. Stottlemyre, 35 S.W.3d 854 (Mo. App. W.D. 2001)
(foundation does not need to be established to admit PBT "results");
" State v. Hanway, 973 S.W.2d 892 (Mo. App. W.D. 1998) (trial
court erred in permitting municipal police officer to testify that
he had given defendant a breath test and had arrested him based
on breath test and other field sobriety tests given; statute governing
breath tests only authorized highway patrol officers to perform
test, not municipal or county police officers);
" State v. Buckler, 988 S.W.2d 565 (Mo. App. W.D. 1999) (PBT
relied on to establish intoxication).
Because § 577.021 provides that a PBT may not be used as "evidence
of blood alcohol content," defense counsel should be creative
and seek suppression of officer testimony that the suspect tested
positive for alcohol or that the presence of alcohol was detected
on the subject's breath. See State v. Deshaw, 404 N.W.2d 156 (Iowa
1987) (cited by the Missouri Court of Appeals in Duncan, 27 S.W.3d
486):
The unreliability inherent in the [PBT] test goes to both aspects
of the test; not only may the test register an inaccurate numerical
percentage of alcohol present in the breath, it may also be inaccurate
as to the presence or absence of any alcohol at all. In this case,
the unreliable evidence of the presence of alcohol was introduced
to show defendant had been drinking. We fail to find any suggestion
in the statute that the term "result" should be restricted
to render inadmissible only the numerical percentage of alcohol
present. Consequently, we conclude that the showing of positive
on the test,
indicating the presence of some alcohol, is a "result"
of the testing which may not be used as evidence in court.
Deshaw, 404 N.W.2d at 158.
5. (§14.48) Arrest Decision
The final step in Phase III is the officer's decision whether to
arrest based on all observations in Phases I, II, and III. NHTSA
instructs the officer:
Your decision involves a careful review of each of the observations
you have made. Conduct a "mental summary" of the evidence
collected during vehicle in motion, personal contact and pre-arrest
screening. If all of the evidence, taken together, establishes probable
cause to believe that DWI has been committed, you should arrest
the suspect for DWI.
2002 NHTSA Student Manual, VII-9.
6. (§14.49) Fifth Amendment Considerations; Tests Testimonial
in Nature
The Fifth Amendment's prohibition against compelled self-incrimination
has often been rejected as a valid basis for excluding physical,
scientific evidence. Schmerber v. Cal., 384 U.S. 757 (1966) (prohibition
against self-incrimination is testimonial in nature and offers no
protection against items such as fingerprinting, being photographed,
appearing in court, assuming a particular stance, walking, or making
a particular gesture). But the Fifth Amendment should not be overlooked
as a basis for challenging any physical, scientific evidence that
is objectively testimonial in nature. The evidence may also have
been obtained as the fruit of a Fifth Amendment violation in a case.
See Wong Sun v. United States, 371 U.S. 471 (1963).
To determine whether the Fifth Amendment is applicable, a court
must determine whether the defendant was in "custody"
and whether the responses of the defendant were "testimonial."
In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court ruled
that "custody," for the purposes of the Fifth Amendment,
occurs when "a reasonable person" would no longer feel
free to leave the officer's presence. Although in Berkemer, a drunk
driving case, this occurred after field sobriety tests at the moment
of the official arrest, the moment when the arrest occurs will not
always be when "custody" begins.
Defense counsel must strive to show that custody of the driver occurred
before the administration of SFSTs, if any. When the driver can
be shown to be legally detained or in custody, it can be argued
in many states that no field tests can be given without the proper
Miranda v. Arizona, 384 U.S. 436 (1966), advisements first being
provided. See State v. O'Donnell, 484 S.E.2d 313 (Ga. Ct. App. 1997).
See also Price v. State, 498 S.E.2d 262 (Ga. 1998) (defendant was
"in custody" and thus entitled to Miranda warnings before
administration of field sobriety tests when officer informed defendant
that license check showed she had suspended license, that officer
had strong impression that she was intoxicated based on smell of
alcohol and on her having to steady herself against car to keep
from falling, and that officer would take her to jail for driving
under influence regardless of whether she performed field sobriety
tests).
When the performance of a field sobriety test is testimonial in
nature, i.e., the subject's response could not be elicited without
proper Miranda advisements and a waiver, the test can be argued
inadmissible. Pa. v. Muniz, 496 U.S. 582 (1990) (subject's response
to the question of the date of his sixth birthday was inadmissible
because it constituted testimonial evidence and, therefore, could
not be elicited without proper Miranda advisements and a waiver;
subject's counting at officer's request during field sobriety tests
qualified as a response to "custodial interrogation" within
meaning of Miranda). It should be noted, however, that this interpretation
of the law has fallen out of favor. For an excellent summary of
the law of numerous jurisdictions on this issue, see Vanhouton v.
Commonwealth, 676 N.E.2d 460, 466-67, n.12 (Mass. 1997), which provides:
The recitation of the alphabet from A to Z is an exercise, which
when utilized as a field sobriety test with a suspect asked to perform
the test in his or her own language, is not subject to the privilege
contained in art.12. The fact that a motorist must use his or her
voice to perform the test does not necessarily make the response
testimonial any more so than would the giving of a voice exemplar.
The alphabet constitutes a set of generic linguistic symbols that
the average person masters early in life and learns to recite by
rote. The alphabet cannot be fabricated or guessed at, so a person
reciting it is not faced with the dilemma of deciding between a
true or false answer. As such, the recitation of the alphabet lacks
inherent communicative value because it does not convey knowledge
of any fact specific to the person being questioned. In a road-side
drunk driving inquiry by a police officer, the recitation determines
only whether the motorist's memory is impaired and whether the motorist
has sufficient mental coordination to perform a rudimentary psychological
exercise. In this respect, the test is directed at the reflexive
functioning of the motorist's mental processes, and it provides
a basis for ascertaining the extent to which those processes may
be affected by the motorist's consumption of alcohol. Further, the
fact that the motorist might slur his or her speech while reciting
the alphabet, thereby indicating intoxication, is not significant.
"The physical inability to articulate words in a clear manner
due to 'the lack of muscular coordination of . . . tongue and mouth'
. . . is not itself a testimonial component of [the suspect's] responses
to [the investigating police officer's] . . . questions." Pennsylvania
v. Muniz, supra at 590-91, 110 S.Ct. at 2644-2645. "Certainly,
[the defendant's] inability to recite the alphabet . . . incriminated
him. Intoxication increases reaction time and reduces speed of motor
responses, including those of auditory discrimination and judgment.
. . . The [test] did not require the [defendant] to disclose his
knowledge of his intoxication. [The test combined with the physical
coordination tests] elicited tangible evidence of the . . . condition
of the [defendant's] body. The responses were no more testimonial
or communicative than a voice exemplar . . . or a blood sample .
. ." (citations omitted). Edwards v. Bray, 688 F.2d 91, 92
(10th Cir.1982).
The same conclusion has been reached by the vast majority of other
jurisdictions that have addressed the issue. The decisions hold
that a straightforward alphabet recitation test (or comparable counting
exercises), performed during a roadside investigation of suspected
drunk driving, are outside the protective sphere of the privilege
against self-incrimination because there is no disclosure of subjective
knowledge or thought processes in a constitutionally prohibited
sense. See State v. Superior Court, 154 Ariz. 275, 742 P.2d 286
(Ct.App.1987); Oxholm v. District of Columbia, 464 A.2d 113, 114
(D.C.1983); Lankford v. State, 204 Ga.App. 405, 406-407, 419 S.E.2d
498 (1992), cert. denied, 506 U.S. 1051, 113 S.Ct. 972, 122 L.Ed.2d
127 (1993); People v. Bugbee, 201 Ill.App.3d 952, 959, 147 Ill.Dec.
381, 559 N.E.2d 554 (1990); State v. Maze, 16 Kan.App.2d 527, 532,
825 P.2d 1169 (1992); People v. Burhans, 166 Mich.App. 758, 762-763,
421 N.W.2d 285 (1988) (counting test); State v. Thompson, 237 Mont.
384, 387, 773 P.2d 722 (1989); State v. Zummach, 467 N.W.2d 745,
746 (N.D.1991); State v. Medenbach, 48 Or.App. 133, 616 P.2d 543
(1980); State v. Meek, 444 N.W.2d 48, 50 (S.D.1989).
12Only two States have concluded that an alphabet recitation test
constitutes evidence protected by the privilege against self- incrimination.
See Allred v. State, 622 So.2d 984, 987 (Fla.1993) (under Traylor
v. State, 596 So.2d 957 [Fla.1992], alphabet recitation test is
"[i]nterrogation[:] . . . express questions . . . that a reasonable
person would conclude are designed to lead to an incriminating response");
Vickers v. State, 878 S.W.2d 329, 330 (Tex.Ct.App.1994) (alphabet
recitation test showed defendant's "mind was confused";
test should have been suppressed because it was "testimonial
in nature"). These conclusions have recently been called into
question. See State v. Taylor, 648 So.2d 701, 704 (Fla.1995) (field
sobriety tests do not violate any Fourth Amendment rights); State
v. Burns, 661 So.2d 842, 845 (Fla.Dist.Ct.App.1995) (reviewing Traylor,
supra, and concluding that, under Florida Constitution, routine
traffic stops are not custodial and therefore Miranda warnings are
not required before administering roadside sobriety tests, including
alphabet and counting tests); Vester v. State, 916 S.W.2d 708, 712-713
(Tex.Ct.App.1996) (spoken roadside sobriety tests are nontestimonial;
such tests do not involve an express or implied assertion of fact
or belief).
7. (§14.50) Nonstandardized Field Sobriety Tests
The most common nonstandardized field sobriety tests are:
" the finger-to-nose test;
" the finger-count test;
" the hand-pat test;
" the coin-pick-up test;
" variations of the alphabet test;
" variations of the reverse counting test;
" the tracing/writing/drawing test; and
" the Rhomberg test.
As discussed in §14.13 above, before NHTSA's validation of
the three-test SFST battery, field sobriety tests varied widely
in police departments across the country. The nonstandardized field
sobriety tests employed by law enforcement at the time of the validation
studies were rejected for lack of reliability in accurately determining
whether a subject was alcohol impaired.
While NHTSA instructs that an officer may wish to employ the "additional
techniques" of the alphabet, countdown, and finger-count test
when interviewing the driver in Phase II, 2002 NHTSA Student Manual,
VI-5, its validation studies showed the nonstandardized field sobriety
tests to be inaccurate in determining alcohol impairment, and NHTSA
states flatly in its student manual: THESE TECHNIQUES DO NOT REPLACE
THE SFST. Id. at VI-4.
When an officer employs a field sobriety test on a subject that
is not standardized, i.e., when there are no set administrative
procedures or scoring protocol, or if the test is any test other
than the three tests validated by NHTSA as the most accurate in
determining alcohol impairment, defense counsel should seek suppression
or a limiting instruction.
Nonstandardized field sobriety tests are admissible in Missouri
to show probable cause to arrest, Tuggle v. Dir. of Revenue, 727
S.W.2d 168, 169 (Mo. App. W.D. 1987), and scientific foundation
is not necessary under these circumstances, Eggleston v. Lohman,
954 S.W.2d 696 (Mo. App. W.D. 1997); Kranz v. Dir. of Revenue, 764
S.W.2d 508 (Mo. App. 1989). But when the tests are offered as scientific
proof of sobriety from which an inference of guilt or innocence
can be drawn, they are inadmissible. Nuyt v. Dir. of Revenue, 814
S.W.2d 690, 692 (Mo. App. 1991).
Missouri courts have also emphasized the extent to which the officer
solely relies on nonstandardized tests in the probable cause determination.
It appears that the more indicia of intoxication an officer has
for probable cause separate from the nonstandardized test, the more
likely it is that the test will be admissible. See Eggleston, 954
S.W.2d at 697.
[The officer's] training and experience caused him to look for
the indicators exhibited by [the driver]. No scientific basis was
necessary for admissibility of [the officer's] testimony.
When the results of [the officer's] finger-to-nose test are considered
with the illegal turn [the driver] made, the smell of alcohol on
[the driver's] breath, and [the driver's] slurred speech, [the officer]
had reasonable grounds to believe that [the driver] was driving
a motor vehicle while intoxicated.
Id.
Counsel should be familiar with the nonstandardized tests described
in §§14.51-14.57 below because they are still frequently
employed by law enforcement in Missouri. Because none of these tests
are standardized, large variations in instructions and scoring protocol
may be encountered across jurisdictions.
a. (§14.51) Finger-to-Nose Test
For the finger-to-nose test, the subject is asked to:
" stand with his or her feet together;
" tilt his or her head back; and
" touch the tip of his or her right hand to the tip of the
nose, repeating the process with the left hand.
When confronted with this test, counsel should carefully examine
the officer regarding the instructions that were provided to the
driver. Often, the test will be deemed failed when the subject did
not touch the tip of the fingers to the tip of the nose, despite
the officer not specifically instructing the subject to do so.
b. (§14.52) Finger-Count Test
For the finger-count test, the subject is to:
" touch the index finger to the thumb on the same hand and
count "one";
" touch the middle finger to the thumb and count "two";
" touch the ring finger to the thumb and count "three";
and
" touch the pinkie to the thumb and count "four."
The subject is then to repeat the process starting where he or
she left off, touching the thumb to the pinkie and counting "four"
and counting backward to "one" touching the index finger
to the thumb. The driver will usually be asked to perform the test
at least three times.
When confronted with this test, counsel should carefully examine
the officer regarding the instructions that were provided to the
driver. Often, the test will be deemed failed when the subject did
not count out loud or when the driver did not speed up each time
through the test, despite not being told to do so.
c. (§14.53) Hand-Pat Test
For the hand-pat test, the subject is asked to place one hand palm
up, pat the palm with the other hand, and to continue alternating
patting between the back of the hand and palm of the other hand
in a quick motion while counting.
Not counting, chopping, clapping, or patting too slowly are common
grounds for the officer to claim that the subject failed the test.
Counsel should pay close attention to the instructions given to
the subject and the officer's demonstration of the test, if any.
d. (§14.54) Alphabet Test
The NHTSA Manual indicates that, for the alphabet test in the Phase
II interview, the officer should ask the subject to recite the alphabet,
asking the subject to begin on a letter other than A and end on
a letter other than Z. 2002 NHTSA Student Manual, VI 5. See the
discussion in §14.49 above regarding this test being "testimonial"
in nature.
e. (§14.55) Reverse Counting/Countdown
The reverse counting/countdown test requires a subject to count
out loud 15 or more numbers in reverse sequence. The NHTSA Manual
gives as an example for this test: "[Y]ou might request a driver
to, 'Count out loud backwards, starting with the number 68 and ending
with the number 53.'" 2002 NHTSA Student Manual, VI-5. The
Manual also instructs the officer not to use a starting or ending
number that ends with "5" or "0." Id. at 6.
f. (§14.56) Tracing/Writing/Drawing Test
There are numerous variations of the tracing/writing/drawing test,
many of which call for some variation of drawing a circle within
a square and the subject signing his or her name somewhere inside
the symbols. NHTSA has determined this test mostly unreliable in
determining blood alcohol concentration above 0.10. Marcelline Burns
& Herbert Moskowitz, NHTSA, U.S. Department of Transportation,
Psychophysical Tests for DWI Arrest, DOT HS-802 424 (June 1977).
g. (§14.57) Rhomberg Test
For the Rhomberg test, the subject is instructed to stand with
feet together and eyes closed. The officer is to look for swaying
and lack of balance. While utilized by the National Park Service,
this test lacks reliability because numerous individuals who are
not intoxicated have difficulty with this test. FLEM K. WHITED &
DONALD H. NICHOLS, DRINKING/DRIVING LITIGATION: CRIMINAL AND CIVIL
§ 17:4 (2nd ed. 2003) (citing WALIGREN & BARRY, ACTIONS
OF ALCOHOL (1970)); see also Marcelline Burns & Herbert Moskowitz,
NHTSA, U.S. Department of Transportation, Psychophysical Tests for
DWI Arrest, DOT HS 802-424 (June 1977). The WAT test and OLS test
are modified Rhomberg tests. DRINKING/DRIVING LITIGATION: CRIMINAL
AND CIVIL § 17:13.
III. Admission of NHTSA Manuals Into Evidence
A. (§14.58) Generally
While there is no question that many publications are hearsay and
not admissible for the truth of the matters stated in them because
witnesses could be called to testify, the National Highway Traffic
Safety Administration's (NHTSA) Manuals are admissible under exceptions
to the hearsay rule.
B. (§14.59) Certified Copies
When NHTSA publications are certified, they are admissible under
§ 490.220, RSMo 2000. While Missouri has no exception to the
hearsay rule for public records in general, § 490.220 provides
a codified exception to the hearsay rule for official records of
the United States and other states:
All records and exemplifications of office books, kept in any public
office of the United States, or of a sister state, not appertaining
to a court, shall be evidence in this state, if attested by the
keeper of said record or books, and the seal of his office, if there
be a seal.
As this Court has observed, section 490.220 is one of a number
of statutes that eliminate the foundational requirements of authentication,
best evidence, and hearsay for the admission of certain public documents.
Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1993).
Referring to section 490.220, in particular, this Court then concluded
that "[s]o long as the requirements of the statute are met
and the records are relevant, they are admissible." Id.
Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 55 (Mo. banc 1999).
The Court in Suzuki further held that NHTSA reports clearly meet
the requirements of § 490.220 because they are published in
the Federal Register.
They are not only the records of the office books of the NHTSA,
but also of the Office of the Federal Register, both of which entities
are public offices of the United States. The second requirement
of the statute-that the reports be authenticated by the seal of
the government agency in question-is satisfied by the fact that
the Federal Register is published under seal of the National Archives
and Records Administration, which authenticates the Federal Register
as the official serial publication established under the Federal
Register Act. See 44 U.S.C. § 1501 et seq. (1994); 1 C.F.R.
§ 2.3 (1998).
Id. at 56.
As long as it is established that the officer was trained according
to NHTSA's protocol, NHTSA manuals are admissible under Suzuki,
996 S.W.2d 47, and § 490.220. In 1986, the Advisory Committee
on Highway Safety of the International Association of Chiefs of
Police (IACP) passed a resolution recommending that all law enforcement
agencies adopt and implement the standardized field sobriety testing
procedures developed by NHTSA. In 1992, NHTSA and the IACP Advisory
Committee on Highway Safety adopted the current NHTSA course, "DWI
Detection and Standardized Field Sobriety Testing." The standards
of this program have been approved by the voting membership of the
IACP.
The police academy in Missouri has been teaching the NHTSA-based
course of driving while intoxicated detection and standardized field
sobriety testing since 1984. Accordingly, law enforcement in Missouri
is governed by its protocol.
C. (§14.60) Noncertified Copies
Often, the arresting officer will produce a NHTSA field sobriety
manual at trial; if the copy is not certified, it may be admitted
into evidence through the trade journal exception to the hearsay
rule with proper foundation. The foundation requirements to admit
a noncertified NHTSA manual under the trade journal exception are
set forth in Stuart v. Director of Revenue, 761 S.W.2d 234 (Mo.
App. S.D. 1988).
If there is evidence that the publication contains information
of everyday professional and business need, intended to be circulated
publicly and consulted by interested persons, tested by their use
and found by experience to be trustworthy and actually relied upon
in the work or occupation, such publications are admissible under
the trade journal exception to the hearsay rule.
Id. at 238.
IV. Cross-Examination of Arresting Officer
A. (§14.61) Visiting the Scene of the Stop
For effective cross-examination, it is vital for the defense to
personally visit the scene of the arrest, taking photographs that
can be used to impeach the testimony of the officer. Defense attorneys
who take as truth, without verification, a police report that indicates
the field sobriety tests were conducted on a dry, nonslippery, smooth,
level surface, free of debris, with adequate lighting, without actually
viewing and photographing the scene, do so at their own peril. Once
counsel begins employing this technique, it is staggering the number
of standardized field sobriety tests (SFSTs) that have been found
to have been conducted on a steep grade, with heavy traffic in close
proximity, on gravel, or in complete darkness, despite a police
report indicating pristine conditions. This is a tremendous help
in lowering the officer's credibility with a jury.
B. (§14.62) Videotapes
Videotapes of the stop are becoming prevalent in some jurisdictions.
Determining whether a videotape exists should be one of the defense's
first inquiries in this type of case. While videotapes can be a
double-edged sword if they show a subject staggering in intoxication
or making damaging admissions to drinking, operation of the vehicle,
etc., they often serve as a significant means of challenging the
administration and scoring of field sobriety tests.
The videotapes can be very helpful for the defense in cases when
they act as demonstrative evidence of sobriety in an individual,
especially in cases with a high test result. Counsel should carefully
review any existing videotape to look for signs of sobriety, e.g.,
following instructions, speech, performance of field sobriety tests,
etc. Juries are obviously more inclined to doubt a breath result
when they can view signs of the driver's sobriety with their own
eyes.
Videotapes also serve as an excellent means of cross-examining
the officer regarding field sobriety tests. Counsel should note
that there are excellent videotape summaries available to assist
in evaluating the facts of a case at a very reasonable cost from
expert witnesses. Walden, Platt and Associates, 219 North Main Street,
Suite 406, Bryan, Texas 77803, 979/822-3060, www.waldenplatt.com,
is one excellent source of quick, thorough review of such materials.
C. (§14.63) Police Reports
Defense counsel should commit the officer to the four corners of
the police report regarding every important fact of the case. The
officer should be committed to the fact that the report is complete,
is accurate, and includes all relevant information. After the officer
has committed to the accuracy of the report, counsel should find
all items that indicate the driver's sobriety that are not in the
report and should consider framing all questions thereafter as:
"Please show me where your report states that Driver [could
not] [did not] 'X'."
By showing numerous items that indicate the driver's sobriety using
this method before dealing with field sobriety tests, it helps establish
that the driver could perform normal activities, just not those
involved in the field sobriety tests, which could be difficult for
anyone to perform.
D. (§14.64) Examination of Officer Before Trial
It is very effective to have a transcript that commits the officer
to his or her version of the facts before trial; such a transcript
may be used to impeach the officer's memory of the case if that
memory changes at a later date. Asking friendly, nonconfrontational,
open-ended questions to an officer before trial, without being critical
or pointing out the officer's mistakes at that time, often will
lead to the officer freely making admissions damaging to the state's
case. Once the officer is committed to the story, the transcript
is an excellent tool to impeach the officer in a pointed cross in
front of the fact-finder at trial.
An effective technique is to cite the officer's testimony from
the previous transcript after each question in the materials used
for cross-examination to readily be able to impeach the officer.
Example: "When you administered this test, you told him to
focus on the tip of your ballpoint pen?" ("I told him
to focus on the tip of my ballpoint pen." Transcript, 52 /
6 - 8)
E. (§14.65) Reasonable Suspicion/Probable Cause Based on SFSTs
Regarding cross-examination on field sobriety testing, it is vital
for the defense to attempt to commit the officer, if possible, to
testifying that reasonable suspicion/probable cause was based on
the driver's performance on the SFSTs. When this can be accomplished,
defense can obviously show lack of valid reasonable suspicion to
arrest when the SFSTs are determined improper.
To attempt to commit an officer to testifying that probable cause
was based entirely on the SFSTs, the entire time period of the stop
needs to be broken down one sequential step at a time before attacking
the validity of the SFSTs. After inquiring about each sequential
step, counsel should ask:
" "Did you arrest the driver at that time?"
" "Did you have reasonable suspicion at that time?"
At some point, the officer will commit to when he or she could have
or should have arrested the driver. If the officer admits that there
was no probable cause to arrest until after the SFSTs, probable
cause can be more effectively challenged.
F. (§14.66) Outline for Cross-Examination
In the field, the real-world administration and scoring of SFSTs
often varies very significantly from the tests as envisioned by
National Highway Traffic Safety Administration (NHTSA) protocol
in which the officer is trained, and they should be challenged accordingly.
To properly challenge the admissibility or validity of SFSTs, it
is imperative to memorize every step of NHTSA protocol for each
of the three tests. This includes the environmental conditions,
the instructions, the demonstrations, the proper means of administering
the test, and the scoring. Unless otherwise indicated, page references
in the following outline are to the 2002 NHTSA Student Manual.
I. Administering Standardized Field Sobriety Tests
A. Walk and Turn (WAT)
1. Two Stages
a. Instructions Stage
b. Walking Stage
2. Instructions Stage (VII-3)
a. Objective-(VII-3) subject must stand with feet in heel-to-toe
position, keep arms at sides, and listen to the instructions
b. Instructions (VIII-9)
(1) "Have D assume the heel-to-toe stance by giving the following
verbal instructions, accompanied by demonstrations."
(2) "Place your left foot on the line."
(3) Demonstrate.
(4) "Place your right foot on the line ahead of the left foot,
with heel of right foot against toe of left foot."
(5) Demonstrate.
(6) "Place your arms down at your sides."
(7) Demonstrate.
(8) "Keep this position until I tell you to begin. Do not start
to walk until told to do so."
(9) Demonstrate.
(10) "Do you understand the instructions so far?"
(11) Make sure suspect indicates understanding.
3. Walking Stage
a. Objectives (VII-3)
(1) "Subject must take nine heel-to-toe steps, turn in a prescribed
manner, and take nine heel-to-toe steps back, while counting steps
out loud, while watching their feet."
(2) "During the turn, the subject must keep their FRONT foot
on the line, turn in a prescribed manner, and use the other foot
to take several small steps to complete the turn." (Note: Turn
should always be to the left)
b. Instructions (VIII-9)
(1) "Explain the test requirements, using the following verbal
instructions, accompanied by demonstrations:"
(2) "When I tell you to start, take nine heel-to-toe steps,
turn, and take nine heel-to-toe steps back."
(3) Demonstrate three heel to toe steps.
(4) "When you turn, keep the front foot on the line, and turn
by taking a series of small steps with the other foot like this."
(5) Demonstrate.
(6) "While you are walking, keep your arms at your sides, watch
your feet at all times, and count your steps out loud."
(7) "Once you start walking, don't stop until you have completed
the test."
(8) "Do you understand the instructions?"
(9) Make sure subject understands.
(10) "Begin, and count your first step from the heel-to-toe
position as 'one.'"
4. Eight Clues (VIII-10)
a. There are eight clues used to score the subject's performance
of the WAT test. (VII-4, VIII-10-11) The driver will be deemed to
have failed the test if two or more of the eight clues are observed
by the officer, or if the driver cannot complete the test. (VIII-11)
b. First two clues are in Instructions Stage
(1) Cannot balance during instructions
(a) Must balance heel-to-toe during instructions
(b) Listen to instructions at the same time
(c) Clue should only be recorded if subject does not maintain heel-to-toe
position throughout instructions (feet must actually break apart)
(2) Starts before the instructions are finished-Subject must actually
start the test before instructions are finished to record the clue
c. Remaining six clues in Walking Stage (VIII 10 11)
(1) Stops while walking
(a) Subject must pause several seconds
(b) Clue is not to be recorded if merely walking slowly
(2) Does not touch heel-to-toe
(a) Subject does not have to actually touch heel-to-toe
(b) Subject is allowed a space of up to one-half an inch on any
step
(c) Clue is not to be recorded against subject unless space is more
than one-half an inch between the heel and toe on any step
(3) Steps off the line-Subject must step so one foot is completely
off the line to record this clue
(4) Uses arms to balance
(a) Subject is allowed to slightly use arms for balance
(b) Clue is not to be recorded against subject unless one or both
arms are raised more than six inches from side at any time during
the test to maintain balance
(5) Improper turn
(a) Subject removes the front foot from the line while turning OR
(b) Subject spins or pivots around without making the series of
small steps as instructed
(6) Incorrect number of steps-Subject must take nine steps in each
direction
d. Inability to complete WAT test when (VII-4):
(1) Steps off line three or more times
(2) Is in danger of falling
(3) Cannot do the test
(4) All eight clues are recorded against the subject if the test
cannot be completed
5. Test Conditions (VIII-11)
a. Officer must limit movements that would distract subject during
the test. 2000 NHTSA Instructor Manual, VIII 12.
b. Designated (actual) straight line (VIII-11)
(1) 1992 NHTSA Student Manual required a designated straight line,
which the officer can manufacture. 1992 NHTSA Student Manual, VIII
19. See §14.37, supra.
(2) While the designated line may be manufactured at the scene by
the officer, NHTSA's protocol required that the "straight line
must be clearly visible." 1992 NHTSA Student Manual, VIII-18.
c. Should be conducted on a reasonably dry, hard, level, nonslippery
surface (VIII-11)
d. Needs to be sufficient room for subject to complete nine heel-to-toe
steps (VIII-11)
e. The subject taking the test (VIII-11)
(1) The test criteria for the WAT are not necessarily valid for
all individuals. 1995 NHTSA Instructor Manual, VIII-63; 2000 NHTSA
Instructor Manual, VIII-52-53, 59.
(2) Over 65 years of age?-The WAT is not valid for age 65 and over.
Subject should only do the HGN. 1995 NHTSA Student Manual, VIII-21;
1995 NHTSA Instructor Manual, VIII-52.
(3) Over 50 pounds overweight?-The WAT is not valid for people more
than 50 pounds overweight. 1992 NHTSA Instructor Manual, VIII-54.
(4) Back, leg, or middle ear problems?
(5) High-heeled shoes over two inches in height? (If so, "should
be given the opportunity to remove their shoes.") (VIII-11).
B. One-Leg Stand (OLS)
1. Two Stages
a. Instructions Stage
b. Balance and Counting Stage
2. Instructions Stage
a. Objectives (VII-3)-Subject must stand with feet together, keep
arms at sides, and listen to instructions
b. Instructions (VIII-12)
(1) "Initiate the test by giving the following verbal instructions,
accompanied by demonstrations."
(2) "Please stand with your feet together and your arms down
at the sides, like this."
(3) Demonstrate.
(4) "Do not start to perform the test until I tell you to do
so."
(5) "Do you understand the instructions so far?"
(6) Make sure subject indicates understanding.
3. Balance and Counting Stage
a. Objectives (VII-4)-"Subject must raise one leg, either leg,
approximately six inches off the ground, toes pointed out, keeping
both legs straight. While looking at the elevated foot, count out
loud in the following manner: 'one thousand and one', 'one thousand
and two', 'one thousand and three', until told to stop."
b. Instructions (VIII-12)
(1) "Explain the test requirements, using the following verbal
instructions, accompanied by demonstrations."
(2) "When I tell you to start, raise one leg, either leg, approximately
6 inches off the ground, foot pointed out."
(3) Demonstrate leg stance.
(4) "You must keep both legs straight, arms at your side."
(5) "While holding that position, count out loud in the following
manner: 'one thousand and one, one thousand and two, one thousand
and three, etc.'"
(6) "Keep your arms at your sides at all times and keep watching
the raised foot."
(7) "Do you understand?"
(8) Make sure subject indicates understanding.
(9) "Go ahead and perform the test."
(10) "Officer should always time the 30 seconds. Test should
be discontinued after 30 seconds." (VIII-12)
4. Four Clues ("P.U.S.H.") (VIII-13)
a. There are four clues used to score the subject's performance
of the OLS test. (VII-5); (VIII-13). The driver will be deemed to
have failed the OLS test if two or more of the four clues are observed
by the officer, or if the driver cannot complete the test. (VIII-13).
b. P.U.S.H.
(1) P-Puts foot down
(a) Subject is not able to maintain one-leg stand position
(b) Puts foot down one or more times during the 30-second count
(2) U-Uses arms for balance
(a) Subject is allowed to slightly use arms for balance
(b) Clue is not to be recorded against subject unless one or both
arms are raised more than six inches from side at any time during
the test in order to maintain balance
(3) S-Sways
(a) Side-to-side or back-and-forth motion while subject maintains
the one-leg stand position
(4) H-Hops
(a) If subject resorts to hopping this clue is recorded even if
subject is able to keep one foot off the ground
5. Inability to Complete Test (VIII-13)
a. Puts foot down three or more times during 30 second period
b. Cannot do the test
c. All four clues are recorded against the subject if the test cannot
be completed
6. Test Conditions
a. Officer must limit movements that would distract subject during
the test. Officer is to observe from at least three feet away and
remain motionless. 1995 NHTSA Student Manual, VIII-23-24; 2000 NHTSA
Student Manual, VIII-14. The 2002 NHTSA Student Manual instructs
only to observe from a safe distance. 2002 NHTSA Student Manual,
VIII-12.
b. NHTSA validation research indicated there must be adequate lighting
for the subject to have a frame of reference for the OLS test. 1995
NHTSA Student Manual, VIII-24. If the subject cannot see or orient
himself or herself to a visible point of reference, the test is
too difficult to perform even sober, V. Tharp, Marcelline Burns
& Herbert Moskowitz, Development and Field Test of Psychophysical
Tests for DWI Arrests, DOT HS-805-864 (March 1981), at 5, and the
test is invalid.
c. "[S]hould be conducted on a reasonably dry, hard, level,
nonslippery surface," and the suspect's safety should be considered
at all times. 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor
Manual, VIII-48.
d. Wind and weather conditions may interfere with the subject's
performance on the OLS test. 1995 NHTSA Instructor Manual, VIII-73-74.
e. The subject taking the test
(1) NHTSA's validation studies indicated that certain individuals
had difficulty performing the OLS test when sober, including people
over 65 years of age, people over 50 pounds overweight, people with
back, leg, or middle ear problems, and people with high-heeled shoes
over two inches in height. 2002 NHTSA Instructor Manual, VIII-53;
Development and Field Test of Psychophysical Tests for DWI Arrests,
DOT HS-805-864; 1995 NHTSA Student Manual, VIII-21.
(2) High-heeled shoes over two inches in height? (If so, "should
be given the opportunity to remove their shoes.")
C. Horizontal Gaze Nystagmus (HGN)
1. Definitions
a. Gaze Nystagmus occurs as the eyes move from the center position.
NHTSA definition-involuntary jerking of the eyes; Dr. Joe Citron's
definition-lack of fixation when someone looks to the side
b. Three types of Gaze Nystagmus
(1) Horizontal Gaze Nystagmus-an involuntary jerking of the eyes
as they gaze toward the side. Nystagmus may be due to causes other
than alcohol. These other causes include seizure medications and
some other drugs. A large disparity between the right and left eye
may indicate a medical condition. (VIII-8)
(2) Vertical Gaze Nystagmus-the involuntary jerking as the eyes
gaze upward. If vertical nystagmus is present and horizontal nystagmus
is not, a medical condition is present.
(3) Resting Nystagmus-The jerking of the eyes as they look straight
ahead. Only present with pathology or PCP.
2. Description of the Three HGN Clues
a. Lack of Smooth Pursuit (VIII-5)
(1) The eyes can be observed to jerk or bounce as they follow a
smoothly moving stimulus
(2) The eyes of an unimpaired person will follow smoothly
b. Distinct Nystagmus at Maximum Deviation (VIII-5)
(1) Distinct nystagmus will be evident when the eye is held at maximum
deviation for a minimum of four seconds
(2) People will normally exhibit these signs if eye held at maximum
deviation less than four seconds
c. Onset of Nystagmus Prior to 45 Degrees (VIII-5)
(1) The point at which the eye is first seen jerking
(2) If the jerking begins prior to 45 degrees, it is allegedly evidence
that the person has a BAC above 0.08
3. Administering the HGN Test
a. Pretest-Before looking for the three clues
(1) Remove subject's glasses, if any (VIII-6)
(2) The presence of contact lenses should be noted, but they do
not have to be removed for the test
(3) Instructions (VIII-6)
(a) "Place your feet together with your hands at your sides."
(b) "I am going to check your eyes." (VIII-6)
(c) "Keep your head still and follow this stimulus with your
eyes only." (VIII-6)
(d) "Keep following the stimulus with your eyes until I tell
you to stop." (VIII-6)
(4) Stimulus
(a) "Position the stimulus approximately 12-15 inches from
the suspect's nose and slightly above eye level." (VIII-6);
(X-3)
(b) "Stimulus may be tip of pen or penlight, an eraser on a
pencil or your fingertip, whichever contrasts with the background."
(VII-5)
(5) Pretest-Before administering HGN test, officer must check subject's
eyes for equal tracking and equal pupil size (VIII-5)
(a) Equal tracking-if the eyes do not track together, it could indicate
medical disorder, injury, or blindness (VIII-6)
(b) Pupil Size-if pupils are different sizes, could indicate head
injury (VIII-6)
(6) Pretest pass for equal tracking and pupil size is at least one
pass of the stimulus in front of the subject's eyes before looking
for the three clues
b. Lack of Smooth Pursuit (Clue Number One) (VIII-7)
(1) Left Eye
(a) Always begin with subject's left eye. 1995 NHTSA Instructor's
Manual, VIII-20.
(b) Check subject's left eye by beginning with the center of the
subject's face, moving the stimulus to the officer's right.
(c) Move the stimulus smoothly, at a speed that requires two seconds
to take the subject's left eye out as far as it will go with the
stimulus without the head moving.
(d) With the stimulus, return the eye from as far out as it will
go to center, moving the stimulus smoothly, at a speed that requires
two seconds to return subject's left eye to center.
(e) Move the stimulus "20 degrees per second," 2000 NHTSA
Instructor Manual, VIII-18, i.e., two seconds out from center to
side, and two seconds back from side to center.
(2) Right Eye
(a) Check subject's right eye by beginning with the center of the
subject's face, moving the stimulus to the officer's left.
(b) Move the stimulus smoothly, at a speed that requires two seconds
to take the subject's right eye out as far as it will go with the
stimulus without the head moving.
(c) With the stimulus, return the eye from as far out as it will
go to center, moving the stimulus smoothly, at a speed that requires
two seconds to take return subject's right eye to center.
(d) Move the stimulus "20 degrees per second," 2000 NHTSA
Instructor Manual, VIII-18, i.e., two seconds out from center to
side, and two seconds back from side to center.
(3) Repeat Entire Procedure for Both Eyes-Must check each eye at
least twice for Lack of Smooth Pursuit. 1995 NHTSA Instructor Manual,
VIII-21, 23
(4) Common Mistakes
(a) Holding stimulus too close or too far away from the subject.
1995 NHTSA Instructor Manual, VIII-25
(b) Not holding stimulus slightly above eye level throughout the
passes (VIII-6, X-3)
(c) Moving the stimulus too quickly or too slowly, 2000 NHTSA Instructor
Manual, VIII-20-21, or not using a smooth motion, which may induce
artificial jerking of the subject's eyes
(d) Failing to move the stimulus far enough to the side. 2000 NHTSA
Instructor Manual, VIII 20-21
(e) Arcing the path of the stimulus upward or downward during any
pass causing the stimulus to vary from slightly above eye level.
2000 NHTSA Instructor Manual, VIII-20-21
c. Distinct Nystagmus at Maximum Deviation (Clue Number Two) (VIII-7)
(1) Left Eye
(a) Begin with subject's left eye.
(b) Check subject's left eye by beginning with the center of the
subject's face, moving the stimulus to the officer's far right until
subject's left eye is at maximum deviation.
(c) Usually no white will be showing in the corner of the eye at
maximum deviation.
(d) Hold the stimulus at maximum deviation for a minimum of four
seconds.
(e) Look for distinct and sustained nystagmus while holding the
eye at maximum deviation for at least four seconds.
(f) Note: Fatigue nystagmus will be evident in many sober individuals
if eye is held at maximum deviation for more than 30 seconds.
(2) Right Eye
(a) To check the subject's right eye, move the stimulus all the
way across the subject's face to the officer's left until right
eye is at maximum deviation.
(b) Usually no white will be showing in the corner of the eye at
maximum deviation.
(c) Hold the stimulus at maximum deviation for a minimum of four
seconds.
(d) Look for distinct and sustained nystagmus while holding the
eye at maximum deviation for at least four seconds.
(e) Note: Fatigue nystagmus will be evident in many sober individuals
if eye is held at maximum deviation for more than 30 seconds.
(3) Repeat Entire Procedure for Both Eyes
(4) Common Mistakes
(a) Holding stimulus too close or too far away from the subject.
1995 NHTSA Instructor Manual, VIII-25
(b) Moving the stimulus too quickly or too slowly, 2000 NHTSA Instructor
Manual, VIII-20-21, or not using a smooth motion, which may induce
artificial jerking of the subject's eyes
(c) Failing to move the stimulus far enough to the side, 1995 NHTSA
Instructor Manual, VIII-29
(d) "Some white still showing" while attempting to place
eye at maximum deviation with stimulus. 2000 NHTSA Instructor Manual,
VIII-24
(e) Not holding eye at maximum deviation for at least four seconds.
2000 NHTSA Instructor Manual, VIII-24. (With each eye tested twice,
at least 16 seconds of eyes held at maximum deviation must exist
for a valid test, i.e., 4 x 4. This also does not take into account
the time it takes to smoothly move the stimulus to maximum deviation
for each eye.)
d. Onset of Nystagmus Prior to 45 Degrees (Clue Number Three) (VIII-7)
(1) Left Eye
(a) Begin with subject's left eye.
(b) Check subject's left eye by beginning with the center of the
subject's face, moving the stimulus to the officer's right.
(c) Move the stimulus smoothly, at a speed that requires four seconds
to take the stimulus from center to the edge of the subject's left
shoulder.
(d) Watch for any jerking at any time during the pass between center
and the edge of the subject's shoulder, stopping the stimulus immediately
if jerking is observed and holding stimulus in place to verify that
the jerking continues.
(e) "If the suspect's eyes start jerking before they reach
45 degrees" (edge of shoulder), "check to see that some
white of the eye is still showing on the side closest to the ear.
If no white of the eye is showing, you either have taken the eye
too far to the side (that is more than 45 degrees) or the person
has unusual eyes that will not deviate very far to the side."
(VIII-7)
(2) Right Eye
(a) Check subject's right eye by beginning with the center of the
subject's face, moving the stimulus to the officer's left.
(b) Move the stimulus smoothly, at a speed that requires four seconds
to take the stimulus from center to the edge of the subject's right
shoulder.
(c) Watch for any jerking at any time during the pass between center
and the edge of the subject's shoulder, stopping the stimulus immediately
if jerking is observed and holding stimulus in place to verify that
the jerking continues.
(d) "If the suspect's eyes start jerking before they reach
45 degrees" (edge of shoulder), "check to see that some
white of the eye is still showing on the side closest to the ear.
If no white of the eye is showing, you either have taken the eye
too far to the side (that is more than 45 degrees) or the person
has unusual eyes that will not deviate very far to the side."
(VIII-7).
(3) Repeat the Entire Procedure for Both Eyes
(4) Common Mistakes
(a) Moving the stimulus too quickly by not taking the full four
seconds to move the stimulus from center to the subject's shoulder
(b) Not stopping the stimulus to verify any observed jerking in
the eye
(c) Failing to check for white in the corner of the eye on the side
closest to the ear to verify that the stimulus has not been taken
past 45 degrees. 2000 NHTSA Instructor Manual, VIII-32.
(d) Failing to check alignment with shoulder. Id.
(e) Stopping the stimulus on any pass of this clue short of 45 degrees.
Id.
e. Vertical Gaze Nystagmus (given at the end of the HGN test, commonly
used to determine impairment by certain drugs separate from alcohol)
(VIII-8)
(1) Stimulus must be one pass or a series of passes separate from
those used to test for the three clues above, and are not part of
the HGN test
(2) Administration
(a) Position the stimulus horizontally, about 12-15 inches in front
of the subject's nose.
(b) Instruct the subject to hold the head still and follow the stimulus
with the eyes only.
(c) Raise the stimulus until the subject's eyes are elevated upward
as far as possible.
(d) Hold for approximately four seconds
(e) Watch closely for evidence of jerking.
4. HGN Notes for Cross-examination
a. Subject must always be made to face away from flashing or strobe
lights to avoid stimulation of artificial jerking of the eyes because
of the light. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA
Instructor Manual, VIII 56.
b. Wind, dust, or other eye irritants may interfere with performance
on the HGN test. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA
Instructor Manual, VIII 56.
c. Visual or other distractions may impede the test. 1995 NHTSA
Instructor Manual, VIII-66; 2000 NHTSA Instructor Manual, VIII-56.
d. Glasses impede peripheral vision. 1995 NHTSA Instructor Manual,
VIII-17; 2000 NHTSA Instructor Manual, VIII-13.
5. Missouri HGN Cases
a. The HGN test meets the Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), standard of admissibility. State v. Hill, 865 S.W.2d
702, 704 (Mo. App. W.D. 1993), overruled on other grounds, State
v. Carson, 941 S.W.2d 518, 520 (Mo. banc 1997).
b. Police officer must be adequately trained and able to properly
administer the test. (Eight hours training required on the HGN.
Hill, 865 S.W.2d at 704.)
c. HGN can be admitted as evidence of intoxication. Hill, 865 S.W.2d
at 704.
II. Portable Breath Test
III. NHTSA Validation Language (VIII-19)
A. "It is necessary to emphasize this validation applies only
when:
1. The tests are administered in the prescribed, standardized manner
2. The standardized clues are used to assess the suspect's performance
3. The standardized criteria are employed to interpret that performance.
B. If any of the standardized field sobriety elements is changed,
the validity is compromised."
G. (§14.67) Examples of Cross-Examination Questions
For exhaustive lists of cross-examination questions of an officer
in a DWI case, see:
" LAWRENCE E. TAYLOR, DRUNK DRIVING DEFENSE (5th ed. Aspen
Publishers);
" FLEM K. WHITED & DONALD H. NICHOLS, DRINKING/DRIVING
LITIGATION: CRIMINAL AND CIVIL (2nd ed. 2003);
" JOHN A. TARANTINO, DEFENDING DRINKING DRIVERS (James Publishing,
Inc.); and
" RICHARD ERWIN, DEFENSE OF DRUNK DRIVING CASES, CRIMINAL
AND CIVIL (3rd ed. 1992 Matthew Bender).
The example in §§14.68-14.101 below of typical cross-examination
materials regarding the NHTSA protocol and standardized field sobriety
testing is meant to be illustrative only and should be modified
as the case dictates. The sections covering police reports, number
of DWI trials, professional witness, failure to impound and inventory
evidence, and questions generally regarding the stop and field sobriety
testing are loosely based on material provided by defense attorney
Edward Loss III, of Arizona, at the National College for D.U.I.
Defense summer session, as conducted at Harvard University, Summer
2003, reproduced with Mr. Loss's permission. Unless otherwise indicated,
parenthetical information following some of the questions is an
example of using the officer's previous answers recorded in a transcript,
with reference to the location of the answer in the transcript.
See §14.64, supra.
1. (§14.68) Introduction
Please state for the record your name, serial number, and employment.
If you do not understand any of my questions would you please ask
me to repeat or rephrase it for you?
Officer, if I ask you any question that you find offensive, will
you please tell me?
You are trained as a police officer in the State of Missouri?
Part of your training included the National Highway Traffic Safety
Administration or NHTSA's guidelines for making alcohol arrests?
And for administering standardized field sobriety tests?
Would you believe it fair to state that NHTSA is an authoritative
source regarding information about alcohol arrests and standardized
field sobriety testing?
Officers' training at the police academy is done according to NHTSA's
standardized procedures?
2. (§14.69) Reports
You prepared a written report in relation to this matter?
Your report in relation to this matter is complete and accurate?
("Complete and accurate, yes." 8 / 3 - 5)
And you agree that a complete and accurate report will contain
all of the important facts? ("Yes." 7 / 21 - 24)
The night you arrested Mr. _____________ was the first and only
night you ever met him?
You do not have a clear recollection of the facts attendant to
this matter without consulting your report? ("Vague."
10/ 11 - 14)
Prior to the hearing today, have you had the opportunity to review
your report?
Your report for this matter was prepared from notes that you took
in the field?
You threw those field notes away?
It's your "personal preference" to throw your field notes
away, isn't it? (8 / 18 - 21)
This jury will never see your field notes, will they?
Your report in relation to this matter was prepared after the arrest
decision had been made? (8 / 22 - 25)
Your report was prepared 12 hours after your arrest decision?
(9/ 15 - 16)
And there is no aspect of your complete and accurate report in
relation to this matter that you would like to change or modify,
is there? ("No." 11 / 1 - 4)
You do agree that there is a difference between probable cause
to arrest and proof beyond a reasonable doubt, don't you? (12 /
19 - 22)
3. (§14.70) Number of DWI Trials
You've been with ___________ police department for _____ years?
Prior to that you were with the _____________ office for three
years?
During your years in law enforcement, you've been involved in approximately
_______ DWI arrests? (11 / 15 - 16)
Despite your _____ DWI arrests, as of _____________, the date of
your deposition, you've never testified in a single DWI trial?
(12 / 3 - 7)
This is the first time in ______ DWI arrests that your version
of events will be subject to cross-examination, correct?
This is the first time in _____ DWI arrests that your version of
events will be subject to question?
This is the first time in _____ DWI arrests that your DWI procedures
will be subject to close scrutiny?
4. (§14.71) Overtime Related to Arrests
Can you tell this jury how much overtime pay you made in relation
to DWI arrests in ____? (14 - 15)
Can you tell this jury how much overtime pay you made in relation
to DWI arrests in ____? (14 - 15)
Can you tell this jury how much overtime pay you made in relation
to DWI arrests in ____? (14 - 15)
Despite _______ DWI arrests, you have no idea how much money you
made in overtime pay in relation to DWI arrests in _____, _____,
or the year _____? (14 - 15)
Officer, do you believe there is anyone on this jury who honestly
doesn't know how much money they make?
5. (§14.72) Professional Witness
You've received training in how to testify in court? (12 / 23 -
25)
You consider yourself a professional when it comes to offering
testimony in court? (13 / 22 - 24)
And, you consider it your job here today to help convict [driver]
of these charges, don't you?
6. (§14.73) Operation (if at Issue)
Was there anyone else with you when you first approached my client?
There was no one else present?
It was dark when you first approached my client at the scene of
arrest?
Your report indicates that your initial contact with Mr. ____________
was at his vehicle at the scene of the arrest?
Your report indicates that when you first approached my client
that you saw "the interior light of the truck come on and could
see a white male subject reaching in to the interior of the cab
through the driver's side door"?
Do you think this is a fair characterization of my client's actions
when you first saw him at the scene?
So he was standing beside the truck reaching into the window when
you first saw him?
His buttocks were located outside his vehicle when you first approached
him?
His head was located outside his vehicle when you first approached
him?
His hands were located outside his vehicle when you first approached
him?
His feet were located outside his vehicle when you first approached
him?
The motor was not running when you first approached him?
The keys to the vehicle were not in the ignition when you first
approached him?
The transmission was in park when you first approached him?
The headlights of the vehicle were not on when you first approached
him?
The radio was not on when you first approached him?
The heating / air conditioning was not on when you first approached
him?
He was not sitting in his vehicle when you first approached him?
OR
He was not sitting in the driver's seat of his vehicle when you
first approached him?
Other than being transported by the police to the station, Mr. _____________
was never in a vehicle in your presence on the night of arrest?
Your report does not indicate anywhere that my client admitted
to driving?
Please indicate where your report indicates any admissions by my
client that he was driving.
If he did make admissions to driving it would be important that
you list it in your report, wouldn't it?
7. (§14.74) Vehicle in Motion
You stopped my client for an illegal turn?
This is a relatively minor traffic infraction?
Most people who receive minor traffic infractions such as an illegal
turn or speeding are not arrested for DWI?
The alleged illegal turn is not in itself enough to charge someone
with DWI?
You did not have reasonable suspicion to arrest him for DWI at
the moment you stopped him for the illegal turn, did you?
You did not arrest him under reasonable suspicion for DWI at that
point in the stop, did you?
(Go through the vehicle in motion clues the officer did and did
not observe in making the stop.)
My client did not straddle either the center or lane marker?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not have eye fixation?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not tightly gripping the steering wheel?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not slouching in the seat?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not gesturing erratically or obscenely?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not have his face close to the windshield?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not drinking in the vehicle?
Please indicate where in your report it indicates my client exhibited
this clue.
My client's head was not protruding from the vehicle?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not almost strike any object or vehicle?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not weaving?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not driving on anything other than the properly designated
roadway?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not swerving?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not driving at a speed slower than 10 M.P.H. below
the limit?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not stop in his driving lane for no apparent reason?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not following any other vehicle too closely?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not drifting in his lane?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not cause his tires to move onto the center of the
road or onto the lane marker?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not braking erratically?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not driving into opposing or crossing traffic?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not have slow response to traffic signals?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not signaling inconsistent with his driving actions?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not stopping inappropriately with regard to his driving
actions?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not stop inappropriately?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did allegedly make an illegal turn?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not accelerating or decelerating rapidly?
Please indicate where in your report it indicates my client exhibited
this clue.
My client's headlights were not off?
8. (§14.75) Further Driving Examples
Now, you had an opportunity to observe my client's vehicle for
approximately two miles as it proceeded northbound on X Road the
night of his arrest? (18 / 22 - 25)
According to your complete and accurate report, your attention
was first directed to Mr. X's truck because it drifted between lanes
number # 1 and # 2 on northbound X Road?
And the driving behavior that brought Mr. X to your attention took
five to ten seconds?
When you first stopped him, he tried to explain his erratic driving
by telling you he was "reaching for a CD" as he drove?
(21 / 5 - 9)
And you would agree that reaching for a CD could certainly explain
the driving behavior that you observed? ("To a degree."
21 / 10 - 13)
There were not a lot of other vehicles on the road at that time,
were there? ("No, there were not." 21 / 21 - 23)
And there is nothing in your complete and accurate report stating
that the driving behavior that you have described put any other
vehicles at risk, correct? ("Not specifically, no." 22
/ 4 - 7)
You would agree that, as a police officer, it is your normal practice
to issue citations and warnings for the motor vehicle infractions
that you observe? ("Yes." 24 / 2 - 5)
And you did not cite him or issue him a warning ticket for driving
on other than the designated roadway, did you? (24 / 6 - 8)
And you did not cite him or issue him a warning ticket for improper
lane usage, did you? (24 / 9 - 12)
In point of fact, you didn't cite him for any of the improper driving
that you claim to have observed, did you? ("No I did not."
24 / 13 - 16)
Now, despite all of the driving irregularities you claim to have
observed, when you first observed Mr. X's vehicle, you did not conclude
that he was impaired by reason of alcohol consumption, did you?
("Not at all." 23/ 14 - 19)
Ok, let's talk about some of the things that you did not observe,
shall we?
Nothing in your complete and accurate report suggests that Mr.
X failed to maintain a safe and proper interval between himself
and the vehicle in front of him, does it? ("That's correct."
25 / 4 - 8)
Now you observed Mr. X execute a right hand turn into the mobile
home park off of X Road, correct? (25 / 9 - 12)
And nothing in your report suggests that you observed Mr. X turning
with a wide radius, does it? (25 / 13 - 16)
And nothing in your complete and accurate report suggests that
he failed to signal his right hand turn into that mobile home park,
does it?
And you would agree that signaling a turn is a driving behavior
that you, as a trained officer, would expect from a sober and prudent
driver, isn't it?
Nothing in your report suggests that Mr. X appeared to be drunk
prior to the stop? (25 / 17 - 19)
Nothing in your report suggests that you observed Mr. X almost
strike another vehicle or object, does it? (25 / 20 - 23)
Nothing in your report suggests that my client was exceeding the
posted speed limit, does it? (25 - 26)
Nothing in your report suggests that Mr. X was driving at a rate
of speed more that 10 miles below the posted speed limit? (26 /
2-5)
Your report doesn't suggest that my client was observed stopping
without cause in a lane of traffic? (26 / 7 - 9)
Your report doesn't suggest that you observed Mr. X following another
vehicle too closely? (26 / 10 - 12)
In fact, we know that none of the driving behavior that you observed
put any other vehicle at risk, don't we? (22 / 4 - 7)
Nothing in your report suggests that Mr. X was braking erratically?
(26 / 13 - 15)
Your report doesn't suggest that you observed my client driving
into opposing or crossing traffic? (26 / 20 - 23)
Your report doesn't suggest that you observed Mr. X signaling in
a manner inconsistent with his driving behavior? (26 - 27)
Your report doesn't suggest that you observed Mr. X turning abruptly
or illegally? (27 / 19 - 21)
And we know that he signaled his right hand turn into that mobile
home park off of X Road, don't we? (27 / 6 - 9)
Nothing in your report suggests that you observed my client's responses
to traffic conditions as being slow? (27 / 10 - 13)
And we know that when his vehicle went off the road onto the shoulder
he made an immediate and appropriate correction, didn't he?
Your report doesn't suggest that you observed Mr. X stopping inappropriately?
(27 / 16 - 19)
And we know that when he pulled into the mobile home park, he parked
in an appropriate location, didn't he?
Your report doesn't suggest that you observed Mr. X accelerate
or decelerate rapidly or inappropriately? (27 / 22 - 24)
Your report doesn't suggest that you observed my client driving
with his headlights off? (27 - 28)
So, based on the driving that you observed, you did not conclude
that Mr. X was impaired for reason of alcohol consumption, did you?
("Not at all." 28 / 3 - 6)
9. (§14.76) Stopping Sequence
My client did not attempt to flee?
Please indicate where in your report it indicates my client exhibited
this clue.
My client responded immediately to your request to stop when he
saw your lights and heard your siren?
Please indicate where in your report it indicates my client exhibited
this clue.
My client was not slow to respond to the signs that he was being
requested to stop?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not make an abrupt swerve when requested to stop?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not make an inappropriately sudden stop when requested
to pull over?
Please indicate where in your report it indicates my client exhibited
this clue.
My client did not strike any curb or other object when he properly
pulled over?
Please indicate where in your report it indicates my client exhibited
this clue.
10. (§14.77) Initial Response to Emergency Lights
Nothing in your report suggests that Mr. X's response to your emergency
lights was slow or inappropriate? (28 / 11 - 15)
Based on what's contained in your police report, his response to
your emergency lights was consistent with the response that you,
as a trained officer, would expect from a sober and prudent person,
correct? ("Not necessarily." 29 / 2 - 6)
Nothing about his response to your emergency lights suggested mental
impairment, correct? ("No." 29 / 10 - 12)
After observing the vehicle in motion and the stopping sequence
where my client pulled over when he saw your lights, you had no
reasonable suspicion at that point to believe he was committing
any offense other than committing the traffic offense of an illegal
turn, is that correct?
You did not have reasonable suspicion to arrest him for DWI at
that point, did you?
You did not arrest him under reasonable suspicion for DWI at that
point in the stop, did you?
11. (§14.78) Personal Observations
Under the NHTSA guidelines you were trained with at the academy,
after a vehicle is stopped you are to observe and interview the
driver, and observe the driver's exit and walk, isn't that correct?
12. Interview
a. (§14.79) General
Given your supposed 400 DWI arrests, is it fair to say that you
essentially follow the same investigatory procedures in most of
your DWI arrests?
You asked Mr. X several questions in your interview, didn't you?
(32 / 19 - 20)
What was the first thing you asked him? ("Specifically, I
don't recall." 32 / 22 - 23)
What was the second thing you asked him? (32 / 24 - 25)
What was the third thing you asked him?
You've been involved in 400 DWI arrests, and you don't remember
the first question that you asked him?
He appeared to understand each and every one of your questions,
didn't he? ("Somewhat" 33 / 10 - 12)
His responses to your questions were appropriate in relation to
the questions asked? ("I believe so." 33 / 13 - 16)
Nothing in your report suggests that his responses to your questions
suggested impaired mental faculties, does it? ("Nothing in
my report, no." 33 / 17 - 20)
During the course of your investigation, you asked Mr. X if he
could "feel the effects of alcohol while driving," correct?
(23 / 4 - 7)
And he responded, "No, he could not feel the effects of alcohol
in any way while driving," correct? ("Yes, correct."
23 / 8 - 10)
And he answered that question unequivocally, unambiguously, and
without hesitation, didn't he? (23 / 11 - 13)
He told you that he could not feel the effects of alcohol in any
way while driving, didn't he?
b. (§14.80) NHTSA Interview Clues
Your NHTSA training indicates there are certain clues which might
indicate alcohol impairment when you interview a driver?
My client produced his license and registration upon request, didn't
he?
He did not produce any documents other than those requested, did
he?
He readily retrieved his license and registration for you and did
not fail to see them while searching through his wallet, didn't
he?
He did not fumble or drop his wallet, license, or registration,
did he?
He was able to retrieve the documents using his fingertips, wasn't
he?
Nothing in your report indicates he had bloodshot eyes?
Nothing in your report indicates he had soiled clothing?
Nothing in your report indicates he had fumbling fingers?
Nothing in your report indicates alcohol containers were present?
Nothing in your report indicates drugs or drug paraphernalia were
present?
Nothing in your report indicates he had bruises, bumps, or scratches?
Nothing in your report indicates he exhibited any unusual actions?
Nothing in your report indicates he had slurred speech?
Nothing in your report indicates he made any admissions of drinking?
Nothing in your report indicates he gave any inconsistent responses?
Nothing in your report indicates he used abusive language?
Nothing in your report indicates he made any unusual statements?
Nothing in your report indicates the odor of alcoholic beverages?
Nothing in your report indicates the odor of marijuana?
Nothing in your report indicates the presence of cover-up odors
like breath sprays?
Nothing in your report indicates the presence of unusual odors?
So my client allegedly showed ________ (number) of _______ clues
total?
You did not have reasonable suspicion to arrest my client for DWI
after the interview with him, did you?
Did you in fact arrest my client at that time?
You proceeded with your investigation to attempt to gain reasonable
suspicion to arrest because it did not yet exist, didn't you?
c. (§14.81) Requests for Documentation
At some point in time, you asked Mr. X to produce his driver's
license? (33 / 21 - 23)
And he understood your request in this regard? (33 - 34)
Nothing in your complete and accurate report suggests that his response
to your request for his driver's license suggested mental impairment,
correct? ("Not that I see in my report."
34 / 2 - 5)
And he produced his driver's license in a timely manner? ("Yes
he did." 34 / 8 - 10)
Your report in relation to this matter does not suggest that he
"fumbled" with his wallet while locating his driver's
license, does it? ("No." 34 / 11 - 14)
Based on your training and experience, you know that a truly impaired
driver will often fumble for their driver's license and other requested
documentation, won't they? ("Yes." 34 / 15 - 19)
But Mr. X did not fumble with his wallet for requested documentation,
did he? ("No, sir." 34 / 20 - 22)
Nothing in your complete and accurate report suggests that Mr.
X's retrieval of requested documents demonstrated impaired fine
motor skills, does it? ("No it does not." 34 - 35)
And nothing in your report suggests that his mental abilities were
impaired by reason of his responses to your requests for documentation,
does it? ("No it does not." 35/ 12 - 15)
Nothing in your report suggests that his responses to your requests
for documents suggested that his mental abilities were impaired
to the slightest degree, does it? ("Correct." 35 / 16
- 23)
Nothing in your report suggests that Mr. X's responses to your
requests for documents were anything other than the responses that
one would expect from a prudent and sober person, correct? ("That
is a correct statement." 36 / 12 - 18)
So, based on his responses to your questions and your requests
for documentation, you did not conclude that he was impaired by
alcohol, did you? ("No." 36 / 19 - 22)
d. (§14.82) Nervousness
You checked the box indicating nervousness in your report, is that
correct?
You would agree that a police officer is an authority figure?
(36 / 23 - 25)
As a police officer, you get to carry a badge and a gun and you
have the power to arrest people, don't you? (37 / 1 - 3)
And you would agree that the power to arrest people carries with
it the power to seriously affect people's lives, doesn't it?
Now, you went to school in order to acquire the power to carry
a badge and a gun and have the power to seriously affect people's
lives, correct? (37 / 4 - 8)
Based on your training and experience, you would agree that people
are often nervous during encounters with a police officer, aren't
they? (37/ 9 - 12)
And you would also agree that people are nervous when confronted
by a police officer, even if they have done nothing wrong, correct?
(37 / 17 - 19)
Mr. X wasn't under oath when you were questioning him in the field,
was he? (37 / 20 - 22)
Just like you weren't under oath when you prepared your report
in relation to this matter, were you? (37 - 38)
But you are under oath today, aren't you?
And you were under oath at a Director of Revenue hearing in relation
to this matter on _____________, weren't you?
And you were also under oath during your deposition in relation
to this matter on ________________, weren't you?
e. (§14.83) Odor of Intoxicating Beverage
According to your complete and accurate report, you detected the
strong odor of alcohol emitting from the passenger compartment of
Mr. X's truck when you walked up to the passenger window? (39 /
5 - 10)
I believe you testified at the Director of Revenue hearing on _______________,
that the odor you detected was consistent with the odor of beer?
(39 / 16 - 19)
From the odor you detected, you could not tell how much beer or
alcohol was consumed, could you? ("Not at all." 39 / 20
- 22)
And, from the odor you detected, you could not tell when that alcohol
might have been consumed, could you? (39 23 - 25)
And, based on the odor you detected, you did not conclude that
Mr. X was impaired by reason of alcohol consumption, did you? (40
/ 13 - 17)
That's because the odor of an alcoholic beverage is merely a sign
of consumption and not a sign of impairment, correct?
(40 / 18 - 21)
And it's not illegal to consume alcohol and then drive a motor
vehicle, is it? ("No, sir, it is not." 40 - 41)
That's why most bars and restaurants that serve alcohol have parking
lots, correct? ("Sure." 41 / 4 - 6)
Now, reading from your complete and accurate report: "I asked
Mr. X if he had been consuming alcohol tonight, and he said 'no.'
I asked him to blow air from his mouth into my face, which he did.
I smelled the strong odor of an alcoholic beverage on his breath."
Is that what your report says, Officer?
So, you asked him to blow into your face despite the fact that
you had detected the strong odor of an alcoholic beverage when you
first approached the truck, correct? ("Correct." 41 /
14 - 18)
f. (§14.84) Blood Shot Eyes-Dazed Look on Face
Continuing with your complete and accurate report, you claim to
have observed Mr. X to have bloodshot eyes and a dazed look on his
face? (41 / 22 - 25)
You had never seen Mr. X prior to the moment you stopped him, had
you? (42 / 1 - 3)
You had no prior knowledge as to how he normally looks?
(42 / 4 - 6)
He didn't tell you he was "dazed," did he? (42 / 7 -
8)
In point of fact, on the night you arrested Mr. X, you had no idea
whether the look on his face was the least bit unusual, did you?
(42 / 12 - 15)
That's because you had never laid eyes on him before, had you?
(42 / 16 - 18)
As a matter of fact, that look on his face could have easily been
one of anger or frustration because he didn't like being messed
with by you, correct? (42 / 19 - 22)
You stopped Mr. X at 9:35 at night? (42 / 23 - 25)
You have no idea how long he had been awake that day?
(43 / 4 - 6)
You would agree that many people get red and watery eyes just because
they are tired?
You would agree that many motorists have red and watery eyes even
when cold sober? ("That hasn't been my personal experience,
no." 43 / 11 - 14)
Let me ask you this: Have you ever had to work all night and then
come to court to testify? ("Oh, yeah." 43 / 15 - 17)
Perhaps your eyes might have been red and watery from having worked
all night? (43 / 18 - 20)
But you weren't under the influence of alcohol in court, were you?
NHTSA has also determined in the field that bloodshot eyes are
an invalid indicator of alcohol intoxication, haven't they?
-"Finally, some cues were eliminated because they might be
indicators more of social class than of alcohol impairment. For
example, officers informed us that a flushed or red face might be
an indication of a high BAC in some people. However, the cue also
is characteristic of agricultural, oil field, and other outside
work. Similarly, bloodshot eyes, while associated with alcohol consumption,
also is a trait of many shift workers and people who must work more
than one job, as well as those afflicted by allergies. A disheveled
appearance similarly is open to subjective interpretation. We attempted
to limit the recommendation to clear and objective post-stop behaviors."
"The Detection of DWI at BACs below 0.10," DOT HS 808
654, FINAL REPORT, p. E 10.
OK, so based on the condition of my client's eyes and the expression
on his face, you did not conclude that Mr. X was impaired by reason
of alcohol consumption, did you? (43 - 44)
g. (§14.85) Slurred Speech
OK, your complete and accurate report also states that Mr. X's
speech was slurred?
You don't have any training in speech pathology, do you?
(48 / 22 - 24)
In other words, you couldn't tell me if it was his morphemes, his
phonemes, or his fricative consonants that were slurred, could you?
You had never met or spoken with Mr. X prior to ______________________?
h. (§14.86) Flushed Face
OK, based on your training and experience, you would agree that
a flushed or red face is a common symptom of alcohol intoxication?
(49 / 22 - 24)
And Mr. X did not have a flushed or red face on the night he met
up with you, did he? (49 / 19 - 21)
OR IF THIS CLUE IS INDICATED IN THE REPORT:
NHTSA has also determined in the field that a red or flushed face
is an invalid indicator of alcohol intoxication, haven't they?
-"Finally, some cues were eliminated because they might be
indicators more of social class than of alcohol impairment. For
example, officers informed us that a flushed or red face might be
an indication of a high BAC in some people. However, the cue also
is characteristic of agricultural, oil field, and other outside
work. Similarly, bloodshot eyes, while associated with alcohol consumption,
also is a trait of many shift workers and people who must work more
than one job, as well as those afflicted by allergies. A disheveled
appearance similarly is open to subjective interpretation. We attempted
to limit the recommendation to clear and objective post-stop behaviors."
"The Detection of DWI at BACs below 0.10," DOT HS 808
654, FINAL REPORT, p. E-10.
i. (§14.87) Sluggish Mannerisms
OK. continuing with your complete and accurate report . . .
Your report in relation to this matter states that Mr. X's "mannerisms
were sluggish"? ("Correct." 50 / 3 - 6)
Again, you never laid eyes on him prior to the night of his arrest?
(50 / 9 - 11)
You had no idea how he normally behaves? ("Correct."
50 / 22 - 24)
You had no idea what his normal "mannerisms" were? ("Correct."
51 / 16 - 18)
13. (§14.88) Exit Sequence
I am now going to ask you about when you requested my client to
exit his vehicle.
NHTSA instructs you that there are seven clues to look for impairment
when a driver exits the vehicle?
Nothing in your report indicates my client showed any angry or
unusual reaction when he exited his vehicle?
Nothing in your report indicates that he could not follow instructions?
Nothing in your report indicates that he could not open the door?
Nothing in your report indicates that he left his vehicle in gear
when he exited his vehicle?
Nothing in your report indicates that he climbed out of his vehicle?
Nothing in your report indicates that he was leaning against the
vehicle when he got out to maintain balance?
Nothing in your report indicates that he kept his hands on the
vehicle for balance?
Nothing in your report indicates that my client exhibited any of
NHTSA's clues of alcohol intoxication when a driver exits a vehicle?
Go through the chart in §14.11 above and check all clues officer
has in report and all clues he does not have in his report if it
is beneficial to the client in the case, and give a "grade"
in front of the jury.
You asked him to sit in your patrol car at that point for ______
minutes?
You did not have reasonable suspicion to arrest him for DWI at
that point, did you?
You did not arrest him for reasonable suspicion for DWI at that
point in the stop, did you?
You proceeded with your investigation to attempt to gain reasonable
suspicion to arrest because it did not yet exist, didn't you?
NHTSA provides you are not to administer standardized field sobriety
tests to a driver unless probable cause exists at this point, doesn't
it?
But you chose to proceed with giving the field sobriety tests despite
not having reasonable suspicion to do so, didn't you?
You would have arrested my client before administering standardized
field sobriety tests if you had reasonable suspicion, wouldn't you?
14. (§14.89) Exit Sequence Further Examples
Now, after Mr. X properly parked his vehicle. you approached his
vehicle, correct? (30 / 5 - 7)
Shortly thereafter, you asked him to exit his vehicle? (30 / 8
- 10)
He appeared to understand your request in this regard? (30 / 11
- 12)
Nothing about his response to your instructions to exit his vehicle
suggested impaired mental faculties, did it? ("No, not that
I recall." 30 / 13 - 17)
You observed him exit his vehicle? (30 / 18 - 19)
Nothing in your report suggests that he had difficulty exiting
his vehicle? (30 / 20 - 22)
Nothing in your complete and accurate report suggests that he had
difficulty maintaining his balance as he exited his vehicle? (30
- 31)
And, you know based on your training and experience, that a truly
impaired driver will often have difficulty exiting his vehicle?
("At times." 31 / 8 - 11)
You are trained to note evidence of impairment in your complete
and accurate reports, aren't you? (31 / 2 - 4)
And if he had difficulty exiting his vehicle, you would have noted
that fact in your report, correct? (31 / 5 - 7)
After he exited his vehicle, you instructed him to walk to the
rear of his vehicle? (30 / 12 - 14)
And your report states, "As Mr. X walked (to the rear of his
truck), he used the bed of his pick-up truck for support."
(31 / 15 - 18)
Is that what your complete and accurate reports says?
Now, he didn't tell you that he was using the bed of his truck
for support, did he? ("No." 31 / 19 - 21)
By "using the bed for support," you mean he had his left
hand on the bed of his pick-up truck as he walked to the rear of
his vehicle?
You never told him not to put his left hand on the bed of his pick-up
truck as he walked to the rear of his vehicle, did you?
And you did not conclude that he was impaired by alcohol because
he put his hand on the bed of his truck, did you?
He had a Chevy 350 racing engine in the back of his pick-up truck?
(32 / 3 - 4)
Now, Officer, you are obviously young and in very good shape. You
wouldn't disagree with the fact that a lot of people are just sore
and hurting at the end of a long day, would you?
A lot of people are just sore and hurting when they exit a vehicle,
aren't they?
And you don't know if Mr. X was sore and hurting when he walked
to the rear of his vehicle, do you?
15. (§14.90) Standardized Field Sobriety Testing
You administered certain roadside agility exercises to Mr. X on
the night of his arrest?
Do you agree that the National Highway Traffic Safety Administration
is an authoritative source of information regarding field sobriety
testing? ("Yes." 60 / 12 - 16)
Would you also agree that NHTSA based SFST procedures are reasonably
relied upon by police officers when forming inferences and opinions
regarding a subject's blood alcohol concentration?
(60 / 17 - 21)
And your SFST training was done pursuant to standards and procedures
established by the National Highway Traffic Safety Administration?
(60 - 61)
You would agree that the instructional, administrative, and scoring
protocol as defined by NHTSA with respect to field sobriety testing
must be followed in order to ensure the validity of your purported
test results? ("Yes." 61 / 3 - 8)
And you would also agree that NHTSA publications regarding field
sobriety testing are considered to be authoritative sources of information
by police officers such as yourself?
And you do not consider yourself free to deviate from NHTSA standardized
protocol, do you? ("No." 74 / 17 - 20)
a. (§14.91) HGN Test
OK, one of the so-called "tests" that you administered
is the Horizontal Gaze Nystagmus Test? (51 / 19 - 22)
What is horizontal gaze nystagmus? (an involuntary jerking of the
eyes as they gaze toward the side).
You claimed to have observed six HGN clues, correct?
Do you dispute the fact that according to NHTSA research, six HGN
clues have been observed in subjects with BACs as low as-BAC is
blood alcohol concentration-with BACs as low as .05?
So you have no basis to dispute that, correct?
Nystagmus may be due to causes other than alcohol consumption?
Please describe your training in administering the HGN test. (Police
officer must be adequately trained and able to properly administer
the test (eight hours training required on the HGN), State v. Hill,
865 S.W.2d 702, 704 (Mo. App. 1993), rev'd on other grounds, State
v. Carson, 941 S.W.2d 518, 520 (Mo. 1997).)
(1) (§14.92) Test Conditions
You administered the HGN at night, correct?
You administered the test roadside after you pulled him over?
Was Mr. X facing toward your vehicle or away from your vehicle
when you performed the test?
Was he standing in a position where he could see the lights of any
vehicles? (No.)
He couldn't see either the headlights or the taillights of any
other vehicles where he was standing? (Probably the headlights.)
-Subject must always be made to face away from flashing or strobe
lights to avoid stimulation of artificial jerking of the eyes due
to the light. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA
Instructor Manual, VIII-56.
Was it windy that night?
-Wind, dust, or other eye irritants may interfere with performance
on the HGN. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor
Manual, VIII-56.
Describe the traffic conditions on the road where the test was
conducted-e.g., was it an expressway where the traffic was heavy
and moving in close proximity to the subject?
(2) (§14.93) Pretest
Your stimulus, or stylus, for the HGN was a pen, correct?
Did you hold the stimulus at eye level or above eye level to perform
the HGN test? ("Position the stimulus approximately 12-15 inches
from the suspect's nose and slightly above eye level." (2002
NHTSA Student Manual, VIII-6))
How far away did you hold the stimulus when conducting the HGN
test? ("Position the stimulus approximately 12-15 inches from
the suspect's nose and slightly above eye level." (2002 NHTSA
Student Manual, VIII-6))
What instructions did you give my client prior to the HGN test?
(Instructions: "I am going to check your eyes." "Keep
your head still and follow this stimulus with your eyes only.")
"Keep following the stimulus with your eyes until I tell you
to stop." (2002 NHTSA Student Manual, VIII-6)
When you administered the HGN to my client, you told him to keep
his head still, correct?
According to the NHTSA standardized protocol, my client had to
keep his head perfectly still during the HGN test in order for the
HGN conclusions to be valid, correct?
Holding the head perfectly still is one of the standardized elements
of the HGN, correct?
Your HGN results would be invalid if the head was not held still,
correct?
According to your report, my client swayed during your administration
of the one-leg stand test, finger to nose test, and walk and turn
test, correct?
So he held his head perfectly still during the HGN test but swayed
during the other exercises you recorded, is that correct?
Did you note in your report whether he was wearing glasses?
Did you allow him to remove them prior to the test?
Did you note in your report whether he had contact lenses?
Did you pretest my client to make sure he was an eligible candidate
for the test prior to administering the test? ("Yes.")
Please describe the clues you are instructed to look for in the
pretest prior to performing the HGN test to ensure he was an eligible
candidate for the test. (Prior to administering HGN test, officer
must check subject's eyes for equal tracking and equal pupil size.
(2002 NHTSA Student Manual, VIII-5))
So you pretested for pupil size and equal tracking of his eyes
prior to administering the HGN test for the three clues?
Describe the procedure you use for pretesting for pupil size and
equal tracking. (Pretest pass for equal tracking and pupil size
is at least one pass of the stimulus in front of the subject eyes
prior to looking for the three clues.)
Were his pupils the same size?
Did his eyes track equally to your stimulus during the pretest?
How many passes with the stimulus did you make for the pretest?
What speed did you use for the stimulus during the pretest passes?
(Must be even speed of two seconds out from nose to side and two
seconds back for each pass utilized. Move the stimulus "20
degrees per second." (2000 NHTSA Instructor Manual, VIII-18)-i.e.,
two seconds out from center to side, and two seconds back from side
to center).
After the pretest, you determined my client was an eligible candidate
for the test?
(3) (§14.94) Lack of Smooth Pursuit
And you then administered the test looking for the three clues
of the HGN test?
What are the three clues you were looking for? (Lack of Smooth
Pursuit, Distinct Nystagmus at Maximum Deviation, and Onset of Nystagmus
Prior to 45 Degrees)
Beginning with the first clue of Lack of Smooth Pursuit, which
eye did you begin with? (Always begin with subject's left eye. 1995
NHTSA Instructor's Manual, VIII-20)
Where on my client's face did you begin checking for the first
clue?
At the center of his face or to the side?
If you started at his nose or the center of his face, describe
how far out you took the stimulus to the side.
And then you returned to center?
How long did it take for you to move from the center of his face
to your right checking his left eye? (Should take 2 seconds.)
And from your right back to center? (Should take 2 seconds.)
Then how did you proceed? ("I checked his right eye for the
first clue.")
Did you follow the same procedure for the right eye as you did
for the left for the first clue of lack of smooth pursuit?
For the right eye, did you begin at the center of his face or to
the side?
If you started at his nose or the center of his face, describe
how far out you took the stimulus to the side.
And then you returned to center?
How long did it take for you to move from the center of his face
to your left checking his right eye? (Should take 2 seconds.)
And from your left back to center? (Should take 2 seconds.)
Were you done testing for the first clue at this point? (Note: entire
procedure must be repeated for both eyes to test for the first clue.
Must check each eye at least twice for Lack of Smooth Pursuit. 1995
NHTSA Instructor Manual, VIII-21, 23)
When moving the stimulus while testing for this first clue, did
you keep it at the same distance from the subject's face the entire
time?
When moving the stimulus while testing for this first clue, was
the stimulus kept the entire time at eye level or above eye level?
(Must be slightly above eye level at all times.)
When moving the stimulus while testing for this first clue, was
the same speed utilized throughout, or were there pauses in the
motion of the stimulus?
Demonstrate how far to the side you took the stimulus in each of
your passes testing for the first clue.
When you concluded testing for smooth pursuit, how did you then
proceed?
(4) (§14.95) Distinct Nystagmus at Maximum Deviation
Which eye did you being with when testing for the second clue of
Distinct Nystagmus at Maximum Deviation?
Where did you begin with the stimulus?
So you began at the center of subject's face or his nose, and then
presumably moved the stimulus to maximum deviation?
Describe maximum deviation. Or demonstrate it please.
How long did you hold the stimulus at maximum deviation when testing
for this clue? (Must hold a minimum of four seconds.)
Describe the nystagmus you observed in the subject's left eye at
maximum deviation. (Nystagmus must be distinct and sustained.)
-Fatigue nystagmus will be evident in many sober individuals if
eye is held at maximum deviation for more than 30 seconds if officer
indicates stimulus was held this long.
Did you then move the stimulus all the way across his face and
check his right eye for the second clue?
How long did you hold the stimulus at maximum deviation when testing
for this clue? (Must hold a minimum of four seconds.)
Describe the nystagmus you observed in the subject's right eye at
maximum deviation. (Nystagmus must be distinct and sustained.)
-Fatigue nystagmus will be evident in many sober individuals if
eye is held at maximum deviation for more than 30 seconds if officer
indicates stimulus was held this long.
After you checked his right eye for the second clue, did you then
start checking for the third clue?
-Entire procedure must be repeated for both eyes so each eye is
tested at least twice for the second clue.
(5) (§14.96) Onset of Nystagmus Prior to 45 Degrees
What did you check for after distinct nystagmus at maximum deviation?
(Onset of nystagmus prior to 45 degrees.)
Which eye did you start with when checking for this third clue?
Where did you begin with the stimulus?
So you began at the center of subject's face or his nose, and then
presumably moved the stimulus to your right if you began by checking
his left eye?
How far to your right did you move the stimulus when checking for
this clue? (45 degrees is about the edge of the shoulder.)
How many seconds did it take you to move the stimulus to 45 degrees?
(Move stimulus toward officer's right (testing left eye) at a speed
that takes four seconds to reach 45 degrees (shoulder). 2002 NHTSA
Student Manual, VIII 7)
You indicated my client showed this clue in his left eye; what
did you do when the nystagmus was first observed? (If you see nystagmus
stop and verify the jerking continues. 2002 NHTSA Student Manual,
VIII-7)
Did my client's eyes start jerking before the stimulus reached
45 degrees, or, in other words, the edge of his shoulder?
(If yes). Did you check to see that some white of his eyes was
still showing on the side closest to the ear to verify the stimulus
had not been taken past 45 degrees?
-"If the suspect's eyes start jerking before they reach 45
degrees" (edge of shoulder) "check to see that some white
of the eye is still showing on the side closest to the ear. If no
white of the eye is showing, you either have taken the eye too far
to the side (that is more than 45 degrees) or the person has unusual
eyes that will not deviate very far to the side." (2002 NHTSA
Student Manual, VIII-7)
How many total seconds did it take to test the left eye for this
clue where you allegedly observed nystagmus? (Must be four seconds
plus the time officer is instructed to stop to verify that the nystagmus
continues.)
Did you immediately return back to his center and begin testing
the right eye?
So you began at the center of subject's face or his nose, and then
moved the stimulus to your left to check his right eye?
How far to your left did you move the stimulus when checking for
this clue? (45 degrees is about the edge of the shoulder.)
How many seconds did it take you to move the stimulus to 45 degrees?
(Move stimulus toward officer's left (testing right eye) at a speed
that takes four seconds to reach 45 degrees (shoulder). 2002 NHTSA
Student Manual, VIII 7)
You indicated my client also showed this clue in his right eye;
what did you do when the nystagmus was first observed? (If you see
nystagmus stop and verify the jerking continues. 2002 NHTSA Student
Manual, VIII-7)
Did my client's eyes start jerking before the stimulus reached
45 degrees, or, in other words, the edge of his shoulder?
(If yes) Did you check to see that some white of his eyes was still
showing on the side closest to the ear to verify the stimulus had
not been taken past 45 degrees?
-"If the suspect's eyes start jerking before they reach 45
degrees" (edge of shoulder) "check to see that some white
of the eye is still showing on the side closest to the ear. If no
white of the eye is showing, you either have taken the eye too far
to the side (that is more than 45 degrees) or the person has unusual
eyes that will not deviate very far to the side." (2002 NHTSA
Student Manual, VIII-7)
How many total seconds did it take to test the right eye for this
clue where you allegedly observed nystagmus? (Must be four seconds
plus the time officer is instructed to stop to verify that the nystagmus
continues.)
What did you do then?
Did that conclude your check of each eye for the third clue? (Must
repeat the entire procedure for both eyes for this clue. 2002 NHTSA
Student Manual, VIII-7)
Did that conclude the HGN test?
b. (§14.97) WAT Test
You also administered a roadside agility maneuver called the Walk
& Turn exercise, correct?
And you administered this exercise just inside the entryway to
the neighborhood just east of X Road, correct?
And there were no street lights in that area where you administered
this agility maneuver, were there? (74 - 75)
The closest light was on the gate as you entered the neighborhood?
(75 / 4 - 6)
And he performed these exercises approximately 50 feet east of
that gate? (29 / 7 - 9)
This exercise required him to walk heel to toe?
You didn't give him an opportunity to practice this exercise, did
you? (77 / 19 - 22)
You don't know anyone who normally walks heel-to-toe, do you? (77
/ 22 - 24)
What kind of line did you use? A real one or an imaginary one?
I see from your report that you counted it against him because
he started the test before you finished with your instructions?
(75 / 18 - 21)
You didn't tell him it would count against him if he started the
test before the instructions were finished, did you? (76 / 1 - 7)
People generally do better on tests when they know what they're
being tested on, don't they?
You had him take these heel-to-toe steps up and down an imaginary
line, correct? (71 / 15 - 18)
Was this a line that he was imagining or a line that you were imagining?
("A line that he was imagining." 71 / 19 - 21)
How wide was his imaginary line? ("I don't know." 72
/ 1 - 3)
How wide was your imaginary line? ("About six inches."
72 / 4 - 5)
The color of your imaginary line was white? (" . . . white."
72 / 10 - 12)
Was his imaginary line was also white? ("I don't know."
72 / 13 - 14)
Isn't it true, Officer, that according to the National Highway
Traffic Safety Administration, this particular exercise is supposed
to be administered on a designated, visible line and not an imaginary
line?
If he denies, use demonstrative: "A Straight line must be
clearly visible on the surface." HS 178 R7/91 VIII-18. An officer
may now use an imaginary line in some instances, 2002 NHTSA
Instructor Manual, VIII-36, but a "visible straight line should
exist if possible," 1992 NHTSA Instructor Manual, VIII-36.
So, you would agree that you did not administer the WAT exercise
in a manner consistent with NHTSA protocol regarding the line to
be used, did you?
And you have already testified that the instructional, administrative,
and scoring protocol as defined by NHTSA with respect to field sobriety
testing must be followed in order to ensure the validity of your
purported test results, haven't you?
And we know that you did not adhere to standardized protocol during
the administration of the WAT exercise, did you?
Please describe the type of surface that the walk and turn should
be conducted upon. (Test Conditions. Walk and Turn "should
be conducted on a reasonably dry, hard, level, nonslippery surface."
2002 NHTSA Student Manual, VIII-11).
Please describe the type of surface that the walk and turn was
actually conducted on.
Would you say these photos are a fair and accurate representation
of the scene where the testing was conducted? (Use photos of the
scene to show steep grade, lack of light, heavy traffic, lack of
actual line, etc.)
There was (rain, snow, gravel, debris, heavy wind, lack of light,
etc.) where the testing was conducted that night, isn't that correct?
NHTSA instructs that the walk and turn test is not valid for all
individuals, doesn't it?
Can you please name some types of individuals you are instructed
by NHTSA not to give the test to?
You don't know?
Did you ask my client his age prior to administering the walk and
turn?
Did you know he was over 65? (Not valid for age 65 and over. Subject
should only do the HGN. 1995 NHTSA Student Manual, VIII-21, 1995
NHTSA Instructor Manual, VIII-52)
But you gave him the test anyway, didn't you?
Would you agree that my client is at least 75 pounds overweight?
(The WAT is not valid for people more than 50 pounds overweight.
1992 NHTSA Instructor Manual, VIII-54)
But you gave him the test anyway didn't you?
(If female) My client was wearing high heels on the night of the
incident, wasn't she?
And you did not give her the opportunity to remove them prior to
performing the test, did you? (High-heeled shoes over two inches
in height? (If so, "should be given the opportunity to remove
their shoes.") 2002 NHTSA Student Manual, VIII-11)
Please describe to me in detail how you administered the walk and
turn test to my client, and also describe in detail the instructions
you gave him.
-Instructions officer must give (2002 NHTSA Student Manual, VIII-9)
-Instructional Phase-"Place your left foot on the line."
Demonstrate. "Place your right foot on the line ahead of the
left foot, with heel of right foot against toe of left foot."
Demonstrate. "Place your arms down at your sides." Demonstrate.
"Keep this position until I tell you to begin. Do not start
to walk until told to do so." "Do you understand the instructions
so far?" Make sure suspect indicates understanding.
-Walking Phase-"When I tell you to start, take nine heel-to-toe
steps, turn, and take nine heel-to-toe steps back." Demonstrate
three heel to toe steps. "When you turn, keep the front foot
on the line, and turn by taking a series of small steps with the
other foot like this." Demonstrate. "While you are walking,
keep your arms at your sides, watch your feet at all times, and
count your steps out loud." "Once you start walking, don't
stop until you have completed the test." "Do you understand
the instructions?" Make sure subject understands. "Begin,
and count your first step from the heel-to-toe position as 'one.'"
Were those your complete instructions? (Keep asking this until
officer says yes.) (Go over all instructions above he omits.)
When you were giving the instructions, did you at any time demonstrate
part of the test?
Please describe.
How long did you spend demonstrating the test?
Did you put him in the instructional stance while demonstrating
how he should perform the test?
Nothing in your complete and accurate report indicates he could
not hold this awkward stance while you were demonstrating what he
should do, does it?
How many steps did you take while giving his demonstration of how
to perform the test?
What step did you begin with?
Did you show him how you expected him to pivot to perform the test
the way you wanted?
What foot was down when you pivoted and which foot did you turn
with?
NOTE: To properly perform the test, the turn should always be to
the left if the subject has taken the correct number of steps. 2002
NHTSA Student Manual, VIII-9. If the officer demonstrates an incorrect
number of steps, which causes him to pivot on his right foot and
turn to the right, the demonstration is invalid.
He completed the test, didn't he?
He did not step off the line three or more times, did he?
You did not terminate the test because he was in danger of falling,
did you?
Your report indicates that he took the correct number of steps,
nine out and nine back, is that correct?
So that indicates he ended the first nine steps on his left foot
and pivoted around as you instructed to the left before completing
the nine steps back?
Your report does not indicate that Mr. X did not properly count
out all of his steps out loud, does it?
So he properly counted a total number of 18 steps while walking
for you, didn't he?
Your report indicated he stopped while walking. How many times
did he stop?
You don't remember, do you?
Your report does not indicate where he stopped, does it?
When he stopped did he pause several seconds or was he merely walking
slowly?
Your report also indicated that he did not touch heel-to-toe, but
it is not clear on which steps he failed to maintain heel-to-toe.
Did he maintain heel-to-toe on any steps?
Do you remember how many times he failed to touch heel-to-toe?
On the steps he allegedly broke heel-to-toe, describe the space
he left between his feet for you to mark this clue against him.
My client does not actually have to touch heel-to-toe on every
step, does he?
And you are instructed under your training not to mark this clue
against him if there is a space of up to one-half an inch on any
step, isn't that correct?
He actually passed this clue based on your testimony today didn't
he?
Your report also indicates he stepped off of the line, correct?
The imaginary line he was walking, you testified you don't remember
how wide it was, and that it didn't actually exist, correct?
You don't remember if he actually took one foot completely off
of this imaginary line, do you?
Your report indicates that he used his arms to balance while walking.
Please describe how he used his arms for balance. ("He raised
his arms slightly from his sides throughout the test.")
NHTSA instructs that a subject is allowed to slightly use their
arms for balance during the walk and turn test, doesn't it?
And further, that this clue is not to be recorded against subject
unless one or both arms are raised more than six inches from his
or her side at any time during the test in order to maintain balance,
doesn't it?
And you testified that he raised his arms slightly throughout the
test, didn't you?
And you marked this clue against him even though he is allowed
to raise his arms in the way you testified, didn't you?
So he actually passed the walk and turn test, didn't he?
c. (§14.98) Other Examples for WAT
You've heard prior testimony in relation to this matter that Mr.
X is blind in his left eye, haven't you?
Use demonstrative.
Would you kindly read to the jury the last sentence of this poster?
"Individuals who can not see out of one eye may also have
trouble with this test because of poor depth perception." (HS
178 R/791 VIII-18) (Non-hearsay-Adoptive Admission)
So, it would appear, Officer, that not only did you administer
the WAT exercise improperly, that exercise never should have been
administered at all for reason of Mr. X's blindness, correct?
d. (§14.99) OLS Test
OK, now, you also administered a one-leg stand exercise, correct?
(79 / 16 - 18)
This exercise required him to stand with one foot elevated six
inches off the ground for 30 seconds?
And you didn't give him an opportunity to practice this exercise
either, did you? (80 - 81)
And you would agree that balancing on one leg isn't an activity
that most people have a lot of experience doing, is it?
For example, you have probably seen many, many people waiting at
street corners to catch a bus, correct? (81 / 16 - 18)
And you have never seen anyone standing on a street corner waiting
to catch a bus balancing on one leg, have you?
(81 / 19 - 22)
You would agree that balancing on one leg is not routine or usual
human behavior, is it, Officer? (81 / 23 - 25)
But driving a motor vehicle is an activity that most people have
a lot of experience doing, isn't it? (82 / 1 - 4)
Help me out on one other point, Officer. You would agree that one
of the standardized elements of the horizontal gaze nystagmus test
is that the subject must hold his head relatively still in order
to ensure the validity of the HGN test results?
(80 / 13 - 18)
I note from your complete, accurate, and truthful report that during
your administration of this OLS exercise, you noted a "three-to-four
inch front to back sway" and a "five plus inch side-to-side
sway." Is that correct, Officer? (80 / 7 - 12)
So, in other words, during your administration of the HGN test,
you did not notice this "three-to-four inch front to back sway"
and you did not notice this "five plus inch side to side sway,"
did you?
There was (rain, snow, gravel, debris, heavy wind, lack of light,
etc.) where the testing was conducted that night, isn't that correct?
NHTSA instructs that the one-leg stand test is not valid for all
individuals, doesn't it?
Can you please name some types of individuals you are instructed
by NHTSA not to give the test to?
You don't know?
Did you ask my client his age prior to administering the one leg
stand?
Did you know he was over 65? (Not valid for age 65 and over. Subject
should only do the HGN. 1995 NHTSA Student Manual, VIII-21, 1995
NHTSA Instructor Manual, VIII-52)
But you gave him the test anyway, didn't you?
Would you agree that my client is at least 75 pounds overweight?
(The OLS is not valid for people more than 50 pounds overweight.
1992 NHTSA Instructor Manual, VIII-54)
But you gave him the test anyway, didn't you?
(If female) My client was wearing high heels on the night of the
incident, wasn't she?
And you did not give her the opportunity to remove them prior to
performing the test, did you? (High-heeled shoes over two inches
in height? If so, "should be given the opportunity to remove
their shoes." 2002 NHTSA Student Manual, VIII-11)
Did you administer the one leg stand test in the same location
as the HGN and walk and turn?
Which direction was he facing?
Toward the lights or away?
How far away from him were you standing when you administered the
test? (3-4 feet) (Officer must limit movements that would distract
subject during the test. 2002 NHTSA Student Manual, VIII-13)
Where were you in relation to his body while he performed the test?
Please give the instructions exactly as you remember giving them
to my client for this test.
-Instruction Phase "Please stand with your feet together and
your arms down at the sides, like this." Demonstrate. "Do
not start to perform the test until I tell you to do so." "Do
you understand the instructions so far?" Make sure subject
indicates understanding. 2002 NHTSA Student Manual, VIII-12
-Balance and Counting Phase "When I tell you to start, raise
one leg, either leg, approximately 6 inches off the ground foot
pointed out." Demonstrate leg stance. "You must keep both
legs straight, arms at your sides." "While holding that
position, count out loud in the following manner: 'one thousand
and one, one thousand and two, one thousand and three, etc.'"
"Keep your arms at your sides at all times and keep watching
the raised foot." "Do you understand?" Make sure
subject indicates understanding. "Go ahead and perform the
test." (Officer should always time the 30 seconds. Test should
be discontinued after 30 seconds.) 2002 NHTSA Student Manual, VIII-12
Were those your complete instructions? (Keep asking this until
officer indicates the instructions were finished)
He was able to complete the test by NHTSA's standards, wasn't he?
Meaning he did not put his foot down three or more times?
But you checked the box that he put his foot down. So it was at
least once but less than three times?
Where in your report does it indicate on what count he put his
foot down?
Where in your report does it indicate how many times he put his
foot down?
You don't remember with certainty the answer to either of these
questions, do you?
Your report indicates that he used his arms for balance? ("He
raised his arms slightly throughout the test")
But you don't remember on which count he raised them, do you?
Like the walk and turn test, NHTSA instructs that he may use his
arms for balance as long as they are not raised above six inches,
doesn't it?
Can you state with certainty on what counts, if any, he raised
his arms more than six inches?
Please indicate in your report where it states this.
How many arrests would you estimate you have made since the night
you tested my client?
Nowhere in your report does it indicate he resorted to hopping,
does it?
And we already established that he was able to not sway during
the HGN test, but you are claiming he was swaying during this test?
We established through your report and your testimony today that
he completed the test?
So that means he completed thirty seconds, correct?
Was he counting fast or slow?
Did he count clear to 30 himself?
Do you remember what number he counted to before you terminated
the test?
You don't remember, do you?
Please indicate in your report where it states he counted to 30.
Did you keep track of the thirty seconds yourself?
What type of shoes was he wearing?
Please indicate where it states that in your report.
Can you balance on one leg for 30 seconds?
(If no) Would that be a valid indicator that you are impaired by
alcohol today?
Do you believe that any person on this jury should be able to balance
on one leg for 30 seconds, Officer?
If they couldn't, would you arrest them for DWI?
16. (§14.100) Blood Alcohol Content (BAC) Correlation With
Time
OK, it's your testimony under oath that you heard slurred speech
coming from the mouth of Mr. X on the night of _______________________?
Now, you are a certified operator for the Intoxilyzer 5000 breath
testing device? (44 / 3 - 7)
And you had to take a class to achieve this certification? (44
/ 8 - 10)
In that class they also teach you some of the fundamentals about
how alcohol affects the human body? (44 / 16 - 19)
Based on your training and experience, you know that most subjects
will not demonstrate slurred speech until their blood alcohol level
reaches .18 or higher, correct? ("I don't recall that fact
specifically, but it sounds consistent with my training, yes."
44 / 20 - 25)
Now, Mr. X is a 165 pound male, correct? (45 / 8 - 9)
And, based on your training and experience, you would agree that
a 165 pound male will have a blood alcohol contribution of approximately
.025 grams of alcohol for each beer consumed? ("I would have
no basis for argument." 45 / 15 - 20)
Now, for a 165 pound male to reach a blood alcohol level of .18,
he would have had to consume at least 7 or 8 beers, correct? ("No
basis to disagree." 45 - 46 & 46 - 47)
So, Mr. X would have had to consume at least 7 or 8 beers in order
to reach a blood alcohol level where he would be expected to demonstrate
slurred speech, wouldn't he? ("I have no basis for arguing."
47 / 3 - 8)
My client was stopped at 9:35 P.M., wasn't he? (47 / 8 - 9)
And he was continuously in your custody for well over two and one-half
hours, correct? (47 / 23 - 25)
And in the two and one-half hours that he was in your custody,
he never one time asked to relieve himself, did he? ("I don't
believe he relieved himself in my custody." 48 / 6 - 12)
And in the two and one half hours he was in your custody, he never
did relieve himself, did he?
17. (§14.101) Timing of Events
Officer, you do wear a wristwatch, don't you?
That watch keeps accurate time?
And you were wearing your watch on the night of my client's arrest?
So, we can assume that the times listed in your complete and accurate
report are also complete and accurate?
According to your complete and accurate report, you first observed
my client going northbound on X Road at 2135 hours?
That would be 9:35 P.M. civilian time?
Then, according to your complete and accurate report, "Given
the totality of the driving, demeanor, odor of alcohol, and performance
on the field sobriety tests, I felt he was impaired. At 2140 hours,
I placed Mr. X under arrest . . ."
Is that what your report says, Officer?
Now, 2140 hours is 9:40 P.M., correct?
So, if your report-and your testimony under oath before this jury-is
to be believed:
" You made your initial observation of his vehicle.
" You followed him for two miles.
" You initiated your investigatory stop.
" He turned into his neighborhood and parked his truck.
" You exited your motorcycle and approached his vehicle.
" You asked for and reviewed requested documentation.
" You asked him a series of questions.
" You administered an HGN test.
" You administered a WAT exercise.
" You administered an OLS exercise.
And all of those events transpired in a matter of 5 minutes, correct?
Thank you.
©2005 Robert F. Keefer | Site by BlueKey
Photo by: Thomas J. Turney/Daily News-Record
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