Standardized Field Sobriety Tests or SFSTs are frequently admitted in Driving While Intoxicated trials. Even when law enforcement improperly administers the tests, judges admit the tests and allow juries to decide how much weight to give them. Law enforcement officers must be qualified to testify which means certified by The National Highway Traffic Safety Administration (“NHTSA”). Officers train to communicate to juries that the tests are reliable and scientifically valid. Defense counsel need to communicate just how unfair the SFSTs really are.
NHTSA developed the SFSTs to help officers accurately correlate when a defendant’s Blood Alcohol Concentration is above the legal limit. Prosecutors spend a considerable amount of time at trial with the DWI video showing how the defendant performed on the SFSTs. In front of the jury the prosecutor and officer discuss the research and methodology that support the tests. The goal is for the jury to accept the validity of the tests and rely on the SFSTs to convict the defendant.
One way to call into question the fairness of the tests is to show how the defendant is penalized for test criteria that are never explained during the instruction phase of the tests. There are three standardized tests — the Horizontal Gaze Nystagmus Test, the Nine-Step Walk and Turn, and the One Leg Stand. Each test includes a set of prescribed instructions and demonstrations. The NHTSA Manual teaches officers to instruct and demonstrate to the defendant what is expected before beginning the tests. It is important to have the officer acknowledge during cross-examination that the SFSTs are only valid when administered properly. The Manual emphasizes that the validity of the SFSTs applies only when:
The tests are administered in the prescribed, standardized manner,
The standardization clues are used to assess the suspect’s performance,
The standardization criteria are employed to interpret that performance.
The Manual goes on to state that “If any one of the SFST elements is changed, the validity may be compromised.” Participant Manual, DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of the SFSTs Session 8, Page 13 of 82, Revised 10/2015.
Looking at the instructions for the Walk and Turn, 16 distinct elements can be identified. The instructions are as follows:
- 1. Place your left foot on the line (real or imaginary).
2. Place your right foot on the line ahead of the left foot.
3. Do this by placing the heel of your right foot against the toe of the left foot.
4. Place your arms down at your sides.
5. Maintain this position until the instructions are completed.
6. Do not start to walk until told to do so.
7. When told to start, take nine steps on the line.
8. The nine steps must be heel-to-toe.
9. Turn — When you turn, keep the front (lead) foot on the line, and
10. Turn by taking a series of small steps with the other foot.
11. After turning, take nine steps back.
12. The nine steps back must also be heel-to-toe.
13. While walking, keep your arms at your sides.
14. Watch your feet at all times
15. Count your steps out loud.
16. Once you start walking, don’t stop until you have completed the test.
See, Participant Manual, Session 8 Page 56-57 of 82. [Emphasis added]. Note, the instructions are not numbered in the Manual. This author has separated and numbered each instruction.
On cross-examination, ask the officer if these are the NHTSA instructions and if you left out any part of the instructions. Pay special attention to instruction 14 – Watch your feet at all times, and instruction 15 – Count your steps out loud. While these two elements are part of the instructions that the defendant must understand before beginning the test, they are not counted as clues of intoxication. There are 16 separate instructions for the Walk and Turn, but the officer only scores eight clues on this test. Ask what the eight clues of intoxication are and list them for the jury to see:
- 1. Cannot keep balance while listening to the instructions
- 2. Starts too soon
- 3. Stops while walking
- 4. Does not touch heel to toe
- 5. Steps off the line
- 6. Uses arms to balance
- 7. Improper turn
- 8. Incorrect number of steps
See, Participant Manual, Session 7, Page 14 of 25.
During cross-examination ask the officer whether watching your feet or counting out loud is a clue of intoxication. When the officer says no, lock down that these extra steps do nothing to measure impairment, i.e., a defendant could count out loud or watch his feet, and it would make no difference to his overall score. Ask whether the defendant receives any credit at all for watching his feet or counting out loud. The officer may reply that this is the way he was trained to give the instructions, he is just following protocol, or that counting and watching your feet makes the test more difficult. That is fine. Some jurors will disapprove of the officer’s tactics. They will find that distracting the defendant with gratuitous instructions does nothing to detect impairment and makes the test unfair. Argue that the officer made the test harder than was necessary. Argue that in making the test unnecessarily difficult, the test is designed to make defendants fail. If the officer says that the extra instructions are part of a divided attention task, just like driving, then ask the officer if good drivers try to minimize unnecessary distractions while driving and shouldn’t test subjects be given the same courtesy. Argue that the test is biased because it only looks for evidence of intoxication and disregards evidence of sobriety even when the defendant follows the instructions perfectly. Finally, argue that this is not a standardized test because different people can perform the test differently (following some but not all of the instructions) and yet score exactly the same on the Walk and Turn.
Now, let’s look at the One Leg Stand. The officer is trained to give the following 11 verbal instructions, accompanied by demonstrations:
- 1. When I tell you to start;
- 2. Raise either leg;
- 3. With the foot approximately six inches off the ground;
- 4. Keeping your foot parallel to the ground;
- 5. Keep both legs straight; and
- 6. Keep your arms at your side.
- 7. While holding that position, count out loud
- 8. In the following manner: “one thousand one, one thousand two, one thousand three,” and so on
- 9. Until told to stop;
- 10. Keep your arms at your sides at all times; and
- 11. Keep watching the raised foot.
Participant Manual, Session 7 Page 67 of 82. [Emphasis added]. Again, please note, the instructions are not numbered in the Manual. This author has separated and numbered each instruction.
Ask the officer if these are the NHTSA instructions and if you left out any part of the instructions. Once the officer admits that these are the NHTSA instructions, ask what the four clues of intoxication are on the One Leg Stand. List them for the jury to see. The NHTSA manual states that Officers are to: “carefully observe the subject’s performance and look for four specific clues:
- Sways while balancing
- Uses arms to balance
- Puts foot down
Participant Manual, Session, Session 7 Page 17 of 25. [Emphasis added].
Note that the One Leg Stand requires 11 separate instructions, seven of which are not scored. Despite being instructed to do so, no credit is given for raising the foot six inches off the ground nor for making the foot parallel with the ground. There are no clues of intoxication for bending the leg rather than keeping the leg straight. While counting out loud is an instruction, it is not a clue of intoxication. Nor is it a clue if the defendant counts past the time to stop. While the test is underway, some officers will repeatedly bark to “look at your toe.” Refusing to watch the raised foot is not designated as a clue of intoxication. When an officer unnecessarily distracts the defendant from performing well on the test it is a good idea to let the jury know that is precisely what is happening.
More importantly, defendants are not warned about two of the four designated clues — swaying and hopping. I have never heard an Officer tell a defendant not to hop and not to sway. Together these two clues make up half the scoring on the One Leg Stand test. Consider that if the defendant keeps his head still during the HGN (where the defendant is instructed not to move his head) a strong argument can be made that when given the instruction to hold his head still, he was able to comply with the instruction. Argue that it is only when the officer leaves out the instruction not to sway does the defendant exhibit some sway. In varying forms, officers explain superfluous information that is not tested and leave out the instructions that are most important. Requiring knowledge of material that had not been previously explained strikes most people as unfair. On cross-examination, ask the officer if he thinks it is best to test a defendant on something he was not instructed to do.
One more test that is not a part of NHTSA’s SFSTs is the Romberg Balance. Here the officer instructs the subject to stand with your feet together, tilt your head back, close your eyes, and estimate the passing of 30 seconds. According to most probable cause affidavits, the clues of intoxication on the Romberg Balance Test are:
- 1. Exhibited __ inch sway front to back; 3. Exhibited 30 seconds as __ seconds.
- 2. Exhibited __ inch sway side to side; 4. Exhibited __ inch circular sway;
Again, this is not a Standardized Field Sobriety Test but officers often give the Romberg as another test in an attempt to observe the defendant’s impairment. Mixing up the instructions should not have any significance on this test since it is not standardized. But notice again, no instructions are given not to sway where swaying makes up seventy-five percent of the criteria on the test.
Lawyers who prepare the jury to look for police officer bias in voir dire will have an advantage showing the jury how unfair the Standardized Field Sobriety Tests are especially when so many of the instructions distract from doing well on the test itself.