By: Bubba Head, Board Certified DUI Lawyer in Atlanta and Drunk Driving Book Author
If you have recently been arrested for driving under the influence (DUI) after failing the field sobriety tests, it may be too late to tell you that these sobriety tests are completely voluntary (that is, you can’t be punished for declining to take them).
But it’s never too late to challenge your results. The officer’s scoring on the field sobriety tests is completely subjective, which means that his or her bias could result in a failing grade. Because of this deception, you should work with an Atlanta DUI attorney who can review your field sobriety evaluation test to determine if it was scored fairly, or if there were other factors (like overweight, orthopedic issues, inner ear problems) that affected your performance.
Despite a complete lack of a scientific basis, a police officer can use a number of field sobriety tests, such as reciting the alphabet backwards or touching your nose with your eyes closed, to see if you are impaired.
However, only three tests are approved by the National Highway Traffic Safety Administration (NHTSA): the walk and turn, one leg stand, and horizontal gaze nystagmus. DUI lawyers will use “shorthand” to identify these sobriety tests as WAT, OLT, and HGN. Another rarely given test is called the vertical gaze nystagmus, or VGN.
The walk-and-turn and one-leg stand tests both measure your ability to follow simple instructions as well as to complete a physical task. The theory is that both of these abilities become diminished once a person is under the influence of alcohol. However, other factors could affect how a person performs these tests.
For example, an individual who has a physical problem, is overweight, or is over a certain age (40 or over) may have a hard time successfully completing these tasks. Just being nervous and shaking, due to the stress of your situation, may cause you to be unable to perform them at all. Wearing the wrong shoes or even being nervous can also make getting a passing score more difficult.
The horizontal gaze nystagmus test has a medical origin, but is NOT used by physicians to guess your alcohol level. During the administration of this test, an officer will ask you to follow an object with your eyes while he or she looks for your eyes to jerk (a sign of possible central nervous system issues).
However, a number of other physical and neurological conditions can also cause this involuntary jerking as you look side to side. Doctors do a similar evaluation, in a dark room, when evaluating HEAD TRAUMA. An attorney can work with a medical expert to determine if a condition—other than the consumption of alcohol—is responsible for nystagmus.
As drunk driving cases increased, and citizens hired criminal lawyers to fight their DUI-DWI cases across the country, a disturbing trend of victories by DUI defense lawyers became apparent.
Jurors would hear the evidence, and see some made-up sobriety tests being given (like picking up four coins in their sequence of value, from lowest denomination to highest, or tracing a circle with a pencil, or attempting to count backward, or blowing into a hat) and simply not find that this “proof” meant anything.
Acquittals increased as the DUI attorneys became more skilled at fighting driving under the influence charges.
The lack of some UNIFORM method of SCREENING possible drunken drivers at the roadway was apparent to all. No approved methods for screening drinking drivers existed in any state. One officer would make up some tests, and then pass it on to others. Soon, it became a joke to think that these ad hoc exercises could point to sobriety or the LACK thereof.
Marcelline Burns, a Ph.D. candidate in college in California, wrote her thesis on drunk driving, and suggested a NATIONAL need for “standardized” roadside tests that would have SOME correlation to DWI-DUI. Her supervising professor (Dr. Herbert Moskowitz) suggested that she send the paper to NHTSA, a federal agency that oversaw highway safety.
This acronym stands for “National Highway Traffic Safety Administration” and is part of the United States Department of Transportation. His idea was to help her try to get a government contract to STUDY the idea, and formulate some appropriate, standardized tests.
Dr. Burns’ letter to NHTSA pointed out the extreme need for a “battery” of quick and uncomplicated roadside tests to be used by police officers to make better arrest decisions, and to CREATE standardized evidence that could “hold up” in court.
Always looking to find a better way to identify impaired drivers who were violating the law, as opposed to drinking drivers who were in compliance with the law, must have struck a chord with the NHTSA brass because Dr. Burns landed a HUGE government contract.
Dr. Burns’ challenge was to create a few, easy-to-administer, quick roadside tests, which would be FAIR sobriety tests. Her investigation into which were the BEST tests would be overseen and documented by trained observers who had a scientific background.
Next, the voluminous results obtained after screening (and re-screening) hundreds of test subjects, would be studied by her team to find the MOST reliable of the ten original tests investigated. The HOPE was for the final field sobriety tests to be proven to be highly accurate at predicting which drivers were at or above the legal limit for alcohol of 0.10 grams percent (at that time). Then, the team had to narrow down these “tests” to those that could be objectively standardized, controlled and uniformly taught to be given in a fixed, systematic manner to police officers all across America.
Unfortunately, while basic “scientific method” was used in two studies (1977 and 1981), the effort was begun to CREATE the statistical data and “numbers” before any NORMS were first established. This doomed the effort due to flawed methodology.
By this I mean that no INITIAL testing was done on large groups of totally sober individuals, in various AGE groupings, with various health issues (e.g., overweight individuals, those with prior orthopedic injury or surgery, or those taking prescribed pain medications or anti-anxiety medications.)
So, no BASELINE existed to JUDGE how the dosed drinking driver test subject compared to totally sober people 50 and older, or totally sober men and women who were 50 or more pounds overweight.
This oversight and shortcoming would never pass muster with true research scientists who are not driven by creating SOMETHING in order to get paid. Common sense tells us the answer, whether the two women try to stand on one leg with their arms to their sides, or whether they attempt a few gymnastics on a balance beam. The obese woman is heading to jail, drunk or not!
One of the most important items (for your DUI lawyer) to PROVE “unfairness” is the total omission of any advisement that ALL field sobriety tests are OPTIONAL, VOLUNTARY, and have no bearing on your driver’s license. Additionally, no advisement is given that — at the conclusion of your ATTEMPT to perform the evaluations—you will not be allowed to have any “do-overs” for your earlier, failed performances.
The stated GOAL for standardized field sobriety testing was “to make our highways safer” by removing drunk drivers through utilizing better police training on the proper methods of roadside screening of suspected drunk drivers for alcohol impairment through psycho-physical testing. The end result was to print up a lengthy manual that is handed out to police officers in a 20-hour class.
The officers usually learn perhaps 10 to 15 pages of the 200+ page manual, all focused on how to arrest people who have been drinking alcohol.
These manuals (which have now been re-done and altered over a dozen times since 1984) have NEVER been peer-reviewed, or published in a scientific journal.
This vetting should have been done to get feedback about defects and deficiencies in the police instruction, scoring methodology, and the teaching of the TRUE lack of reliability that these evaluations reveal in the limited statistics that were collected and retained.
Thousands of drunk driving arrests, however, have been and ARE currently being made because of these faulty evaluations. Independent researchers have undertaken an analysis, after many convicted citizens cried “foul” on these bogus tests.
The only thing standing between a conviction for DUI and an acquittal is an experienced, well-trained, savvy criminal defense attorney who is a DUI lawyer and a specialist in fighting field sobriety test evidence.
The biggest and most insurmountable flaw in Dr. Burns’ team’s work is that the sobriety test “battery” was never correlated to any NORM groupings for proving the reliability of the final three field sobriety tests used by Burns and her research team. Moreover, only partial data was retained by the researchers, and (once released) this gave reviewers only partial data for later analysis. The assumption has to be that the unreported numbers were UNFAVORABLE.
These experts have now concluded that non-disclosure of all data makes review of her methodology only partially available, and (therefore) is unconvincing. Other researchers who have tested the three SFSTs found similar “false positive” numbers of 46%, which (as Burns admitted) was “unacceptable.” This is no better than flipping a coin.
True scientists who specialize in statistics, testing, and measurement, and human factors have used words like UNRELIABLE, FRAUD, INCONCLUSIVE, and INCOMPLETE to characterize these tests that have been the basis of millions of DUI arrests.
Cursory training by police officers who erroneously believe that field sobriety test evidence is the best thing since the wheel was invented has led to the false belief that these tests SHOULD be good for evaluating DUI-Drugs, too.
Dozens of federal grants have been awarded to Burns and her cohorts. In today’s dollars, the total grant money is between $4 million and $5 million dollars. No other contractor was “included” because NHTSA had its “resource” for giving the police a tool to BACK UP their questionable DUI-DWI arrests.
THIS is why potential arrestees were never to be told that the evaluations were optional, non-scientific, and would come down to the officer’s best guess. In no way do these roadway tests (eye test, balance test and walk the line test) come close to the 90% or greater reliability of IQ tests, SAT tests, or ACT tests. Reliability means REPEATABLITY, where the same evaluator tests the same subject under the same test conditions, and gets the same result.
Contact an Atlanta DUI Attorney Who Can Help
Atlanta DUI Attorney William C. “Bubba” Head has successfully completed the NHTSA standardized field sobriety test training—the same training that Georgia police officers attend. He has also taken and helped teach student (participant) courses and instructor courses.
Thanks to Mr. Head’s inside look into how these tests are conducted and scored, he can evaluate your case to find a way to challenge your field sobriety tests results, which can lead to a judge throwing out your test results.
For a free analysis of your pending DUI charges, please complete our online case evaluation today.
Call 1-888-DUI-HEAD (1-888-384-4323) or our local Atlanta number (404) 567-5515 anytime day or night.