LEGAL GUIDE
Written by attorney Cory Earl Yager | May 1, 2011

The Bias of "Standardized" Field Sobriety Tests

Police officers want you to attempt roadside sobriety evaluations. This is an evidence collection technique much like swabbing for blood samples at a homicide scene. As a former police officer and DUI cop, my job was to collect evidence and the best evidence of impairment as a result of alcohol is bad performance on field sobriety tests. Your job, upon being stopped and investigated for DUI is to be polite, but to limit any potential evidence the police officer may want to collect to use against you later in court. Field Sobriety Tests are VOLUNTARY, they are highly subjective "tests", and they are almost always used against you in court by the Government's Lawyer. Police Officers want you to try to perform roadside agility or sobriety evaluations because these tests help the police to secure a later conviction in court. Police Officers in Georgia are generally trained to conduct 3 "Standardized Field Sobriety Tests", but also have a myriad of additional "Non-Standardized" tests that are also used. The standardized tests are an eye evaluation called a Horizontal Gaze Nystagmus Evaluation, a Walk and Turn Evaluation (where you walk 9 steps heel to toe, turn 180 degrees, then walk 9 heel to toe steps back), and a one leg stand evaluation (where you stand on one foot and raise the other foot 6 inches from the ground and count 1001, 1002, 1003, ... until the officer tells you to stop. This is a timed 30 second evaluation.) These tests are one size fits all tests and Officers on the street generally do not take into account other factors such as nervousness, muscle fatigue, amount of time a person has been awake. You may also be asked (at the roadside) to give a breath sample into a handheld alcohol device that is also VOLUNTARY. The field sobriety tests are, without a doubt, the greatest source of flawed arrests and faulty convictions in DUI-DWI cases in this nation. Roadside agility and sobriety evaluations are VOLUNTARY in the State of Georgia. You have an absolute right to NOT attempt to perform these agility and medically-created evaluations that are being offered by a law enforcement officer who has only minimal training in many instances. The field sobriety evaluations are NOT scientifically validated to have a high degree of scientific correlation and they have not been sufficiently peer reviewed. Like many things in life, there are too money differences and variations in individuals for these types of tests to be valid for everyone. The Field evaluations are subject to faulty instructions, difficult terrain and lighting, & misinterpretation of clues and cues by minimally trained officers. They are also not construed in a manner that take into account the multitude of differences among people. (Eg: Weight differences, height differences, coordination differences, medical issues, inner ear issues with the vestibular system) Independent researchers have repeatedly documented that standardized field sobriety evaluations were administered or scored incorrectly by actual police officers over 95 % of the time. incorrectly nearly 100% of the time. Dr. J.L. Booker, Ph.D., from TX in 2004 found that in excess of 98% of the officers giving the three NHTSA standardized field sobriety evaluations do at least one of the three "standardized" field evaluations incorrectly in all cases he studied. The NHTSA guidelines for the administration of these tests have always provided that deviation from the administration and scoring guidelines "compromises the validity" of the tests. Troy Walden & Lance Platt, two psychologists (Ph.D level) (also from TX) came to the same conclusion in 2007 after viewing hundreds of video tapes that depicted how the officers were administering and scoring these evaluations. More studies by scientists (Whyte CA, Petrock AM, Rosenberg M) reported in 2009 that the previous assumptions by NHTSA researchers of the onset angle of HGN evidence were substantially incorrect, leading to many false arrests. Dr. M.P. Hlastala et. al., statistically disproved the claims of high reliability of the so-called "Validation Studies" in 2005. Dr. S. Rubenzer reviewed the Hlastala study (making this a peer reviewed study). Courts routinely allow field sobriety exercises to be "vouched for" by police officers during DUI trials. This occurs even when the tests are completely botched by the officer on the side of the roadway. In fact, under current Georgia law, a Government Prosecutor can choose to disavow the officer's NHTSA training (essentially cutting off the defense from pointing out the issues in administration of the tests) and to proceed with the Walk and Turn and the One Leg Stand as observations of a lay person to show impairment. One the side of the road, usually in the middle of the night, there are multiple reasons for a person to have less than perfect performance on the roadside Olympic offered to prove sobriety. You cannot win if you attempt any of these tests. They are all subjective, and the only judge and jury at the scene is the police officer who likely drew a conclusion about your sobriety upon his initial contact with you at the window of your car. If you are lucky, the tests are being audio and video recorded so that you have a defense as to your responses or the adequacy of the testing itself. Even in the best scenario, you can get the tests mostly correct, with good excuses why you were not perfect, and the police officer can use any mistakes he or she "sees" as a reason to arrest you for DUI. The police officer will always make an arrest on the totality of the circumstances. This mean on the totality of what you did wrong and does not give credit for what you did correctly. No one is ever absolutely perfect on these evaluations, especially at 3 A.M., on the side of the road, after you have been awake for a long period of time and you are nervous. VOLUNTARY TESTS ARE JUST THAT - - - THE DECISION IS UP TO YOU. Any submission to the tests allows further evidence collection by the officer for later use in a DUI case that is almost certain to result.

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