Law Office of Robert J. Wittmann

I'm a South Jersey general practice attorney, Truman Scholar and former Congressional staffer with a passion for justice. My general practice focuses on civil litigation, family law and municipal court.

STANDARDIZED FIELD SOBRIETY TESTS

 

Over the past 60 years, Field Sobriety Tests of one type or another have been used by police throughout the nation to assist them with DWI investigations. Traditionally, officers have used a wide variety of tests of questionable accuracy and reliability, such as the hand pat, Romberg Balance test, finger-to-nose test, and coin test, not to mention a wide variety of ever changing "distraction/interruption" style tests. Because many of these tests were not developed by skilled, experienced medical professionals, scoring them was often arbitrary and the results greatly varied. As a result, many innocent people were arrested and charged, through no fault of their own.

In 1977, as the public became increasingly concerned with the epidemic of drunk driving, as well as the increased dangers of wrongful conviction (inherent with unscientific tests), the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) published their official manual on the administration and scoring of Standardized Field Sobriety Tests.  Here, they stated that only three tests had a generally accurate rate of predicting intoxication. These were the Horizontal Gaze Nystagmus, Walk & Turn, and One Leg Stand tests. The NHTSA clearly and explicitly stated, though, that these tests would be highly unreliable if they were not administered in strict compliance with official testing rules and procedures.

Understanding the nature, methodology and goals of the Standardized Field Sobriety Tests (SFST) is key, if one wishes to successfully challenge an "observational" DWI.  I shall summarize the nature and weaknesses of each of the SFSTs below.

I. HORIZONTAL GAZE NYSTAGMUS TEST

The Horizontal Gaze Nystagmus Test, or HGN as it is widely called, tests certain involuntary, rhythmic back-and-forth jerking movements of the eyeball which are caused by problems in the oculomotor or vestibular systems. Generally speaking, most sober people have slight nystagmus in their eyes.

When police officers administer the HGN test, they move a pen from side to side in front of a person's head, asking them to keep their eyes on the pen as it moves. Here, the officer is looking for the above-mentioned involuntary jerky movements of the eye.

Although there are three major types of nystagmus, such as pathological nystagmus, and vestibular nystagmus, the most important one is called "neural nystagmus," of which the most important sub-type is called "gaze nystagmus" and there are 4 major variations of Gaze Nystagmus which officers look for when administering the SFSTs. These are:

A. Horizontal Gaze Nystagmus: when the eyes are bouncy when gazing to the side

B. Vertical Gaze Nystagmus:  when the eyes are bouncy when gazing up or down

C. Resting Nystagmus: when the eyes are bouncy when gazing straight ahead

D. End Point Nystagmus: when the eyes are far up, far down, or far to the left and right. In a sense, this happens when the eyes are forced to their muscular limits in any direction. All people exhibit nystagmus when their eyes are pushed to these directional/muscular limits.

When administering the test, for each eye, officers look for three different physical manifestations in the eye, which may indicate intoxication. These are:

 A. the inability of a person to follow, visually, in a smooth way, an object that is moved laterally in front of the person's eyes;

B. the inability to retain focus and the likelihood of jerking of the eyeball when a person has moved his or her eye to the extreme range of peripheral vision; and

C.  the "jerking" of the eyeball beginning before it has moved 45 degrees from forward gaze (State v. Doriguzzi, 334 N.J. Super. 530 (2000)).

Although the HGN test gives the officer important clues sufficient to establish probable cause for an arrest, it cannot be admitted into evidence as a "reliable and accepted indicator of intoxication," pursuant to State v. Doriguzzi, 334 N.J. Super. 530 (2000). This is because there is significant scientific disagreement over whether the 45 degree angle of lateral deviation could create too many false positives, due to the fact that there are many other causes of nystagmus, such as weather conditions, barometric pressure, Benadryl/antihistamines, caffeine, nicotine, aspirin, early-onset glaucoma, influenza, streptococcus infections, vertigo, measles, certain STDs, and various neurological disorders have been proven to show nystagmus as well.

 

II. WALK & TURN/Heel-toe TEST

The walk & turn test (also called the heel-toe test) consists of the Defendant standing with arms at their side while taking 9 heel to toe steps along an imaginary line, turning in a specific way, and then taking another 9 heel-toe steps back to their point of origin, along the same invisible line.

The NHTSA requires that this test be administered on a hard, flat and dry surface free of debris. They also state that the test is not an accurate predictor of intoxication among people who are 65 years of age and older, as well as folks with leg and back problems, or a history of inner-ear impairments, which necessarily impact balance. The test also states that people should not wear high-heels while taking the test.

The test is scored according to the following criteria:

A. Can't keep balance

B. Starts too soon

C.  Stops walking mid-stride

D. Takes the wrong number of steps

E. Improperly turns

F. Misses necessary heel-toe contact between the feet(big gaps between the heel of one foot and the toes of the other)

G. Raises arms for balance while walking

All you need to do is perform poorly on two or more of the above factors in order to fail the test.

III. ONE LEG STAND TEST

This test consists of Defendants standing one a single leg, with their other leg being stiffly raised in front of them, as if they are performing the old Russian "goose-step" march, with the foot being held exactly 6 inches above the pavement. While doing this, they are required to stare at the raised foot and count-out-loudly. The test is to last for 30 seconds.

Like the prior test, it requires a dry, flat, hard surface free of debris. The testmakers state that it should not be given to folks over 65 years old, those who have back or leg problems, or have issues with their middle ear. In addition, the test should not be given to people who are 50 pounds or more overweight, which is interesting, considering the fact thatthe average American is 30 pounds overweight, and that this number is gradually increasing by the year.

The test is scored according to the following criteria:

A. Sways while balancing

B. Uses Arms for balancing

C. Hopping

D. Dropping the foot or lowering the leg.

All you need to do is perform poorly on two or more of the above factors in order to fail the test.

My South Jersey Law Office regularly serves the NJ communities of Bellmawr, Runnemede, Deptford, Westville, Gloucester Township (Blackwood, Glendora, Erial, Sicklerville, Blenheim, Lambs Terrace, Chews Landing, and Hilltop) and Washington Township, (Turnersville, Sewell, Hurffville, Grenloch, CrossKeys, Bunker Hill and Chapel Heights).

If you live in these areas, or any other area of South Jersey and have been charged with DWI/DUI, Refusal to take a breath test, or any other drinking-related infraction, then contact my office immediately for a free consultation.  I treat every client with extra-special care and go over the evidence and facts of their case, in-depth, so that no stone is unturned in their legal case.

Call us for quality, compassionate, and individualized representation: 856-873-3730

 

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.