Standardized Field Sobriety Tests: Voluntary, Unfair, And Designed For Trickery.Jonathan Rands
In 2006 I attended the 24 hour course that all law enforcement officer’s attend to teach them how to “Detect DUI’s.” The training was invaluable. I have used it dozens of times to demystify and deconstruct the process for clients and juries alike. This month I attended the full course again. A refresher course would have sufficed, or perhaps I could have done the instructor course thus allowing me to teach others, but I choose to refresh with the entire...
In 2006 I attended the 24 hour course that all law enforcement officer’s attend to teach them how to "Detect DUI’s." The training was invaluable. I have used it dozens of times to demystify and deconstruct the process for clients and juries alike.
This month I attended the full course again. A refresher course would have sufficed, or perhaps I could have done the instructor course thus allowing me to teach others, but I choose to refresh with the entire course. As I spend my 24 hours immersed in the curriculum I saw the course differently the second time around for what it really was. A course designed upon some generic studies that "appear" to validate the roadside tests, but really it is a course designed to instill into the minds of law enforcement that almost any behavior is indicative of a DUI. In fact, there is a published paper on the issue that concludes these tests are designed for failure.
The course breaks down as follows: observation of vehicle in motion, personal contact and pre-arrest screening. From the moment an officer sees a vehicle he is trained to believe it is a DUI, he is trained to understand that there are 25 “clues” of driving that are said to reliably indicate that the driver is DUI. They are told that the accuracy of these driving clues is somewhere between 50-100 percent. The reality is, however, these are simply lazy driving habits that person does perfectly sober, or when distracted by a cell phone, radio, or passengers. As a result the officer is trained to prejudice his mind, his observations, and interactions with the driver rather make objective observations that lead to a conclusion that is not already predisposed. Despite the clear objectives of the course that state this phase is about answering whether “the vehicle should be stopped,” the training clearly encourages a stop for any reason at all, with a predisposition to believe the officer is dealing with a DUI.
The officer is trained to make contact and make decision based upon contact. The training goal at this stage is based upon what is seen, heard, and smelled “do I have the driver exit the vehicle?” What is said by the driver, how the driver acts, and all other variables are added to the mix, but what s/he Sees, Smells, and Hears, is what they are to rely upon. Guess what? Almost everything said when coupled with the admission to drinking or the odor of alcohol is labeled as a reliable clue of “possible intoxication”. However, the training emphasis minimization of what was done right and only focusing on what was done wrong in the officer’s opinion, because the Detection has but only a singular goal in mind; DUI arrest based upon less than reliable facts.
Prey on Driver’s Nervousness
Officers are trained to prey upon a driver’s nervousness and deference to their apparent authority. Upon contact the officer is trained to confuse, distract, and in essence “bully” a driver; the officer is trained to ask simple but intentionally distracting questions: questions by the way that a Washington driver is under no obligation to answer. Training begins seeking the driver’s typical papers that are not always easily found, while the driver searches the training encourages officers to interrupt and distract a driver. For instance, the materials specifically directs an officer to ask odd questions during one task, to start another, and yet another, never really caring what the answer is, but only to establish confusion, to be able to point to facts that they can rely on to justify an exit order. Funny thing is, officer’s will often repeat the same question and expect to get a different answer, yet, when a person repeats the answer, the observation factored into their justification for exit, or arrest is "repetitive speech!" This all plays into the course objective of answering the roadside question presented of "should I have the driver exit," yet at the training to this point focuses on issues that lead up to this goal, as well as the next.
By the time the driver is out of the car, the third phase sums it all up, as it is called "Pre-Arrest Screening" Really? Yes, really, the phase itself implies the inevitable just like the training as a whole. Pre-Arrest screening is the stage of Standardized Sobriety Tests that are in line with the training curriculum, confuse the mind and place a person in the most unbalanced positions where natural reactions become clues to base an arrest upon and in cases where the breath test is under the legal limit or refused, have the state prosecute a person for having failed these tests. Furthermore, the tests are not to be administered upon certain people (over age 65, or 50 lbs overweight), and for those that have some actual physical disability (hip arthritis, injury, inner ear condition, etc.) the officer is trained to assure the person that the issue will be "taken into consideration." The problem is this: there is no training that teaches or even addresses what consideration can or should be made. As result the officer’s are trained to lie to the subject and count clues that when totaled tell them to arrest, but without any criteria to separate the clues due to physical injury/impairment from that of possible alcohol impairment.
The tests themselves conceptually are not that hard, but the reality is it takes students of the tests 16 of the 24 hour course to learn how to administer them and also learn the tricks they don’t teach the driver to make the tests easier; easier to demonstrate for a subject and jury. The officer may need to demonstrate the tests in court, and failing them in front of a jury would not be the type of “convincing” evidence the course speaks to. As a result, they are taught some tricks to avoid such embarrassment. I have discussed these tests in detail on my site but a refresher is indeed overdue.
Horizontal Gaze Nystagmus (HGN)
Otherwise known as the eye test, this is a the only test that does not require some actual physical agility, and while the test requires a subject to follow a pen with their eyes, the test can be challenging as the sanding position is feet together and hands at the sides and the person’s gaze to set look up and follow a moving visible point. Anyone who has stood at heights, the surest way to fall down is look up and the passing sky will cause you to lose your balance. The HGN test is typically done at night, and is relatively easy as all a driver needs to do is to follow a pen. However, the training has the focus point of your eyes that a driver is to follow “slightly” above eye level thereby forcing you to look up. The test is said to be accurate, but the practical reality is, it does only one thing: confirms that the person has consumed alcohol. Student of the course are taught a formula, where the variable plugged into the formula is nothing more than a guess.
The Walk And Turn (WAT)
The WAT instructions are intensive and “wordy”, but they are designed to sound straightforward. First, if there is no designated line available like those painted in a parking lot, the person is told to “imagine” a line and the told to place their left foot on the line that does not exist, and then place their right foot in front of the left in the same “line” touching heel to toe. Then place your arms and hands at their sides and to NOT move from this position, and to not start the test until told to do. The instructions take about 30 seconds if done properly and slowly. They are as follows: When I tell you to start, walk down the line (real or imaginary) taking 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back. The officer then shows how to take these steps, and then is also required to demonstrate the turn while verbalizing the instructions. When you get to the 9th step, leave your front foot planted on the line and take a series of small steps as you turn around and then begin walking back down the line touching heel-to-toe. As you are walking keep your hands at your side, look down at your feet and count each step out loud. Once you begin this test do not stop walking until you are done with this test. Do you understand? When I tell you to begin, count your first step as 1. You may begin.
As you sit and read this feel free to assume the heel to toe position and see how long you can stand there while the instructions are given (the officer can stand in this position longer than most because he practices this test, and is taught that a slight shifting and relaxing of the legs allows good balance control). Questions are permitted but they are answered with the same strict language originally given. In essence a driver is told to walk in a manner that produces a natural reaction to lift arms, walk slowly such that balance is impaired from nothing more than the test requirements.
What They’re Looking For
When you read the instructions for the final test, it is clear to see that the natural reaction of lifting one’s arms is warned about 3 times and this test it is mentioned 1 time. The officer is on the lookout for 8 possible things a person may do “wrong.” If the person steps out of the instruction stance they get a clue/demerit, if the officer uses halting speech during the instructions it implies permission to proceed, and then the clue is “starts to soon.” The test is not yet even begun, but 2 clues of a possible 8 to look for gives the officer the threshold point to consider this test not passed. The remaining clues are, stops walking, steps off line, misses heel to toe (more than ½ inch), raises arms (more than 6inches), improper turn, and improper number of steps.
The math on this test is simple, a person takes 18 steps and thus has 18 opportunities to get a possible 6 remaining clues (assuming they stood properly during instructions). 18 x 6 = 108 opportunities to do something wrong. Assuming the person is wearing flip flops during the test and therefore does not properly touch heel to toe on 1 step, and when that happens their balance is momentarily thrown and they raise their arms more than 6 inches (6 1/4 is too much). They now have 2 clues and have failed the test, despite the fact that they did 106 of 108 things correct and therefore scored 98%! When have you ever taken a test where your were told that that anything less than 99% compliance meant you failed? In fact, the necessary score to learn that deems a student proficient and competent in these “sobriety tests” 80%! Enough said about this unfair test,
One Leg Stand (OLS)
The OLS, is a test where the officer instructs driver to stand on one leg, not because it has anything to do with driving, or even the counting they require, but because standing on one leg is rarely something anyone can do for 30 seconds without violating the criteria. This is also another test where the officer does not share a trick with the driver (nor is this information shared with a jury). Remember, this is the final phase called “pre-arrest screening.” The training and the goal objective makes it very clear that the screening is just a formality for the inevitable arrest, so why would an officer share the trick with anyone. Again, being overweight or over the age of 65 precludes this test from being offered, and if there are any injuries or illness they will NOT be considered despite the officer’s assurances because such training for these does NOT exist.
The One Leg Stand is instructed as followed: Stand with your feet together and hands and arms at your side. Remain in this position until I tell you to start. Do you understand? When I tell you to start, I want you to lift one leg, either leg, raising your foot off the ground approximately 6 inches and keep your foot parallel to the ground (the officer then demonstrates). You must keep both your legs straight during the test and your arms at your side. While maintaining this position, I want you count out loud like this (demo one-thousand and one, one-thousand and tw0, one thousand and three, etc.). Your arms must remain at your sides at all times and you must watch your raised foot during the test. Do you understand? The test may begin. The test is timed and the driver is expected to stand for 30 seconds with one foot off the ground counting out loud. At no point during the test does the officer share the fact with the driver, nor the jury, nor the judge, that if you bend the knee of the leg stood upon balancing is much easier. The things the officer grades a driver on is whether they sway, they lift their arms, put the foot down, or hop in an effort to keep balance. Again, none of these things are likely to happen if the knee is slightly bent. If any 2 of these 4 things is seen, the test is considered not passed, despite a 50% completion.
This third and final test completes the “Pre-Arrest Screening.” The only person who decides what is seen and marked as clue is the officer, and since he is screening you for an arrest you can bet he will see something. In every DUI trial I have ever conducted it is inevitable that the officer testifies that he administers these tests hundreds, if not thousands of times and not everyone he “screens” with these tests is arrested. In my opinion and experience that is simply not true. If it were true, I would not regularly represent people who provide a breath sample of less than .08, and currently, as low as .04! The breath sample after the fact is proof positive that these tests are designed for failure, these tests are a very effective tool to achieve their purpose: “Pre-Arrest Screening.
Field Sobriety Tests Require a Warrant or Driver Permission
In Washington these tests are considered a search; therefore they require a warrant to achieve such a search, or the driver’s permission to conduct this search. Furthermore, they are voluntary. Voluntary means that there are no consequences to refusing to volunteer. However, in a suspected DUI stop, the refusal to do the tests leads to an immediate arrest. A decision to do the tests leads to the same result. In my opinion, these tests should be politely declined and then a driver should brace themselves for an arrest.
As it can be seen, there is a specific philosophy to these tests, and to the untrained observer or even a jury member, the officer will present them in a scientific manner, and in a manner of fairness. Unless your defense attorney has gone through the course, or even been qualified as an instructor of the course, the problems with the test, the unfairness of the tests, and their hidden design objectives will not be exposed.