Web Blast Extra: Cars And Crashes
From The March/April 2010 Car And Crashes Column
By Suzi Huntington
Hopefully you now have a better understanding of Horizontal Gaze Nystagmus and how critical it is in a DUI evaluation. While I firmly believe it is the most important piece of evidence showing someone’s intoxication, it’s just one part of the larger equation. It’s the totality of circumstances; the poor driving you observed, the odor of alcohol, the bloodshot, watery and droopy eyes, the slurred speech, fumbling for or missing the driver license in plain view in the wallet and all the big and small mistakes made while trying to perform the field sobriety tests.
Before 1977 agencies across the country used a hodge-podge of different tests and there was no discernable data that could be collected to show they were effective in determining impairment. The National Highway Traffic Safety Administration (NHTSA) commissioned a study in California to find the best methods of testing to detect impaired drivers. By 1981 what they found is three tests — Walk and Turn, One Leg Stand and HGN — when used together, had an 83-percent accuracy rate in determining a subject’s BAC at .10% or higher. The efficacy of these three tests has been studied numerous times since and the results keep proving the original results and most courts accept this data.
Standardized Field Sobriety Tests
You may have noticed or maybe you have personal experience from your younger, wilder party days; most coordination tests can be practiced. And most people who practice the tests think they’re pretty good at them — even when they’re drunk. But what you may not realize is you’re not looking for the blatant failure in a performance. You’re looking for the very subtle mistakes and wavers. The guy who can’t even stand up or who’s peed in his pants is a give-me and gets put through the tests more for entertainment value than for trying to convince you he’s intoxicated for the purposes of driving which is the legal standard for DUI. You’re not trying to prove the driver is drunk; Captain Obvious has no purpose here.
“I want you to stand here with your feet together and your hands down at your sides. You need to stay in that position while I explain and demonstrate the test to you. Once I’ve explained and demonstrated the test I’ll ask if you understand the test. If you don’t have any questions, I’ll let you begin the test. Don’t start until I tell you to.” Some of the subtle errors you want to look for include the subject’s inability to follow simple, basic instructions. You’re job is to tell the guy to stand still, pay attention to the instructions you’ll give and demonstrate and not start the test until told to. Intoxicated people can’t do this. They’ll squirm around like 6-year olds who need to go potty. They’ll start tests before you’ve finished with the instructions or demonstration and then perform the tests incorrectly. The inability to follow the instructions is a very subtle cue of intoxication missed by most patrol cops.
Walk And Turn
You’ll have the subject stand with his left foot directly in front of the right, touching heel to toe, hands down at his sides while you explain and demonstrate the test. You’ll then tell the subject he’ll take nine heel-to-toe steps in a straight line, pivot around, leaving his left foot on the line, and take nine heel-to-toe steps back to where he started. The test is only done moving forward, nobody has to walk backwards. You should try to administer this test on relatively level ground and if the subject is wearing shoes that would make performing the test difficult have them remove their shoes.
Things you’re looking for that might indicate impairment include the subject steps out of the starting position or decides to start the test before you’ve finished giving the instructions and demonstration. Maybe they have to pause for several seconds to remember how many steps they’ve taken, they step off the line or their steps aren’t heel-to-toe. Do they look like they’re playing Sky Pilot — holding their arms more than six inches away from their sides in an effort to keep their balance? Do they teeter and wobble their way around the pivot? Do they actually pivot, or perform some other Saturday Night Fever disco-spin? They may flub just a few things and only very slightly; it’s your job to make note of each of those little flubs. Don’t forget to make note of the type of shoes the subject was wearing for the test or if they were barefoot.
One Leg Stand
Here, you’ll have the subject standing with his feet together, hands down at his side while you explain and demonstrate the test. When you tell him to begin, you’ll have him raise either his right or left foot (the choice is his) approximately 6 inches off the ground, straight in front of him. He’ll need to hold his leg up and count from 1,001 to 1,030 before putting his foot down. Seems pretty cut and dry, but not when you’re intoxicated. And before you start making excuses about how you can’t do this even sober, I could and still can demonstrate this test in court, wearing 4-inch heels.
Indicators of intoxication in this test include the subject starting the test before you’ve told him to or he sways while trying to keep his balance (either from side to side, front to back or in a circular motion). Is he playing Sky Pilot again? Maybe he looks like he’s trying an interesting version of aerobics, either tapping his raised foot on the ground numerous times or hopping around on the other foot. Listen to the count, it’s supposed to be aloud and all the numbers count between 1,001 and 1,030. Any discrepancies, no matter how slight should be noted and make sure you document which foot the subject raised.
While NHTSA and the courts agree the Walk and Turn, One Leg Stand and HGN are the three most effective, and standardized, methods of determining if a subject is impaired, it doesn’t mean you have to stop there. My agency, and the other agencies in our region, used several other tests to gauge for intoxication. We had subjects say the alphabet, without singing or rhyming it; they were required to say each letter of the alphabet clearly and distinctly. We also administered a counting test where subjects were told to count backwards from 75 to 55. Lastly, we had subjects perform a standing test. When told to begin, subjects were required to shut their eyes, tilt their head back and hold the position for 30 seconds. The subjects were required to stand with their feet together and their hands at their sides during these tests too.
Indicators we looked for during these tests were for the subject’s inability to stand still, moving their feet or arms to maintain balance. We looked for swaying, particularly in the standing test. Although it was destined to be butchered by people singing out of key, the ABC song was a common occurrence. The counting test proved problematic in a couple of ways; people would either start counting forward in their haste to do the test quickly, while others would very slowly and methodically get from 75 to 55, but then keep going … until they were finally told to stop and immediately asked if they remembered what number they were told to stop. Oops.
As you will see, there are many small, subtle mistakes you have to look for when administering SFSTs. Each individual mistake may seem like nothing, but when you add up all the subtle mistakes and include them with everything else you’ve observed, you’ve got a big steaming pile of DUI in front of you.
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