Almost every police officer in Columbus, Ohio is trained in the administration of Standardized Field Sobriety Tests (SFSTs). These tests were designed to help Columbus officers guess if the person being tested will have a BAC over the legal limit. The officer looks for certain “clues,” and if the officer observes the appropriate number of clues then the person has failed that test. A person’s poor performance on one or more of the tests bolsters the officer’s decision to arrest and can be used as evidence at trial. While many people debate the accuracy and reliability of these “tests,” they can be used as evidence against you if the officer administered the test to you in accordance with the national standards developed by the National Highway Traffic Safety Administration (NHTSA). If you have been arrested and charged with DUI and had Field Sobriety Tests administered to you, it is critical that you contact a Columbus DUI lawyer from Koenig & Long to assist you in defending your case.
Ohio recognizes three SFSTs: 1) the Horizontal Gaze Nystagmus (HGN); 2) the Walk and Turn (WAT); and 3) the One Leg Stand (OLS). Officers are trained that if they do not administer these tests in strict compliance with the manual, the tests are definitely not reliable. Ohio law, even though the training requires strict compliance, allows these tests to be admitted against you if the officer “substantially” complied with the training. Because “substantial compliance” is a lesser standard than “strict compliance” it is critical that you have an OVI defense attorney who has the experience and training to look for every flaw in the officer’s administration of the SFSTs.
About Field Sobriety Tests
The National Highway Traffic Safety Administration has developed standardized procedures for the administration of the three FSTs which NHTSA considers the most reliable. These standardized FSTs (SFSTs) are taught to and used by police officers across the country. The SFSTs are designed to be used by police officers to establish probable cause to arrest individuals who are under suspicion of driving under the influence and to support the administration of a chemical test that measures a person’s blood alcohol content (BAC). As direct, independent evidence of intoxication, however, SFSTs are extremely unreliable and have an immense margin of error. Furthermore, individual officers often administer the tests differently or under non-ideal testing circumstances, further reducing their reliability.
The NHTSA police officer training course separates the typical OVI investigation into three “phases”. These are (1) Vehicle in Motion, (2) Personal Contact, and; (3) Pre-Arrest Screening. The SFST’s are administered during phase three as part of the pre-arrest screening, and include only the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT), and the One-Leg Stand (OLS).
Our Columbus lawyers have specialized training in the administration of the SFSTs from a nationally recognized DUI and OVI expert, Tony Corroto, who we have also used as an expert witness in selected cases where field sobriety tests were improperly performed.
HORIZONTAL GAZE NYSTAGMUS
“Horizontal Gaze Nystagmus” is an involuntary jerking of the eyes as the eyes gaze to the side. This jerking is what the officer was looking for when he/she told you at the roadside “I am going to check your eyes”.
In administering this test, the officer was looking for three clues:
- Lack of smooth pursuit
- Distinct and sustained nystagmus at maximum deviation
- Onset of nystagmus prior to 45 degrees
If the test had been appropriately administered, the officer would have begun by asking you to stand with your feet together, and arms at your side. The officer should then instruct you to remove your glasses if you are wearing any and ask you if you are wearing contact lenses if you are not. The officer will then instruct you as follows:
- “I am going to check your eyes.”
- “Keep your head still and follow this stimulus with your eyes only.”
- “Keep following the stimulus with your eyes until I tell you to stop.”
The stimulus is usually a pen, but officers are allowed to use their finger as well. The officer then checks you for signs of medical impairment. They do this by checking that your pupils are the same size, by checking whether there is any nystagmus while your eyes are resting and looking straight ahead, and by checking your eyes for equal tracking. When checking for equal tracking, the officer is required to position the stimulus 12-15 inches from your nose and slightly above eye level. The officer then moves the stimulus smoothly across your entire field of vision. If the officer observes unequal pupil size, resting nystagmus, or unequal tracking, then the chance of medical disorders or injuries causing nystagmus is present.
The officer then checks your eyes for “lack of smooth pursuit” (The officer is looking for the involuntary jerking as your eyes move from side to side). The officer must move the stimulus smoothly from the center of your field of vision to the side as far as it can go, starting with the left eye and following back across to check your right eye. It should take two seconds out and two seconds back for each eye. The officer then must repeat this procedure for each eye.
In the next part of the test, the officer is looking for “distinct and sustained nystagmus at maximum deviation”. (Maximum deviation occurs when the eye is brought all the way out toward the shoulder, and no white is visible at the outside of the eye). Starting with your left eye, the officer should move the stimulus to the side until your eye has gone as far as it can go or maximum deviation. The officer then must hold the stimulus at that maximum deviation for at least four seconds, checking for “distinct and sustained nystagmus.” The officer then moves the stimulus all the way across your face to check your right eye. The office must then repeat this procedure for each eye.
Next, the officer should have checked for onset of nystagmus prior to 45 degrees. The officer again begins with your left eye, and moves the stimulus from the center toward your shoulder at a speed that should take about four seconds. The officer is watching your eye for any sign of jerking before the stimulus reaches 45 degrees or about your shoulder. If the officer observes any jerking he is to stop moving the stimulus and verify that your eye is jerking. The officer then checks your right eye and then repeats this procedure for each eye.
A common mistake that officers make when administering this test is moving the stimulus too fast. By moving the stimulus too fast, the officer is not really checking for nystagmus, but is merely going through the motions before claiming that you failed. For example, when checking for distinct and sustained nystagmus at maximum deviation, the officer should expect some jerking of your eye initially, and that it is the presence of alcohol in your system that makes the eye continue to jerk for the full four seconds that it is held at maximum deviation. By moving through that phase of the test too quickly, the reliability of the officer’s observations is in doubt. Another common mistake that officer’s make is having you face the cruiser while the emergency or flashing lights are still on. The flashing lights can cause your eyes to involuntarily jerk, so the test is unreliable when administered under those conditions.
WALK AND TURN
When properly administered, this test is composed of two stages, the instruction stage and the walking stage. As with the HGN, there is a very specific protocol that officer should have followed in administering both stages of this test. During the instruction stage, you should have been instructed as follows:
Initial Positioning and Verbal Instructions:
- Place your left foot on the line (demonstrate).
- Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot (demonstrate).
- Place your arms down at your sides (demonstrate).
- Maintain this position until I have completed the instructions. Do not start to walk until told to do so.
- Do you understand the instructions so far?
Demonstrations and Instructions for the Walking Stage
Once you indicated that you understood, the officer should have instructed you to walk nine heel-to-toe steps forward, and then turn keeping your lead foot on the line and taking several small steps with your other foot, then walking nine heel-to-toe steps back. The officer should demonstrate by taking three heel-to-toe steps, turning, and taking three heel-to-toe steps back. The officer should then have instructed you to keep your arms at your sides, watch your feet at all times, and to count your steps out loud. The officer should also have told you that once you begin walking to not stop until you have completed the test. The officer must then ask you if you understand.
Walk and Turn Test Clues
According to NHTSA, there are eight visual clues that the officer looks for, and if he/she observes at least two of the eight, you will be considered to have failed the test.
- Cannot keep balance while listening to the instructions – this means that you cannot maintain the heel-to-toe position throughout the instructions. Your feet must actually break apart to count this clue. This does not include swaying or using your arms for balance.
- Starts before the instructions are finished.
- Stops while walking – this does not including merely slowing down or walking slowing, but requires a pause for several seconds before taking the next step.
- Doesn’t touch heel to toe.
- Steps off the line – this requires your foot to have gone entirely off the line.
- Uses arms for balance – this requires that you raise your arm more than six inches from your side.
- Improper turn (or loses balance on turn)
- Wrong number of steps
A common mistake that most officers make is not giving the instructions correctly, and then counting “mistakes” when the person fails to do something they were not told to do in the first place. This test does not require a “real” line for you to walk, but it should be conducted on a reasonably dry, level, and non-slippery surface. Often these tests are done under less than ideal circumstances, but sometimes the conditions are so poor that the test loses any reliability it may have had.
ONE LEG STAND
When properly administered, this test is also composed of two stages, the instruction stage and the balance and counting stage. As with the HGN and WAT, the OLS also has a very specific protocol that officer is to follow in administering both stages of this test. During the instruction stage, you should have been instructed as follows:
Initial Positioning and Verbal Instructions
- Stand with feet together and your arms down at your sides (demonstrate).
- Do not start to perform until told to do so.
- Do you understand the instructions so far?
Once you indicated that you understood, the officer should next have instructed:
Balance and Counting Stage:
- When I tell you to start, raise one leg, either leg;
- With your foot approximately six inches off the ground, foot parallel to the ground (demonstrate);
- Count out loud in the following manner: 1001, 1002, 1003, and so on, until told to stop;
- Keep your arms at your sides at all times and keep watching the raised foot;
- Do you understand?
(Note: It is important for the officer to time the 30 second count for the test, i.e., during the proper administration, the officer should have timed you during the balance and counting stage to see if you could hold your foot in this position for 30 seconds).
One Leg Stand Test Clues
According to NHTSA, there are four visual clues that the officer looks for, and if he/she observes at least two of the four, you will be considered to have failed the test. The four test clues are:
- Sways while balancing
- Uses arms to balance
- Puts foot down
It is a common mistake for officers to require you to count until 1030, even if that requires more than thirty seconds to count that high. This is a problem because the research shows that most people, even those that have not been drinking, have difficulty maintaining that position after thirty seconds. That is why the officer is required to check track of time and not to go by the count of the person taking the test. Experienced officers will also try to take advantage of the test conditions to your disadvantage. This can be done by having you face up a slight grade in the road, which would require you to raise your foot higher, relative to your body, than six inches. This creates an unfair testing condition that can nullify the reliability of the test.
Law enforcement agencies, prosecutors, judges, and even legislatures support the claim that these FSTs are based on reliable scientific principles. However, these “tests” have no real basis in science and are often useless and misleading in DUI cases.
The investigating officer has usually made the decision whether there will be an arrest after the first few seconds at the driver’s window. The real purpose of the FSTs is to gather evidence against the driver, not to determine probable cause to arrest.
Because the officer has already made up his mind, before he administers the FSTs, his subjective determination of whether the person has passed or failed the tests is subject to doubt. It’s common to human experience that people will see what they expect to see, so if the officer expects to see “nystagmus” (the involuntary movement of a person’s eyes) during the horizontal gaze test, he will.
Not only is the officer expecting to see failure, but the conditions under which the FSTs are conducted are far less than optimal and are often contributing factors in “failed” tests. These tests are conducted on the side of the road, often late at night, where the driver is subject to the weather, passing cars, flashing lights, fatigue, anxiety, embarrassment, and ultimately trying to perform some unfamiliar exercises under the watchful gaze of a uniformed police officer.
Expect failure? Absolutely.
If you have been arrested and charged with DUI or OVI, and had Field Sobriety Tests administered to you, contact a Columbus DUI Defense Attorney from our firm at once.