Common Misconceptions about the Field Sobriety Test

Interviewer: What would you say is one of the top misconceptions that people have about the standardized field sobriety test?

Is the Test Itself Science-Based?

James Abate: One of the misconceptions is that it is scientific. It’s really not. First of all, it is very dependent on the test being performed properly and none of the variables being adjusted. In fact, the manual states in bold letters that if anyone of the standardized field sobriety test elements is changed, the validity is compromised.

The Validity of the Test Result Is Easily Compromised

But even if the variables are done properly, that the test given correctly is that you’re going to have a 66% chance of showing someone is intoxicated. When most people think of beyond reasonable doubt, they’re not talking about 66%. It falls below the threshold and that means that nearly 3 out of 10 people who are arrested shouldn’t have been arrested based on statistics. It’s also given even after in a really slanted sample pool.

The Tests Are Often Administered Incorrectly

Most of the people who are given the field sobriety are people that the officer thinks may have been drinking. It’s questionable whether the officers give the test correctly. Another misconception is with doing the HTN test. That’s a test where they take the pen or stylus, they hold it in front of your eyes and move it back and forth and track your eye movements. It’s questionable whether that test is performed properly.

Interviewer: Why is that?

James Abate: Oftentimes the officers are supposed to start the test at the center of your line of vision, take 4 seconds and move to the left, hold it for 4 seconds, and move back to the center for 4 seconds. They then move to the right for 4 seconds, hold for 4 seconds then move back to the center again for 4 seconds.

The HGN Test May Be Administered Too Quickly

It takes 32 seconds just to set the test up. I see officers who give the complete test in about 45 seconds. Clearly, they’re going too fast. Sometimes it’s difficult to figure that out because the officer or trooper will invariably park their vehicle behind the driver’s vehicle and then take the driver in front of his vehicle to take the test. By doing that he’s cutting off the best angle of the video on the car.

But they get a little lazy with that and we can actually listen and figure out when they’re starting the test and when they’re finishing it. We can time it ourselves and we try to figure out how much time they took the test. They think we can’t see them but we can still listen to the audio recording.

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The Walk-and-Turn Test

Interviewer: Let’s talk about the walk-and-turn test.  What are some ways that test can be misinterpreted?

James Abate: It’s, you’re supposed to walk 9 steps, turn and come 9 steps back. You’re supposed to keep your hands at your side. The issues with that test come into play with the distance between the heel and the toe. What if the person starts to sway? What if they are using their holding their hand out for balance?

The Instructions for This Test Can Be Easily Misinterpreted

It is really about whether the officer is giving the proper directions on that test. Unless somebody completely falls down, they’re not going to, in my mind, be failing the test. The officer could assign what I call cue points to the taking of the test—but they are not permitted to make a decision based on that one test.

They’re supposed to evaluate it. I am looking here at the book and it says that the test should be based on a designated straight line and should be conducted on a reasonably dry, hard, level non-slippery surface. There need to be sufficient room for you to do the 9 heel-to-toe steps.

Interviewer: Is there a particular standard that the police officer will have as far as like the straight line goes?

James Abate: Yes that does happen when the officer is looking for you to make a deviation from the line. When I’m looking at somebody and they’re at the side of the highway and they are curving the line and it’s on the video I have something with which to really cross-examine the officer.

Officers are supposed to tell you once you start walking not to stop until you complete the test. Somebody may take a break in the middle of it or stop when they get to the top of the 9 steps and the officer holds it against them but he didn’t tell them anything. He didn’t give them that instruction.

The One-Legged Stand Test

Interviewer: The other question I had was about the one-legged stand. What’s the exact rule for that one?

James Abate: The officer will tell you to stand with your feet together, arms down at your side and they are supposed to demonstrate. Then he’s going to tell you “Don’t start to perform the test until I tell you.” He will check that you understand it so far and then he is going to demonstrate the test.

Counting Aloud Is Actually a Component of the Test

He is going to tell you to raise either leg with the foot approximately 6 inches off the ground while keeping the raised foot parallel to the ground then he’s going to demonstrate that again. He is supposed to tell you, you must keep both legs straight arms at your side. Then the difficult part comes, the questionable part comes, while holding that position you are supposed to count out loud 1, 1000, 1, 1001, 1, 1002, 1, 1003…until told to stop.

You are supposed to keep your arms at your sides at all times and the reason I bring up the 1 1000 is there are people who would go 1 1001, 1, 1003 and they don’t realize that the officer’s testing them on their ability to count as well. If the officer says count off from 1, 1001 to 1, 1010, the driver might think, “I am going to show him how good I am,” and go to 1, 1030 and the officer writes down that they can’t follow instructions.

It is not as if they deliberately were not following the instructions—they were simply trying to demonstrate how well they had this down.

One of the things the officers is looking for whether you’re swaying while balancing, whether you’re using your arms for balancing, whether you’re hopping, and whether you put your foot down.

In This Test, the Officer May Give an Instruction That Invalidates the Results

Interviewer: I hear sometimes that the police officer will say, “It’s OK, you can go ahead and put your foot down if you need to,” and that person does put their foot down, it still counts against them.

James Abate: Again, it’s about the instructions. If you’re told you can do something and you do it that invalidates the whole test. There’s nothing in the training, there’s nothing in the NHTSA manual which will permit an officer to tell someone that they can put their foot down.

Now, the officer’s always able to discontinue the test for safety reasons, if he thinks the person is going to fall or they could hurt themselves then he has to stop the test. But at that point he’s made this decision that this person be placed under arrest. If he tells you, you can put your foot down, there’s no reason you shouldn’t be able to put your foot down and that will invalidate his administration of the test. Now it could still be used as for probable cause, but at that point it’s no longer admissible as evidence that the driver was intoxicated.

Because of a Number of Factors, the Test Results Can Be Open to Different Interpretations

Interviewer: Do the officers have any discretion about these tests if the environment just isn’t conducive to a good result?

James Abate: As I said it’s a very frightening experience and there are tons of distractions out there between from the officer telling you what to do, to the 18-wheeler going down the road right pass the vehicle, to the cold, to the nervousness you are experiencing. Those maybe valid explanations for why you were going to not be able to perform the test. In addition, there are people who just can’t take the test due to one or another factor.

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