Law Offices of

JOSEPH HENNESSEY

Committed to defending those arrested for drunk driving.

44 Front Street, 2nd Floor
Ashland, MA 01721
ph: 508-881-9500
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Field Sobriety Tests are not accurate!!! So do not take them!!

The National Highway Traffic Safety Administration (NHTSA) has developed three tests that are used by the police in developing probable cause to arrest you. My first suggestion would be to decline to submit to any test and refuse to answer any questions when asked where you are coming from and how much you had to drink.

First of all, field sobriety tests are designed to fail. As a former police officer trained by NHTSA we were trained to give a test that most sober people will fail. Even the NHTSA state in their own training manuals associated with FSTs that the tests are not accurate. Studies by the NHTSA have determined the walk-and-turn test to be only 68% accurate, and the one-leg stand test is only 65% accurate. The tests were not validated for people with medical conditions, injuries, 65 years or older, and 50 pounds or greater overweight. If you have any medical condition, injury, are 65 years or older or 50 pounds overweight, DO NOT TAKE THE TEST because you will fail.

The officer will administer one or more field sobriety tests. FSTs are "divided attention tests" that test the person’s ability to perform the type of mental and physical multitasking that is required to operate an automobile.

There are only three tests that are accepted within the courts in Massachusetts and are also the only tests approved by NHTSA:

horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction. This test is only admissible in court if administered by a qualified expert. There are only a few police officers in the Commonwealth that are qualified as experts. DO NOT SUBMIT TO THIS TEST.

walk-and-turn (heel to toe) is a test where you are asked to walk in a straight line touching your heel to your toe. This test is designed to measure a person's ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks. Do not submit to this test. 68% accuracy in proving someone is impaired is not an accurate test. 68% is a D.

one-leg-stand. The person is asked to raise one leg off the ground 6 inches and count to 30 (one one thousand, two one thousand). How often do you count in that manner. Placing your foot down at 29 one thousand is a failed test. Pulling your hands from your side is a failed test even if you fully counted. This test is only 65% accurate. Again, a D.

According to original studies conducted by NHTSA, these tests are not designed to detect impairment, but rather give a probability that a driver is at or a above a 0.08% BAC. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study of the accuracy of FSTs. Tapes of individuals performing 6 field sobriety tests were shown to police officers. The officers were asked to decide which of the test subjects had too much to drink and were not capable to drive. Each of the test subjects had a blood alcohol concentration of .00. The police officers gave their opinion that 46% of the test subjects were impaired and to capable of driving a car safely. This study showed the possible inaccuracy of FSTs.

Most police officers now use a small device called a PBT (preliminary breath test) to aid in their decision to arrest someone. The tests are not admissible in court. Even though the test is not admissible, DO NOT TAKE THIS TEST. Remember, it’s only purpose is to develop probable cause to arrest. The tests are not accurate.

What is the Heel to Toe Test?

In this test, the officer will ask you to imagine a straight line and walk nine paces in one direction, touching your heel to your toe, with your arms at your side, as you count aloud. In many cases, the officer is scoring your performance based on the wrong criteria. Worse yet, many officers do not even create the proper testing environment before asking you to perform the test. If the proper conditions were not present then passing this test is very difficult. In fact, these tests are designed so that you will fail.

The officer should give you this test on level ground that is solid, dry, and not prone to slipping. The officer should also take into account your weight, as people who are overweight may not be able to perform the test, based upon their weight alone. Also, many people with eye or ear problems may have trouble balancing when walking, as abnormalities with the eyes can create depth perception problems and ear problems can cause balance problems, as well. I have yet to find a case where the police officer will ask if you have problems with your ears or your eyes.

The officer should also make a clear line in order for you to attempt to follow it; if you were asked to follow an imaginary line on the ground, there is no real way of determining whether the "line" you walked was straight or not. Yet, the officer is grading your performance on walking a line that does not exist. This sort of requirement is improper and against the National standards for the proper administration of the test. Please note that according to the officer’s training manual, the test is not considered valid if it is not conducted by the required method as approved by the National Highway Traffic Safety Administration.

Was there clear lighting in the area you were asked to perform the heel to toe test? If not, your grading may not reflect the fact that your visibility was skewed. It may also fail to account for the officer's limited sight when grading your test. Were there cars passing by that would cause you to lose balance? Were pedestrians nearby and unfairly distracting you when you attempted to walk the line? Did the strobe lights from the officer's vehicle obstruct your vision and, therefore, your ability to properly perform the test?

These questions, and others, must be asked in order to properly score the heel to toe test. Following proper procedure under proper conditions is the only way to assure the accuracy of the test, yet most cases show that the proper conditions existed. It is also critical to take into account the overall health and physical ability of the person submitting to the test as the police officer is trained to inquire yet many do not. All in all, it is likely the officer failed to take some or all of these factors into account before scoring your performance. I will be sure to exploit all of these shortcomings when defending your DUI/OUI/Drunk Driving case.

What is the One-Leg Stand Sobriety Test?

The One-leg stand is one of the most difficult field sobriety tests to perform even under the most ideal conditions. In this test, the officer asks the individual to stand with heels together and hands at the side. The person is then asked to raise one foot six inches from the ground while counting aloud from one-thousand one to one-thousand thirty. Try this one without having consumed alcohol. I guarantee that you will not pass.

The National Highway Traffic and Safety Administration defines the proper administration of the one-leg stand test, yet, Police officers routinely provide the wrong set of instructions, making it virtually impossible to accurately score your performance on this test to determine your level of intoxication.

The police officer who arrested you must justify why they did so in court. For this reason, the police will do everything they can to make observations about you that demonstrate your intoxication. When they observe symptoms they believe show your drunkenness, they will record those observations in the police report, or in some cases, the police officer suddenly remembers these facts while on the stand even though its not contained in their report. Surprised?

While there are many commons signs of intoxication, there are also many legitimate explanations for those very signs that have nothing to do with drinking alcohol. The officer, however, will usually pay no attention to the alternate explanations for your appearance and immediately conclude that drinking was the basis for what you look. I will aggressively challenge the officer's presumptions about your appearance and provide other explanations for the way you appeared when you were arrested.

Providing other reasons for your appearance will downplay any claim that you operated your vehicle while under the influence of alcohol. The following examples are some of the things an officer will routinely list in a police report as signs of your intoxication; the observations are then followed by other non-alcohol related reasons for the very same symptoms – reasons the officer arresting you conveniently fails to consider.

Bloodshot Eyes

The officer will almost always claim that a driver arrested for OUI had red or “bloodshot eyes.” This is what they are trained to include in their report, this is one of the questions contained in the breathalyzer log in prior to testing. If the officer notices redness in your eyes, the observation will certainly find its way into the police report. There are legitimate justifications for your alleged “red” eyes. While excessive drinking would produce red eyes, there are many other explanations to account for such redness such as allergies, fatigue, medication, crying, medical condition, exposure to smoky areas, colds, air pollution, and many more. I have never run into a police report where the officer asks why someone’s eyes are red, glassy or bloodshot. After many training classes in drunk driving enforcement, we were trained to stay clear of that question.

STRICT COMPLIANCE WITH TRAINING STANDARDS: State v. Homan, 732 N.E.2d 952 ( Ohio 2000), a case that is cited within the officer’s own training manual states Section III, pages 9-10: Standardized Field Sobriety tests conducted in a manner that departs from the methods established by the National Highway Traffic Safety Administration “are inherently unreliable”. The Court determined that the administration of the SFSTs, including the one leg stand and walk and turn tests, must be performed in strict compliance with the directives issued by the NHTSA. The stated in Homan, “it is well established that in field sobriety testing, even minor deviations from the standardized procedures can severely bias the results.”

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