Field Sobriety Test Issues
Law enforcement often sets up driver’s license checkpoints late at night by nightclubs or bars, which serve as DWI checkpoints. For example, a police officer will pull someone over near a bar and say, “This is a driver’s license check but I smell beer on your breath. On a scale of one to ten, with zero being sober and ten being falling down drunk, how would you rate your condition?” Most people would randomly say, “Five.” The police officer will say that means the person admitted they were halfway to falling down drunk. In other words, the client’s own words may wind up incriminating them during a DWI trial since the only good answer is “zero.”
Many years ago, I had a client who would easily have been awarded a not guilty verdict in a DWI case, but at the very end of the officer’s video, he asked my client, “Why won’t you take the breath test?” and she said, “Well, I drank too much last night so I probably would not pass the test.” This DWI stop occurred at noon the following day. Unfortunately, my client did not realize that when you sleep for eight hours alcohol gradually leaves your system; and she probably would have blown a zero on the breath test because she had not been drinking that morning. Because she said, “I will not pass,” the jury convicted her.
Unfortunately, I did not explain the issues in this area well enough to my client. I should have hammered these issues in my voir dire opening and closing statements. That is why it is so important for lawyers in this practice area to take the standardized field sobriety test (SFST) class. It is also important to admit it when we make errors or mistakes and to share them with our colleagues and continue to get better at handling these situations. I should have discussed why a person would say such a thing and showed the venire that they probably would have thought the same incorrect thought had they been in her situation. I could have taken the fire out of the statement. I do have to add that I thought the jury panel was one of the worst I had ever dealt with. They came to convict someone and they did.
I have learned a lot of things from taking the SFST course. For instance, police officers are routinely told that the average DWI offender has driven under the influence eighty times a year until they are finally caught and arrested, even though there are no statistics to back up such a claim. Also, prosecutors often try to make a lot out of the fact that the client refused to take the field sobriety tests; it is generally assumed that it is because they were drunk and they did not want to fail. That is why, as I have noted, I always strive to convince the jury that no one should ever consider taking the field sobriety tests, because they are unlikely to pass, sober or drunk. Once they see how biased the tests are, you have a fighting chance even with a bad SFST video.
The HGN Test
With respect to the Horizontal Gaze and Nystagmus (HGN) test, based on the video evidence I have observed in most of my cases, I have seen police officers perform the test correctly in about five out of 100 cases—often because they were taught incorrectly; and if one officer is conducting the test incorrectly and he teaches ten other officers how to do the test, they are all going to do it incorrectly. Officers also get lazy and do not follow the protocol they were taught. If your eyes jerk you are probably going to jail.
In the HGN test, the officer will raise their stimulus, which may be their finger, a pen, or a light on a pen, slightly above the driver’s eye level so that they can tell whether or not the driver’s eyes are jerking. If the stimulus is raised any higher, the driver’s eyes are forced to use a different set of muscles. Essentially, the driver’s eyes wind up jerking/going up and down because they are no longer following a horizontal movement; they are following a movement in the path of an arc. Certainly, there is such a thing as alcohol-induced nystagmus; but it should be noted that there are thirty-eight types of nystagmus and forty-six causes and those are conservative estimates if you do a Google search. DWI guru, Gary Trichter refers to the HGN test as “here goes nothing” and juries always get a kick out of that.
The Walk and Turn
Another field sobriety test is the walk and turn; and the problem with this test, much like all of the field sobriety tests, is that it is hard to say what your performance is based on. Simply put, if the officer does not know how you would perform on the walk and turn test when you are not intoxicated, how would they know that your performance has been impacted because of alcohol? You are likely to perform very differently on the walk and turn test when you are totally sober at 7 a.m., but not really awake, than you would at noon after having lunch. You would also perform very differently on the test at 2:00 in the morning, after you have been working all day and are tired or fatigued.
During the walk and turn test you must first stand heel to toe with your arms at your side; and then you need to put your right foot in front of your left foot, heel to toe, walking with your arms at your side. You also must maintain the heel to toe position during the time it takes to explain the test instructions, which may take as long as ninety seconds, while fatigue builds up. If you step out of the correct position at any time, the police can use that as evidence of intoxication; they only need two clues out of eight to bring intoxication charges. In addition, your heel and toe have to be within one half inch of each other; this is very difficult when you are taking a test on the side of the road with gravel and broken glass around you, eighteen-wheelers driving by, and a cop shining a light in your face. You are also worried about what you are going to tell your boss or wife. It is a lot easier to do any task when you are not under emotional and psychological stress. Most jurors agree that they would not have done well on these tests during the day during a court break.
In a recent DWI trial, my client stepped more than one-half inch at one point in the test and he moved his arm one time; therefore, the officer said that he was intoxicated due to the two clues or cues. I then went through the whole test in front of the jury. I was able to get the officer to admit that my client did not break his stance, he did not start the test too early and he made a mistake on only one of the eighteen steps. The officer could not even say whether my client ever stepped off the line because he had thrown away his field notes. Also, based on the video evidence, my client was able to turn properly and follow the other instructions well. Ultimately, my client scored 117 positive points against the two negative points. I then evaluated the officer’s performance with respect to the protocol for how he was supposed to give instructions and demonstrate the test. Out of twelve things that the officer was supposed to do, my client did three things wrong, yet the officer claimed that my client had failed the test. Ultimately, the jury was on our side.
The One-Leg Stand
When performing the one-leg stand test, you need to stand with your arms at your sides and your feet together, and then you must pick up one leg and raise it until your foot is six inches off the ground, with your toe pointing forward. You then need to count out loud; and the officer will tell you when to stop. The officer is supposed to be timing you for thirty seconds; during that time, they will record how many clues (errors) you display. You could conceivably score one of the four clues during any one of the thirty seconds. You could put your foot down or sway or use your arms or hop during any of the second count marks. The officer will not tell you what he is looking for; he only tells you what he wants you to do. He will simply say, “If you put your foot down just pick it back up,” and he will not mention that putting your foot down is evidence of intoxication. I tell the jury panel that I think that sends a message that it is okay to put your foot down if you begin to lose your balance. It actually encourages you to score a point against yourself. It is unfair to do so.
During voir dire, I will generally pick one of the jurors to help me create tests designed to make me lose my balance. I use this exercise while I perform the One-Leg Stand and the Walk and Turn Tests. I ask the person whether we should have someone stand on one foot or two to make them lose there balance and they always say one foot. I ask if we should let them use their arms to balance if we want them to lose their balance and they say no. I ask them if we should let them hop to keep from putting their foot down and they say no. Then I ask them if they know what the officer is looking for to count against you when you take the One Leg Stand test and they all say no. Then I will point out that if you hop, sway, put your foot down, or use your hands during the one-leg stand field testing process, the officer lists those as clues that you are intoxicated. I do the same thing with the Walk and Turn Test clues. I also tell jurors that any two clues count as intoxication and they do not like the unfairness of the tests.
Consequently, when the officer testifies about how my client performed on the test, the jury is likely to be angry about what he put my client through, rather than simply agreeing with his testimony. I will also go through the testing process, asking the officer exactly what would indicate that the client failed the test. For instance, if you put your foot down three times that is considered a total failure. If the client did not put his foot down during the thirty-second test but he swayed at the nine-second point, that would be one negative mark against him, and twenty-nine positive marks. Again, the jury is likely to feel even more negatively about the officer’s testimony if I am able to prove that he made a mistake with respect to the testing process. In fact, I have sometimes gotten the officer to perform the one-leg stand test in front of the jury; no officer has ever been able to do it perfectly, especially if they had to work all night and are tired. If they use that as an excuse I remind them that my client had to work all day and was tired when he took the tests at 2:00 in the morning.
In one DWI case, my client had a muscular disease; he once played football for Notre Dame and is now over sixty years old. Most people would agree that he should not have been asked to perform such a test. My client was visibly shaking in court, just as he had been during the initial testing process, which made him look intoxicated on the police video. I had him attempt the SFST tests in front of the jury and he shook just like on the video and failed them miserably. He testified about the events of his day before the night he was arrested. He told us he had to take care of his cancer-ridden ninety-year-old mother, carry her, cook for her and clean the house, and give her a bath because she could not clean herself anymore. He described the many physical tasks he had performed during the day to help his mother and how tired and fatigued he was. The jury was moved to tears as he testified and I knew then that we had a Not Guilty in the wings.
I also knew that he was not intoxicated when he was arrested, which put extra pressure on me to win. This case should never have gone to trial; we would have accepted a non-DWI charge just to avoid court, but unfortunately, there are many prosecutors who are determined to get a DWI conviction, no matter what. The officer had made errors during the instructions for the tests that increased the error rate for the client. Fortunately, my client was found not guilty by the jury at the end of the trial.