So what’s next? Usually the Walk and Turns (WAT). Here’s where it gets interesting. The officer must find a fairly level spot, out of the way of traffic, that is both safe for the subject and officer, as well as conducive to the test. Is it icy, cold, It is typically on the shoulder, the fog line, or a parking lot. Any number of conditions, again, including weather, as well as preexisting health conditions, can interfere with this test. If someone just had back surgery or a knee replacement, they will undoubtedly be unsteady. Score another one for unfairness.
But that’s not all. The Walk and Turn is a game of “Simon Says.” Some officers fail to inform the test subject that they may not begin the test unless and until the officer tells the subject to begin the test. They tell the test subject that the officer will now demonstrate the test. When the test subject attempts to mirror the officer’s physical gymnastics, the officer scores one “clue” for a false start. Another point for unfairness.
But that’s not all. The National Highway Traffic Safety Administration, in the spirit of “New Math,” commissioned a study to validate the field sobriety tests, and in those tests determined that in seventy-nine percent of test subjects who demonstrated two so-called “clues,” or, signs of insobriety, those subjects' blood alcohol content was .10 grams of alcohol per 210 L breath, or, over the legal limit. They stand by their tests for the even lower .08 BAC standard now in effect in Iowa. The NHTSA thus instructs law enforcement agencies that two clues is the “decision point” for the Walk and Turn. One point for the shady false start is half way there. Score another point for unfairness.
Think about that for a second. Over 20 out of a 100 test subjects who demonstrated two so-called “clues” were not over .10 BAC. To counter this truism, the NHTSA and law enforcement agencies are quick to point out that they use more than one SFST and that SFSTs are more reliable indicators of intoxication when used as a battery.
In the next installment of “Are standardized field sobriety tests fair,” we’ll talk about the one leg stand and the preliminary breath test.
If you or a loved one is need of an DUI/OWI lawyer in the State of Iowa, contact David A. Cmelik Law PLC for a free ½ initial consultation. But remember that a blog is not legal advice and sending unsolicited information to an attorney over the Internet does not create an attorney-client relationship.
Second, at least one test is not reviewable: the HGN, or, eye test, unless departments invest in recording devices that can visually record the kind of minute eyeball movement officers claim that they can see when administering this test. I would wager that kind of equipment exists in an eye doctor’s office or perhaps a laboratory somewhere but not on the side of the road. In other words, both the judge, in any pretrial motions, and the jury, must either accept or reject the officer’s testimony that a test subject exhibited nystagmus or “unsmooth pursuit” eyeball tracking of the pen or finger. So for the HGN, it’s the officer’s word against, well, nobody else. But remember: it’s a standardized field sobriety tests that certified law enforcement officers are trained to administer when they believe someone is unfit to operate a motor vehicle because of intoxication. An officer will ask such a person to step from the vehicle to voluntarily submit to the tests. If they refuse to do so, they will ultimately ask the test subject to submit to a preliminary breath test. Once the officer has done that, if a test subject refuses the PBT, the officer will assert s/he already has grounds to believe the test subject is intoxicated and that cause plus the PBT refusal triggers a requirement to submit the Datamaster DMT back at the stationhouse.
It’s a little tough to believe an officer, not a trained eye doctor, under field conditions in all kinds of weather, usually in the dark, on the side of the road, with multiple cars passing by, can observe those eyeball fluctuations with any kind of precision. It’s also not difficult to believe that those same field conditions can taint the HGN, especially if passing headlights and taillights, activated emergency lights, or simple reflections, and streetlights might interfere with the test. Score one for the “unfairness factor” of the SFSTs.
Remember that an officer's beliefs are what are at issue here. Sometimes we believe what we want to believe. Police are no different.
A field sobriety test cannot rule out a "false positive" where the officer believes a sober person is intoxicated. The officer would likely say that's what the Datamaster breath test and blood tests will do. No one disagrees, however, that the field sobriety tests are subjective and fallible.
The tests that officers use to trigger implied consent include the Horizontal Gaze Nystagmas (HGN), the Walk and Turn (WAT), and the One Leg Stand (OLS). Added to that is the Preliminary Breath Test, or, PBT.
A field sobriety test cannot rule out a "false positive" where the officer believes a sober person is intoxicated. The officer would likely say that's what the Datamaster breath test and blood tests will do. In other words, some external factor might influence the test-- weather, preexisting health conditions, testing conditions, etc. But if the officer is wrong, s/he will say the Datamaster and the blood test will reveal that error. No one disagrees, however, that the field sobriety tests are subjective and fallible.
Maybe a better question is: are they objective? They aren't. Standardized field sobriety tests, or, SFSTs, are not objective. They are purely subjective—in other words, subject to the officer’s interpretation. If the officer intends to make an OWI arrest that night, the scores and the “clues” s/he seeks out will become a self-fulfilling prophesy: the test subject and driver was intoxicated because I said so. Of course, we would like to believe that an officer would be fair minded in his/her administration of the field sobriety tests but all police officers are human beings. As people,they’re subject to the same prejudice and biases from which all people suffer. Police are no different. Remember that an officer's beliefs are what are issue here. Sometimes we believe what we want to believe.
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