Standardized and Nonstandardized Field Sobriety Testing in Orange County

The difference between non-standardized and standardized field sobriety tests is that standardized field sobriety tests were the tests chosen by NHTSA as being the most effective in determining whether a person is indirectly impaired by virtue of driving at or above the legal limit. 

According to the National Highway Traffic Safety Administration (NHTSA), beginning in 1975, the NHTSA sponsored research that led to the development of “standardized” methods for police officers to use when evaluating motorists who are suspected of Driving Under the Influence (DUI) and Driving While Impaired (DWI).  By 1981, many of the law enforcement agencies from all across the United States began using NHTSA's Standardized Field Sobriety Test (SFST) battery to help make arrest decisions at and above the 0.10% percent blood alcohol concentration (BAC). As time progressed, this same standard was applied to States that subsequently adopted a 0.08 standard after Anacapa Sciences, Inc., of Santa Barbara, California conducted a study to validate the accuracy of the SFST battery to discriminate above or below 0.08% and above and even below 0.04% blood alcohol concentrations.

According to the NHTSA, the SFST battery consists of three (3) tests administered and evaluated in a standardized manner by law enforcement officers at roadside to assist them in making an arrest decision.

According to the NHTSA, "the Standardized Field Sobriety Tests, (SFSTs) are a battery of three tests administered and evaluated in a "standardized manner" to obtain validated indicators of impairment and establish probable cause to arrest", not to convict, however. Police Officers take courses to "qualify" them to "administer" the Standardized Field Sobriety Test under the guidelines set forth by the NHTSA and all the NHTSA training manuals require police officers to "administer and evaluate the Standardized Field Sobriety tests in "strict compliance" with the guidelines set forth by the National Highway Traffic Safety Administration.

The term "Standardized" means that the tests are required to be administered and evaluated in the in the exact same manner each and every time they are used or administered. All Standardized Field Sobriety Tests must be done in compliance with the NHTSA guidelines regarding both their administration and their grading.

Officers are trained that for the standardized field sobriety tests to be "valid" in determining a person's blood alcohol level, the tests must be administered in the prescribed manner" and that "the standardized cues must be used to assess the subject's performance" and if any of the elements is changed, the validity of that test is compromised".

If the person performs the tests in such a way as to conclude that the subject is at or above the legal limit, then they are likely impaired; however, if the test subject performs the tests in such as way as to conclude that they are below the legal limit, then they are likely not impaired.

In assessing whether the subject performs the tests in such a way as to conclude that person is or is not at or above the legal limit, the officer uses a grading criteria that asses the number of "cues" or "clues" the subject exhibits on each of the tests and these "cues" or "clues" are Standardized to ensure that the officer "properly" evaluates or grades the tests. Understanding field sobriety testing is essential to your ability to defend against an Orange County DUI charges. 

According to the NHTSA, Horizontal gaze nystagmus (HGN) is an involuntary jerking of the eyes that occurs as the eyes move to the side. When a person has consumed alcohol, nystagmus is exaggerated and may occur at lesser angles depending on the degree of impairment.

The Horizontal Gaze Nystagmus Test, or HGN Test, is administered by examining the test subject's eyes pursuant to the specific protocol established by the NHTSA, which requires a total of 14 passes of the test subject's eyes with the following instructions being given to the test subject prior to the administration of the testing procedure:

1. I am going to check your eyes. (Please remove your glasses)
2. Keep your head still and follow the stimulus with your eyes only.
3. Do not move your head.
4. Do you understand the instructions?

Out of all the field sobriety testing options, the Horizontal Gaze Nystagmus Test is the one that nearly every officer will use in their field sobriety testing because it is the most accurate field sobriety test available in their arsenal of field sobriety testing. This is because the Horizontal Gaze Nystagmus Test is immune to tolerance, meaning, a test subject cannot "mask" the results as they could on the balance and coordination tests because nystagmus is involuntary. 

If you were subjected to a Horizontal Gaze Nystagmus Test as part of your field sobriety testing sequence, contact a DUI Defense Attorney who understands not only field sobriety testing generally; but also the use and limitations of the Horizontal Gaze Nystagmus Test. 

There are six cues that a police officer is looking for on the Horizontal Gaze Nystagmus Test, they are as follows:

1. Lack of smooth pursuit
2. Distinct and sustained nystagmus and maximum deviation
3. Angle of onset prior to 45 degrees

While the NHTSA's original research indicated that six out of six cues was "statistically more consistent" with a person who was at or above 0.08% at the time of the test, subsequent research conducted by the NHTSA has indicated that a “Hit” occurred when the number of reported signs for a given BAC fell within the range: > a 0.06% at 4 - 6 cues or clues; a .05% – .059% at 2 - 4 cues or clues; a 0.03% – 0.049% at 0 - 4 cues or clues and a < 0.03% at 0 – 2 cues or clues. "The Robustness of the Horizontal Gaze Nystagmus Study" (September, 2007).

The Walk and Turn and One-Leg Stand tests require a test subject to listen to and follow test instructions while performing physical tasks. Because these tests are alcohol sensitive according to the NHTSA, impaired persons will have difficulty with these “divided attention tasks” and this impairment will manifest itself in the test subject not being able to perform the tests satisfactorily. During the tests officers observe and record cues or clues which are indirect indicators of impairment as the Standardized Field Sobriety Tests attempt to determine whether a test subject is at or above the legal limit, and thus indirectly measure whether or not the test subject is impaired.

The Walk-and-Turn Test, or the WAT Test, is composed of two stages: the "Instruction Stage" and the "Walking Stage" and are administered according to a specific protocol established by the NHTSA, which are as follows:

1. Put your left foot on the line, then place your right foot on the line ahead of your left, with the heel of your right foot against the toe of your left foot.
2. Do not start until I tell you to do so.
3. Do you understand? (must receive affirmative response)
4. When I tell you to begin, take 9 heel-to-toe steps on the line (demonstrate) and take 9 heel-to-toe steps back down the line.
5. When you turn on the ninth step, keep your front foot on the line and turn taking several small steps with the other foot (demonstrate) and take 9 heel-to-toe steps back down the line.
6. Ensure you look at your feet, count each step out loud, keep your arms at your side, ensure you touch heel-to-toe and do not stop until you have completed the test.
7. Do you understand the instructions?
8. You may begin.
9. If the suspect does not understand some part of the instructions, only the part in which the suspect does not understand should be repeated

There are eight cues or clues that a police officer is looking for on the Walk & Turn Test, they are as follows:

1. Can’t keep balance during instructions
2. Starts too soon
3. Stops walking
4. Misses heel-to-toe
5. Steps off line
6. Uses arms for balance
7. Improper turn
8. Incorrect number of steps

Based on the original research conducted by the NHTSA, the existence of 2 out of 8 cues is "statistically more consistent" with a blood alcohol concentration of 0.08% or greater.

The One Leg Stand Test is composed of two stages: the "Instruction Stage" and the "Balancing Stage" and are administered according to a specific protocol established by the NHTSA, which are as follows:

1. Stand with your feet together and your arms at your side (demonstrate)
2. Maintain position until told otherwise.
3. When I tell you to, I want you to raise one leg, either one, approximately 6 inches off the ground, foot pointed out, both legs straight and look at the elevated foot. Count out loud in the following manner: 1001, 1002, 1003, 1004 and so on until told to stop
4. Do you understand the instructions?
5. You may begin the test.

There are four cues or clues that a police officer is looking for on the One Leg Stand Test, they are as follows

1. Sways while balancing
2. Uses arms to balance
3. Hopping
4. Puts foot down

Based on the original research conducted by the NHTSA, the existence of 2 out of 4 cues is "statistically more consistent" with a blood alcohol concentration of 0.08% or greater.

The case of People v. Bennett (1983) 139 Cal.App.3d 767, holds that a person lawfully detained for drunk driving, and found to have symptoms consistent with intoxication, may be further detained for the purpose of administering field sobriety tests; but this is not always the case.

In Bennett, the Court held that the symptoms of intoxication here: driving, which included weaving; stumbling backwards into an open car door when the defendant got out of the vehicle, the strong odor of alcohol on the person's breath, bloodshot eyes and the presence of slurred speech, were more than adequate to justify the additional detention for F.S.T.s.

In Marvin v. DMV (1984) 161 Cal.App.3d 717, the Court held that an arrest, based solely on the fact of erratic driving coupled with the odor of alcohol, may be legal even without field sobriety tests.

Similarly, in People v. Deltoro (1989) 214 Cal.App.3d 1417, it was determined that the police had probable cause to arrest the defendant for DUI based solely on the odor of alcohol and the defendant's failure to negotiate a turn while going 50 mph in a 15 mph zone.

These holdings do not mean, though, that an arrest for driving under the influence (DUI) is always legal without any field sobriety testing. In each of the above-listed cases, there was sufficient, objective evidence for officers to have probable cause to believe the defendant was impaired.

Additionally, drivers have no legal obligation to participate in field sobriety tests in the first place, and no inference of guilt should be inferred from the defendant's unwillingness to perform field sobriety testing. See: Hawaii v. Sereno (2011) 125 Hawaii 246, 257 P.3d 1223, in which the court refused to infer a consciousness of guilt for failure to perform field sobriety tests, and the trial court’s grant of a motion to suppress granted was affirmed on appeal.