(THOSE TESTS OFFICERS ASK SUBJECTS TO PERFORM AFTER THE THREE PREVIOUSLY DISCUSSED TESTS WERE ADMINISTERED.)
Many officers have not been educated by NHTSA and the parameters they follow. Many officers use the tests they have used in the past and feel competent in administering. The real test for you is performing as well as you can under the circumstances, no matter the officer, no matter the test, no matter the time of day or night. The better you perform, the better you are.
If you’re impaired by alcohol (or drugs, or both of those substances) you WILL display that impairment in some fashion. Remember, the first faculty to abscond from you, if you are impaired, is your MENTAL CAPABILITY. Thereafter, your ability to physically perform tasks is affected. If you were unsteady on your feet moving from your car to a location directed by the officer, you would expect to see that problem continue throughout the tests. If it doesn’t persist the officer has likely observed a false positive. (He saw something he wanted to see but didn’t occur.) Usually the lower your blood alcohol the better you perform in all aspects of the stop. Usually is the best that can be said of this generality because people build a tolerance to alcohol through continued use. (Tolerance could explain the difference between a 120-pound person who had 2 drinks an hour ago and a 120-pound person who had the same alcohol to drink but had 12 of them. If the person who had more to drink performs better than the person with fewer drinks the difference in performance could be explained by the person who had more to drink masking the degree of their impairment. (This aspect of DUI investigations will be covered, infra.)
One thing more before going to these other tests: Although NHTSA advises officers they may use other non-standardized tests, by calling them “additional techniques”, NHTSA’s own validation studies show the following enumerated tests to be inaccurate in determining alcohol impairment. (Although I have not seen it yet granted, an attorney may wish to ask for a limiting instruction on the use of the non-standardized tests when the 402 motion excluding their use is denied.)
Having this information in mind, the following outlines those tests considered to be the non-standardized tests:
RHOMBERG TEST/MODIFIED POSITION OF ATTENTION TEST
With this test, the subject is instructed to:
1. Place your heels and toes together and your eyes closed.
2. Keep his hands at your sides along the seams of your trousers.
3. Place your head back, and after estimating 30 seconds tell me when you are done. (Without estimating 30 seconds the test becomes merely a balance test.)
This test has been found to be difficult to perform for persons without having ingested alcohol or drugs. Its validity is highly questionable.
(See Psycho-Physical Tests for DWI Arrests, DOTHS 802 424; Burns and Moskowitz, June 1977.)
Officers have testified variously that subjects performing this test failed to perform it properly because;
1. They were observed to be swaying side to side or forward and backward or in a circular motion;
2. They improperly estimated thirty seconds.( Huh? Testing shows a person with or without alcohol will estimate 30 seconds to be between 19 seconds and 41 seconds. All of those numbers between 19 and 41 are NORMAL. If a person announces the 30 seconds have passed after taking this position for 10 seconds I would consider that factor to be inconsistent with impairment because alcohol is a depressant which would slow down the estimate.)
3. The subject could not remain in the position instructed.
4. The subject raised his arms from his sides during the administration of the test.
5. The subject displayed eyelid flutters. (I guess that means a modified nystagmus test while the eye is closed but still bouncing? Hog-wash.
6. The subject failed to put toes and heels together.
7. The subject began the test before being told to do so.
8. Their eyes were opened during the performance of the test.
Nearly all of the elements identified above that cause a person to fail this test has nothing to do with sobriety or impairment. If an officer has a test performed that is not a test quantified by NHTSA a person in asking questions about this test should look to activity that implies a lack of impairment. (A good example of comparisons if the officer fails to note a defendant raised his arms from his sides during his performance on this test but raised his arms on other tests the position to be taken becomes impaired persons should display similar systems throughout the testing process, before that process, as well as after the process. Impairment doesn’t come and go in moments so the subject’s performance should be similar in performance or the problem is the parameters of the tester.)
FINGER TO NOSE TEST
The finger to nose test is performed by the subjects being asked to:
1. Stand with their feet together and their hands at their sides index finger extended. (Some officers instruct the subjects to raise their arms and point them horizontally so their arms are parallel with the shoulders).
2. They are directed to tilt their head back, and
3. Upon receiving directions from the officer as to which hand to use they are to touch the tip of their finger to the tip of their nose.
4. After the nose is touched the hand is to return to the starting location.
The officers who utilize this test ask the subject to touch their nose with each hand on three distinct occasions, six touches in total. The officer will tell the subject which hand to touch the nose with by signifying Left or Right hand. (A typical test will usually be administered as follows: L, R, L, R, R, L).
Problems with the reliability of this test are as follows:
1. Officers report the subjects to touch the pads of their fingers, to the tip to their nose instead of the tip of the finger, and therefore do not perform the test properly. (mumbo-jumbo)
2. Subjects miss the tip of their nose and touching another part of their face. (It is not uncommon to show the subject never touched two parts of his face during any of the six attempts and always missed the nose.)
3. The subject swayed during the test.
4. The subject failed to return the hand after touching the nose and had to be told to return to the starting position.
5. The subject on the 5th touch began to use his left hand rather than his left. (Officers get a subject to perform in one manner and switch the method of performance required.
6. Unable to perform the test.
If someone tells you the divided attention part of the test is following the officer's directions with which hand to put to the nose don’t believe it.
THE FINGER COUNT TEST
The finger count test is accomplished by the officer asking the subject the following:
1. I want you using your thumb as a guide to begin by touching you index finger with your thumb and then to the middle finger and so on to your pinky.
2. I want you to return from the pinky to the index finger, in reverse order.
3. I want you to do 3 sets of four touches in each direction.
4. I want you to count aloud going in one direction 1-2-3-4 and I want you to return counting 4-3-2-1 as you touch each finger. (A officer asked Bob to perform this test but it establishes officers sometimes fail to make important observations. Bob's index and middle finger were amputated many years ago. Was the officer somehow impaired?)
Officers have reported individuals mixing-up the counts, missing fingers, inverting fingers and numbers, and completing more or less than three complete sets. (Officers frequently will observe the subject had to be told or had to have the test demonstrated on more than one occasion and include the reinstruction as part of an improper performance.)
THE HAND PAT TEST
This test remains a favorite of the California Highway Patrol probably because it can be administered swiftly without endangering the officer or the person performing the test.
The subject is told to hold one palm up toward the sky while the other hand is placed upon the open palm with the thumb of that hand pointing toward the sky and the blade of that hand resting on the open palm. The instructed object from this position is to place the vertical hand in the other hand as if to clap and to reverse the position 180 degrees by turning your hand to have the back of your hand touch the open palm. The subject is told to continue this clapping or patting until told to stop and to gradually increase the speed to a fast pace. The subject is told to count this maneuver aloud 1,2,1,2.
The CHP love to tell the jury as the subject speeded up he rolled the blade of his hand over the open palm. The Chippies will readily admit they do not tell the subject not to roll the blade of the hand but conclude that part of the test was improperly performed when it is observed. Other indicators of impairment include the failure to speed up.
The officer will never tell you this test was completely fouled up by the subject. Those areas he says were done satisfactorily are the areas to compare with other tests where his performance was compromised. (Remember if you impaired you will always perform in the same manner. You don’t phase in and out of impairment.
WRITING OR RECITING THE ALPHABET
THE WRITTEN ALPHABET
The subject is asked to write the alphabet beginning with the letter A and continuing to Z. When he has completed the alphabet he is asked to sign his name and without looking at his watch to put the date on the paper.
Clearly, the officer is looking for omitted, inverted, or interestingly formed letters. Many subjects finish the task of the alphabet but forget to sign their name or include the date.
In one case our friend Bob was asked to perform a written alphabet by the officer. The alphabet contained all 26 letters. The N looked more like a failed M but you could tell it was intended to be an N, just strangely formed. Bob also failed to date and sign his work as requested.
At trial, the officer pointed to the N and to the failure by Bob to sign and date the document and suggested that act assisted him in forming an opinion Bob was impaired.
Bob took the stand and explained it was a cold December evening he had never before ever had an officer ask him to get out of his vehicle which was greatly unnerving and the lights, the gun, the investigation… it was all just so overwhelming. On direct Bob said nothing about the N which the officer had even made fun of when he was on the witness stand. He said nothing at all.
The prosecutor while on cross-examination asked Bob to mark on her exhibit all the crosswalks he had passed from location A to the area where Bob was stopped. He complied and marked 6 crosswalks on the diagram and then proceeded to print (as in his alphabet test) vertically on the exhibit six times the word CROSSING. When he was done he had written 6 crazy-looking N’s on the prosecutor’s exhibit thereby undercutting the credibility of the officer.
THERE IS NOTHING BETTER THAN AN HONEST DIRECT TESTIFYING DEFENDANT.
THE ORAL ALPHABET
This test is performed by telling a suspect to start with A and continue without stopping to Z. He is told not to sing the alphabet but to begin with a pace and stick with it to the end.
Like the written alphabet the officer is looking for missing or inverted letters or the compulsion to sing the ABCs as we did when we were children.
Bob was asked to do this test on an occasion and he began admirably. He began in this fashion: A B C D E F G H. Bob was being taped while performing this test and he could be heard to be snoring blissfully. The officers made note of the fact Bob was asleep. They announced on the tape they were going to awaken Bob, they said: “Senator, Senator…” On the tape, you could hear Bob come to life. Immediately the officers ask Bob about the alphabet test. Bob replied he had done that test. The officers countered with the fact he had not completed the alphabet. Bob quickly responded: “Oh…X, Y, Z. And there you are. Bob didn’t go to trial on this case.
It should be noted many officers in the past required a subject to begin counting at 100 and continue counting backward until reaching 89. Officers have also asked subjects to recite the alphabet backward. These kinds of tests have gradually evaporated from officer protocol but it wouldn’t be a surprise to see this activity now and again.
If subjects listen to what they are asked to do and do the best they can with whatever test they are asked to perform they would be best off.
CAN I REFUSE TO TAKE ANY OF THESE TESTS?
The refusal to take any Field Sobriety Test is perfectly permissible. You are not required to perform any tests at all. HOWEVER, your refusal, if you go to trial, more likely than not, will be noted by the prosecutor and suggested your refusal to perform the requested test displayed a consciousness of guilt and that the jury could infer your refusal was an attempt to avoid displaying how impaired you really were.
I MAKE A FEW GENERAL OBSERVATIONS
People when confronted by an unusual event are apt to become talkative, nervous, and frightened. You want to please the man who could be hauling you off to jail. Calm down watch and listen.
If you are cold and you feel it is affecting your performance tell the officer.
If you are wearing cowboy boots or high-heels their presence can affect your performance on any physical tests you are asked to perform. They can also explain poor performances. See if the officer asks you if you wish to remove your shoes. Remember if you take off your shoes you will feel every little rock on the ground you are walking on and that too can affect your performance.
If when you were asked the question by the officer you forgot you had a handicap, tell the officer.
NEVER OFFER INFORMATION YOU WERE NOT ASKED TO PROVIDE.
For instance, Bob was asked if he knew his alphabet. Bob told the officer he knew the alphabet in six different languages, had graduated from USC, and did his Master’s Thesis on ALPHABET CONSTRUCTION. The short crisp answers policy will best serve your interests.