The Law of Field Sobriety Testing, Chapter 3 (FST & Driver Impairment: Linked or Not) of “Understanding Scientific Evidence-2nd Edition” excerpt to follow.

By George Bianci & Ted Vosk, DUI criminal defense attorneys/authors

Foundation for Admissibility of Field Sobriety Tests

The evidentiary standard for the admissibility of field sobriety tests varies, depending on whether these tests are considered scientific or just a lay observation. The range of burdens of proof go from strict compliance, to substantial compliance, to a free-for-all where everything is admissible and compliance only deals with the weight to be given the test by the finder of fact.

It only makes sense that the highest standard of “strict compliance” is associated with tests that have been ruled to be scientific in nature. What becomes even more confounding is when the individual tests within the three-test battery (AGN, OLS, WAT) are separated by one or more being scientific and the others not scientific.

“[A] court faced with the present task of deciding the admissibility of scientific evidence must exercise care to consider whether new developments or evidence require a reevaluation of the conclusions previously reached by courts that did not have the benefit of the more recent information. In short, neither science and technology may rest on past accomplishments – nor may the courts.”[1]

In the case of State v. Homan[2] the Ohio Supreme Court ruled that for the results of any field sobriety tests to serve as evidence of probable cause to arrest an individual for driving under the influence, the police must have administered the tests in compliance with the standardized test procedures by NHTSA. The Ohio Supreme Court determined that “[t]he HGN test is not the only field sobriety test that requires special care in its administration.”[3]

The court went on further to state that there must be strict compliance by the law enforcement officer with the NHTSA standards. (This is as opposed to substantial compliance.) In ruling the need for strict compliance, the Ohio Supreme Court stated:[4]

…In the substantial- compliance cases, the minor procedural deviations that were at issue in no way affected the ultimate results. In contrast, it is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the results. Moreover, our holdings in the substantial- compliance case were grounded, at least in part, on the practical impossibility of strictly complying with the applicable administrative regulations. In contrast, we find that strict compliance with standardized field sobriety testing procedures is neither unrealistic nor humanly impossible in the great majority of vehicles stops in which the police choose to administer the tests.

Washington courts have faced a similar issue in the past, and decided the issue in favor of the position maintained by the defense that strict compliance is necessary. Baity dealt with the subject of DRE evidence, which includes the three-test SFST battery. The facts before the court were as follows:[5]

The Drug Evaluation and Classification Program (DECP) was developed by the Los Angeles Police Department (LAPD) in the 1970s. The program’s purpose is to train officers to recognize the behavior and physiological conditions associated with seven categories of psychoactive drugs, to determine whether a suspect is driving while impaired by a drug other than alcohol…In 1984, the National Highway Traffic Safety Administration (NHTSA) and the National Institute on Drug Abuse sponsored a controlled laboratory evaluation of the DRE program, conducted by researchers at the Johns Hopkins University…Subsequently, the NHTSA developed a standardized curriculum for training police officers as DREs and, utilizing this training, initiated DECPs in states meeting the site selection criteria. As the DRE program continued to expand, NHTSA recognized the need for an organization to assume oversight of the program on a national level…In 1989, the International Association of Chiefs of Police (IACP) assumed national oversight of the program and became the certifying and regulating body for the DRE program…The Washington State DRE program complies with the IACP standards, and officers in this state use the same 12-step protocol adhered to nationally.

“All DREs, regardless of agency, use the same procedures, in the same order, on all drivers.”[6]

Noting that “NHTSA and the ICAP…have approved the DRE protocol [and that] Tests of the ability of DREs to discern whether a suspect has ingested drugs or a particular family of drugs have been undertaken by the LAPD, Johns Hopkins University, and the states of Arizona and Washington,” the court determined that the “DRE protocol and [classification of] behavioral patterns…have scientific elements.”[7] The court also found that “HGN testing is scientific in nature.”[8]

Contrary to the ruling in Baity, is the case of Williams v. State,[9] wherein the court held that the Frye standard for scientific evidence did not apply because the 12-step protocol was not scientific.

In U.S. v. Horn,[10] Judge Grimm found that the standardized three-test battery was not scientific in nature, but ruled that the officer could testify as a lay witness to his observations. This is consistent with the Florida court’s ruling in State v. Meador.[11]

Rule 702 prohibits expert testimony if it is not the product of reliable methods or principles that reliably have been applied to the facts of the particular case. In the context of scientific or technical testing, such as may be the case with SFSTs, reliability means the ability of a test to be duplicated, producing the same or substantially same results when successively performed under the same conditions. Daubert, 509 U.S. at 595; Samuel v. Ford Motor Co., 96 F.Supp.2d 491 (D.Md.2000). Thus, for the SFSTs, if reliable, it would be expected that different officers, viewing the same suspect performing the SFSTs, would reach the same conclusion regarding the level of the suspect’s impairment or intoxication.[12]

Judge Grimm said “For the reasons that will be explained below, on the record before me, I cannot agree that the HGN, WAT and OLS tests, singly or in combination, have been shown to be as reliable as asserted by Dr. Burns, the NHTSA publications, and the publications of the communities of law enforcement officers and state prosecutors.” While agreeing that HGN tests are admissible as circumstantial evidence of alcohol consumption, he said, “I must do so by recognizing their limited reliability and with substantial doubts about the degree of their general acceptance within an unbiased scientific or technical community.”

In disregarding the conclusions of many state courts that the SFSTs have received general acceptance, the court said, “I remain skeptical whether this is sufficient for purposes of Daubert and Kumho Tire.” “As to the conclusion of the state courts, more often than not expressed in passing and without analysis, that the SFSTs generally are accepted among psychologist like Dr. Burns, the evidence presented to me by the three psychologists called by Horn leads me, respectfully, to beg to differ. Thus, based on the foregoing, I conclude that the SFST evidence in this case does not, at this time, meet the requirements of Daubert/Kumho Tire and Rule 702 as to the admissibility as direct evidence of intoxication or impairment.”

In Stewart v. State[13] the Georgia court reiterated that the OLS and WAT tests are not subject to scientific scrutiny for admissibility purposes, and that while the HGN test is subject to scientific scrutiny, the state only need establish that the administrator substantially performed the test in an acceptable manner. In McRae v. State,[14] the court also found that the OLS and WAT tests are not subject to scientific scrutiny and reaffirmed that with the HGN test, “[s]light variations in the administration of the HGN test do not render the evidence inadmissible or unreliable, but may affect the weight to give the testimony.”

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