NJ DWI Field Sobriety Testing

I recently spoke at a seminar titled “Handling Your First DWI Case” sponsored by the NJ Bar Association Institute for Continuing Legal Education. I was asked to instruct other NJ lawyers in the area of field sobriety testing. The following are experts from my presentation.

FIELD SOBRIETY TESTING

Most police officers have formal training in field sobriety testing – and specifically standardized field sobriety testing through the NJ State Police There are two classes of tests; pre-exit tests and standardized field sobriety (SFST) tests.

PRE-EXIT TESTING

Pre-exit tests are optional. An officer will administer pre-exit testing to determine whether to have a suspect exit a vehicle and proceed to administer more reliable standardized field sobriety tests.

Officers are trained that after a stop, they should engage in “face to face contact [and] may administer some simple pre-exit sobriety tests to gain additional information to evaluate whether or not the driver is impaired … and  whether to request the driver to exit the vehicle for further field sobriety testing.” See 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide.

The most common pre-exit tests (see 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide) are:

  • Alphabet. The driver is asked to recite the alphabet beginning with a letter other than A and ending with a letter other than Z. For example, an office might ask a driver to recite the alphabet (without singing) beginning with the letter D as in Dave and stop with the letter P as in Paula.
  • Count Down. The driver is asked to count out loud 15 or more numbers in reverse. For example, an officer might ask a driver to count out loud backwards starting with the number 34 and ending with the number 13.
  • Finger Count (Sometimes referred to as a “finger-pat” test). The driver is asked to touch the tip of the thumb to the tip of each (other) finger on the same hand while simultaneously counting up (1-2-3-4) and then down (4-3-2-1).

NHTSA research show and training is, these pre-exit tests “have not been scientifically validated but still can be useful for obtaining evidence of impairment.” See 2013 NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Guide.

STANDARDIZED FIELD SOBRIETY TESTING

Standardized field sobriety testing is a battery of three tests administered and evaluated in a standardized and objective manner to obtain validated indicators (called “clues”) of alcohol impairment and to establish probable cause to arrest a DWI suspect. The tests were first “validated” at a .10% BAC and subsequently at a .08% BAC.

These tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). The research concluded that these three tests, when administered and scored properly, were the most scientifically reliable field sobriety tests to determine alcohol impairment.

Formal training in the administration of standardized field sobriety testing consists of intensive classroom study, at least two controlled drinking sessions testing subjects and a final written examination.

The official NHTSA training manuals (including the most recent March 2013 Participant Guide) are on line: http://www.wsp.wa.gov/breathtest/dredocs.php

The January 25, 2005 Attorney General Guidelines for Prosecuting DWI Violations, promulgated pursuant to N.J.S. 39:4-50.2a, states “[f]or those officers with the requisite training, they will generally employ the Standard Field Sobriety Testing [SFST] methods …” see www.state.nj.us/oag/dcj/agguide/d-10jd-dwi-2005.pdf

The three standardized field sobriety tests (known by the acronym “SFSTs”) are: (1) the horizontal gaze nystagmus (HGN), (2) the walk-and-turn, and (3) the one-leg-stand.

According to NHTSA, the SFSTs are the most reliable tests to identify impairment. The reliability of SFSTs is, however, contingent upon the tests being administered in a prescribed standardized manner, standardized indicators (“clues”) being used to assess the suspect’s performance, and standardized criteria being employed to interpret the performance.

In United States v. Horn, 185 F. Supp. 2nd 530 (D. Md. 2002), United States Magistrate Judge Grimm undertook an extensive and scholarly review of “standardized” field sobriety tests. Judge Grimm, reviewing the literature and Federal training materials instructed among other things that the standardized field sobriety tests are valid:

[o]nly when … administered in the prescribed, standardized manner; and only when the standardized clues are used to assess the suspect’s performance; and only when the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements is changed, the validity is compromised. Id. at 538.

NHTSA has attempted to dilute the requirement of strict compliance with their standardized procedures (in their most recent 2013 training materials). It is however, impossible or NHTSA to eliminate the requirement that the tests be administered in a standardized fashion (since the NHTSA validation was tied to the proper standardized administration of the tests).

According to NHTSA, “[t]he validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring.” www.nhtsa.gov/people/injury/alcohol/sfst/introduction.htm

The current (2013) training materials (http://www.wsp.wa.gov/breathtest/dredocs.php) instruct officers to “administer … the Standardized Field Sobriety Tests as you were trained … [s]tandardization ensures both consistency and credibility” (page 23 of 31).

HORIZONTAL GAZE NYSTAGMUS (HGN)

Horizontal gaze nystagmus is a naturally occurring involuntary jerking of the eyeballs as they gaze side to side while following a fixed object (called a “stimulus”). When a person is impaired by alcohol, the nystagmus (the jerking of the eyeballs) is magnified or pronounced.

The officer is trained to observe the eyes of a suspect as they follow a slowly moving object such as a pen or small flashlight (referred to as a “stimulus”) back and forth (horizontally). The stimulus is held 12-15 inches in front of the subject’s nose, with the tip slightly above the eyes.

As the suspect tracks the stimulus with the eyes only (the head remains still), the officer is trained to look for three indicators (or clues) of impairment in each eye:

  • Distinct and sustained nystagmus when the eye is at maximum deviation (maximum deviation meaning the eyeball moved horizontally as far as it can go), and
  • The eye cannot follow the stimulus smoothly (like marble being rolled across a piece of sandpaper as opposed to a marble being rolled across a glass table),
  • The angle of onset of nystagmus is prior to 45 degrees from center (45 degrees being approximately when the eye is near the subject’s shoulder blade).

A Court cannot consider the results of an HGN test for substantive evidence of intoxication; but may consider the test results for a “probable cause” (to arrest) determination. see State v. Doriguzzi, 334 N.J. Super. 530, 546-547 (App. Div. 2000).

WALK AND TURN

There are two stages in the walk-and-turn test: (1) the “instruction stage” and (2) the “walking stage.” In the instruction stage, the subject is directed to stand on a line with the feet in a heel-to-toe position (right foot in front of left), keeping the arms at the sides, listen to instructions and not begin until being told to do so. The subject is instructed to take nine steps, heel-to-toe in a straight line while counting the steps out loud and watching the feet, and then turn and return in the same manner.

The officer is trained to look for eight clues of impairment:

During the Instruction Stage:

  • Loses balance during the instructions (by breaking away from the heel-to-toe stance), and
  • Starts walking before the instructions are finished.

During the Walking Stage:

  • Stops while walking to steady self,
  • Does not touch heel-to-toe (by missing by at least one-half inch),
  • Steps off the line,
  • Uses arms for balance (by six inches or more),
  • During the turn, loses balance or turns improperly, and 8. Takes the wrong number (9 and 9) of steps.

Officers are trained to administer the walk-and-turn test on a reasonably hard, dry, and non-slippery surface and in a well-illuminated area. Officers are also instructed that people more than 65 years old, over 50 pounds overweight, or with physical impairments that affect their balance will have difficulty with the test. The officer is trained to ask the suspect whether they have any physical problems or disabilities.

Officers are taught to remain motionless and stand three to four feet away from the suspect during the test. Officers are trained that individuals wearing “heels more than two inches high [or] any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.” Officer are also trained to “consider environmental factors [e.g. wind and weather – and] location [and that] the totality of all factors should not be overlooked.”

ONE LEG STAND

There are two stages to the one-leg-stand test: (1) the “instruction stage” and (2) the “balancing and counting stage.” In the instruction stage, the suspect must stand with the feet together and the arms at their sides. The subject is instructed to stand with one chosen foot approximately six inches off the ground, toes pointed out, while looking at the elevated foot until told to put the foot down, and not stop until being told to stop (the officer should time 30-seconds).

The officer is trained to look for four clues of impairment:

  • Swaying while balancing (a noticeable sway in a side to side or back and forth motion),
  • Using arms to balance (more than six inches),
  • Hopping to maintain balance, and
  • Putting the foot down.

Like the walk-and-turn test, officers are to administer the walk-and-turn test on a reasonably hard, dry, and non-slippery surface and in a well-illuminated area. Officers are also instructed that people more than 65 years old, over 50 pounds overweight, or with physical impairments that affect their balance will have difficulty performing the test. The officer is trained to ask the suspect whether they have any physical problems or disabilities.

Officers are taught to remain motionless and stand three to four feet away from the suspect during the test. Officers are trained that individuals wearing “heels more than two inches high [or] any form of any unusual footwear (i.e., flip flops, platform shoes, etc.) should be afforded the opportunity to remove that footwear prior to the test.” Officer are also trained to “consider environmental factors [e.g. wind and weather – and] location [and that] the totality of all factors should not be overlooked.”