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What Are Field Sobriety Tests? Field Sobriety Tests (FST's) are psychophysical tests used to assess a person's physical and/or mental impairment. They focus on the abilities needed for safe driving. Most of the more reliable psychophysical tests are known as "divided attention" tasks. They require a person to concentrate on more then one task at the same time. Police officers who suspect a driver of DUI / DWI often conduct field sobriety tests to gather evidence to support the charge. One of three standardized field sobriety tests recognized by the National Highway Transportation Safety Administration (NHTSA) is the horizontal gaze nystagmus test. A California criminal defense lawyer experienced in defending drunk driving cases can effectively challenge the outcome of the horizontal gaze nystagmus test and other field sobriety tests. Horizontal gaze nystagmus is an involuntary jerking of the eyes as they gaze from side to side. The higher the blood alcohol concentration, the sooner the eyes will begin jerking as they move from side to side. The officer administers the test by asking the driver to follow a small stimulus, such as the tip of a pen, with the eyes, without moving his or her head. The officer will look for a lack of smooth pursuit as the eyes move, and sustained jerking when the eye reaches the furthest point. The officer will also look for the onset of jerking prior to the eye reaching a 45-degree angle. Each of these three factors or “clues” are counted in each eye. If the officer observes a total of four out of the six clues, the officer will conclude that there is a 77 percent chance that the driver’s blood alcohol content is above .10 percent, and the driver will be arrested for Driving Under the Influence (DUI). However, the horizontal gaze nystagmus test is far from foolproof. Nystagmus, or involuntary jerking of the eye, occurs in everyone, regardless of whether he or she has been drinking. Alcohol and drugs magnify the nystagmus effect, but so can a variety of other factors, including illness or injury. Remember, the officer is looking for signs of mental and physical impairment to support a charge of DUI / DWI or driving while impaired. Experts conclude that when it comes to alcohol intoxication, mental impairment always comes before physical impairment. Therefore, the mere presence of physical impairment, such as horizontal gaze nystagmus caused by illness or injury, doesn’t necessarily support a charge of drunk driving. The conclusions of an officer who improperly administers the horizontal nystagmus test may not be admissible in court. The driver’s head and body must be facing the stimulus for this test to be valid. If the officer administers the test through the driver’s window while the motorist is sitting in the car, the test will not be valid, because the driver’s head will be turned at a 45-degree angle. An experienced DUI defense attorney can effectively challenge the results of the horizontal gaze nystagmus test by establishing when it was administered incorrectly. To safely drive a car, a person needs to be able to simultaneously control steering, breaking, and acceleration; react to constantly changing driving environment; and perform many other tasks. Alcohol affects one's ability to adequately divide attention, thus causing drivers to concentrate on more difficult tasks while ignoring simpler ones (i.e. ignore a traffic signal while concentrating on one's speed). Even if impaired, most people can successfully concentrate on a single task fairly well, but when impaired, most drivers cannot successfully divide their attention between multiple tasks at once. Divided attention tasks are designed to evaluate mental and physical capabilities a person needs to safely drive a car. They include information processing; short-term memory; judgment and decision making; balance; steady, sure reactions; clear vision; small muscle control; and coordination of limbs. A good FST will combine any two or more of these capabilities simultaneously. A test must also be reasonably simple for the average non-intoxicated person to perform. The most common FST's used by the police include the three standardized tests consisting of the Horizontal Gaze Nystagmus tests, Walk & Turn test, and the One Leg Stand test. These three tests have been validated as reliable indicators of intoxication, although they are not 100% accurate. Other commonly used, but non-standardized, tests include counting backwards, saying the alphabet (or a portion of it), finger count, and the stationary balance (Rhomberg) tests. In reference to the three standardized FST's, the government has admitted, and it is printed in the police officers DWI manual, that "IT IS NECESSARY TO EMPHASIZE THIS VALIDATION ONLY APPLIES WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARED MANNER; THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECTS PERFORMANCE; THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRITY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPRAMISED." Horizontal Gaze Nystagmus (HGN) This test refers to the involuntary jerking of the eye as it gazes to the side. When this occurs, the person is unaware of the jerking, and cannot control it. This involuntary jerking becomes noticeable as persons' blood alcohol increases. This is the most reliable of the FST's. However, nystagmus is a natural, normal phenomenon. Alcohol and certain drugs do not cause this phenomenon. When the HGN test is administered, the officer hold a stimulus (usually a pen) 12-15 inches in front of you eyes and asks you to follow the stimulus with your eyes, without moving your head. The officer will always start with the left eye and they are looking for 3 specific clues: 1. Lack of Smooth Pursuit: As the eye moves from side to side, does it move smoothly or does it noticeably jerk (bounce)? The jerking is similar to how windshield wipers jerk across a dry windshield. There is a standardized pace the officer is to have the eyes move side to side. From the center of the face, they are to move the eye all the way out to the side in approximately 2 seconds, then 2 seconds back to center, approximately 2 seconds to the other side, and 2 seconds back to center. They are to repeat the procedure. If they have the eyes move too fast, not only are they performing the test improperly, the government has admitted tha 2. Distinct Nystagmus at Maximum Deviation: When the eye moves as far to the side as possible and is kept in that position for several seconds, is there distinct jerking (bouncing) of the eye. The eye is to be moved all the way to the side, and kept there a minimum of 4 seconds. Interestingly enough, some people exhibit slight jerking of the eye at maximum deviation even when unimpaired! Also, if the eye is moved to the side too quickly, this may cause the nystagmus. 3. Onset of Nystagmus Prior To 45 Degrees: As the eye moves towards the side, does it start to jerk (bounce) before it reaches a 45-degree angle? When moving the eye out to 45-degree's, the movement of the eye should take approximately 4 seconds to reach 45-degrees. It is important to take the full 4 seconds when checking for onset. If the stimulus is moved too fast, the officer could take your eye beyond 45 degrees, or if the eye is moved to 45-degrees too quickly, th The maximum number of clues in each eye is 3, for a total of 6 clues. The original research has shown that if 4 or more clues are present, the person is intoxicated. This test has been shown to be accurate 77% of the time; therefore, it is inaccurate 23% of the time! ARREST - To stop; to seize; to deprive one of his liberty by virtue of legal authority. Whether a detention was an investigatory stop or a full-blown arrest is a question of law subject to de novo review. See U.S. v. Diaz-Lizaraza, 981 F.2d 1216, 20-22 (11th Cir.'93). Courts have stated that '[i]n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)); see also U.S. v. Vargas, 643 F.2d 296, 98 (5th Cir. Unit B'81); 2 John Wesley Hall, Jr., Search and Seizure 22:3 at p.87 (2d ed. '93). Strictly speaking, this particular formulation of the standard for determining whether an arrest has occurred is not a completely accurate statement of the law, for 'an investigatory stop is not an arrest despite the fact that a reasonable person would not believe he is free to leave.' (U.S. v. Hastamorir, 881 F.2d at 1556). This is so because even during an investigative stop, which by definition is not an arrest, it would be clear to a reasonable person so detained that he was not free to leave during the stop. See 2 LaFave, Section(s) 5.1(a) at 393 (1994 Supp. at 135). It appears that some Court's unfortunate articulation of the 'reasonable person/free to leave' test for judging arrests resulted from collapsing the Royer-Mendenhall standard for judging when a 'seizure' occurs into the test governing when such a seizure qualifies as an arrest. See United States v. Hammock, 860 F.3d at 393 (stating that an arrest occurs when ' 'a reasonable person would have believed he was not free to leave.'') (U.S., 446 U.S. at 554 (Stewart & Rehnquist, JJ., concurring)). Of course, whether a seizure has occurred and whether an arrest has occurred are separate and distinct inquiries, the latter class of detention being a subset of the former. See 2 LaFave, Section(s) 5.1(a) at 392-93; Richard A. Williamson, The Dimensions of Seizure: The Concepts of 'Stop' and 'Arrest', 43 Ohio St.L.J. 771, 802-17 (1982) (hereinafter 'Williamson'). So, what is the appropriate standard for judging whether an arrest has occurred, as opposed to a mere investigatory stop? No brightline test separates an investigatory stop from an arrest, and that consequently the question whether a seizure constitutes an arrest is one that one can only be answered on a case-by-case basis in light of 'all the circumstances.' An arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88)); see George E. Dix, Nonarrest Investigatory Detention in Search and Seizure Law, 1985 Duke L.J. 849, 927 ('Dix'); accord Berkemer v. McCarthy, 468 U.S. 420, ('84) (a person is 'in custody' for Miranda purposes when he is 'subjected to the restraints comparable to those associated with a formal arrest'). The inquiry is simply whether a reasonable person would have believed that he was 'under arrest' (as that term is commonly understood) at the time of his seizure. U.S. v. Patterson, 648 F.2d 625, 632 (9th Cir.'81); see generally Williamson, 43 Ohio St.L.J. at 815-16. Thus, if the circumstances surrounding a seizure would be viewed by a reasonable person as indicating that he would not be free to leave for an indefinite, or for an extended period of time, then that person has been placed under arrest. See 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Section(s) 3.8 at 297 (1984) ('[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.'); cf. U.S. v. Sharpe, 470 U.S. 675, 684-86, ('85) (noting that an investigative stop implies a 'temporary' detention, typically of short duration); Terry v. Ohio, supra, at 26, (noting that an arrest implies 'future interference with the individual's freedom of movement' beyond that attendant with an investigative stop); U.S. v. Mosquerra-Ramirez, 729 F.2d 1352, 56 (11th Cir.'84) (recognizing this temporal distinction between arrests and investigative stops). It is not the actual length of time of the detention that is the key here, but, rather, whether a reasonable person would perceive, while detained, on the basis of the totality of the circumstances (including, very importantly, the actions and representations of the seizing officers, see U.S. v. Brunson, 549 F.2d 348, 58 (5th Cir.), cert. denied, 434 U.S. 842 ('77)), that he is 'under arrest' as commonly understood, in that he is likely to be detained for an indefinite or extended period of time. An arrest can occur in an instant. An officer can put his hand on a person and state that that person is 'under arrest.' See U.S. v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S. 1009, ('90); cf. California v. Hodari D., supra, 499 U.S. at 626, (At common law, '[a]n arrest require[d] either physical force ... or, where that was absent, submission to the assertion of authority.'). An arrest can also occur in an instant even if the officers do not use that magic phrase. Cf. U.S. v. Setzer, 654 F.2d 354, 57 (5th Cir. Unit B. '81), cert. denied, 459 U.S. 1041 ('82). It may be argued that the standard of 'a reasonable person believing he is under arrest' will have its own difficulties, see Dix, supra, 1985 Duke L.J. at 929-31, but the common man or woman in this country, using common sense, understands this concept. Ordinarily, when a highway patrolman stops and detains a person for speeding, that person would not reasonably believe he or she is under arrest. See Pennsylvania v. Mimms, 434 U.S. 106 ('77) (police ordering an occupant out of a vehicle following a traffic stop does not result in an arrest). Similarly, if an officer stops a person on the street and states, 'I just want to ask you some questions,' that person would not, at that moment, reasonably believe that he or she is under arrest. See Florida v. Rodriguez, 469 U.S. 1, 5-6 ('84) (such an encounter is not even a 'seizure' under the Fourth Amendment). But if an armed officer, wearing a raid jacket, violently seizes a person, forces him to the ground, and places him in handcuffs (or other restraints), would not that person reasonably believe he was under arrest? Of course he would. Cf. U.S. v. Tookes, 633 F.2d 712, 715 (5th Cir. Unit B. '80). The difference is that in the first two examples the totality of the circumstances would lead the person detained to believe that his detention would be brief, whereas in the last example there is nothing in the situational context that would lead him to reasonable believe that he would soon or very shortly be permitted to leave and go on about his business. When weighing the various factors that may distinguish an investigative stop from an arrest, e.g. the number of officers present, the officer's show of force, and the use of physical restraints, see U.S. v. Hammock, supra, at 393, such an inquiry must, in the end, be guided by ''common sense and ordinary experience.' ' U.S. v. Hastamorir, supra, at 1556 (quoting U.S. v. Espinosa-Guerra, 805 F.2d 1502, 09 (11th Cir.'86)) (further citation omitted). And in the 'common sense' view, when an individual is directed to leave his house (or that of a friend) by the police, is then immediately handcuffed by armed officers, and is forced to lie down on the ground in the presence of almost a dozen FBI agents wearing raid jackets, in a neighborhood that has been cordoned off by marked and unmarked police vehicles, such a person could not reasonably believe that he would, soon or shortly, be free to leave, and, therefore, he would reasonably believe that he has been subject to an arrest, rather than a mere investigatory stop. See U.S. v. Hawkins, 59 F.3d 723, 727 (8th Cir.'95) (suspect under arrest when removed from his bedroom and handcuffed in the hallway); U.S. v. Morgan, 743 F.2d 1158, 1164 (6th Cir.'84) (suspect under arrest when ordered to exit his house by several police officers who had surrounded his house), cert. denied, 471 U.S. 1061 ('85); U.S. v. Williams, 630 F.2d 1322, 1324 (9th Cir.) (same under similar facts), cert. denied, 449 U.S. 865 ('80); see also Oliveira v. Mayer, 23 F.3d 642, 645-46 (2d Cir.'94) (suspect under arrest when he was handcuffed by armed officers after being told to exit his vehicle), cert. denied, 115 S.Ct. 721 (1995); U.S. v. Anderson, 981 F.2d 1560, 65-66 (10th Cir.'92) (same under similar facts); U.S. v. Del Vizo, 918 F.2d 821, 824-25 (9th Cir.'90) (same); U.S. v. Gentry, 839 F.2d 1065, 1070 (5th Cir.'88) (same). An arrest does not necessarily and automatically result only from the use of physical restraints (e.g., handcuffs), U.S. v. Hastamorir, supra, at 1557; U.S. v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.'85), or only from the officers' show of force (e.g. drawing their weapons), U.S. v. Roper, 702 F.2d 984, 988 (11th Cir.'83), it cannot be seriously doubted that these factors, when used in conjunction, would ordinarily lead a reasonable person to believe that he is under arrest, cf. 2 LaFave, supra, Section(s) 5.1(a) at 390-91; 3 id. 9.2(d) at 366-67, especially when such a seizure follows directly on the heels of an official directive, or even a 'request,' to leave the sanctuary of one's home. Under one view, an arrest under the Fourth Amendment, would only occur when the police recite the magic words, 'You are now under arrest,' or perhaps after the passage of a considerable period of time. Such a result is plainly inconsistent with the precedent of the Supreme Court, Dunaway v. New York, 442 U.S. 200, 212-13 ('79) (whether a suspect was told that he was 'under arrest' is irrelevant to determining whether he was, in fact, under arrest). When it is clear that the officers have resorted to such restrictive seizures of individuals (handcuffing them at gunpoint) in order to investigate their suspicions of prior criminal activity, the detention of the suspects is sufficiently serious to constitute an arrest requiring probable cause, even if the officers did not formally advise the suspects that they were 'under arrest' (or even if the officers did not intend to effect a 'formal' arrest). U.S. v. Diaz-Lizaraza, supra, at 1221-22; see also U.S. v. Vargas, supra, at 298. Arrest In Civil Cases, Practice. An arrest is the apprehension of a person by virtue of a lawful authority, to answer the demand against him in a civil action. To constitute an arrest, no actual force or manual touching of the body is requisite; it is sufficient if the party be within the power of the officer, and submit to the arrest. Barewords, however, will not make an arrest, without laying the person or otherwise confining him. It is necessarily an assault, but not necessarily a battery. Arrests are made either on mesne or final process. An arrest on mesne process is made in order that the defendant shall answer, after judgment, to satisfy the claim of the plaintiff; on being arrested, the defendant is entitled to be liberated on giving sufficient bail, which the officer is bound to take. 2. When the arrest is on final process, as a ca. sa., the defendant cannot generally be dis charged on bail; and his discharge is considered as an escape. In all governments there are persons who are privileged from arrest in civil cases. In the United States this privilege continues generally while the defendant remains invested with a particular character. Members of congress and of the state legislatures are exempted while attending the respective assemblies to which they belong parties and witnesses, while lawfully attending court; electors, while attending a public election; ambassadors and other foreign ministers; insolvent debtors, when they have been lawfully discharged; married women, when sued upon their contracts, are generally privileged; and executors and administrators, when sued in their representative characters, generally enjoy the same privilege. The privilege in favor of members of congress, or of the state legislatures, of electors, and of parties and witnesses in a cause, extend to the time of going to, remaining at, and returning from, the places to which they are thus legally called. The code of civil practice of Louisiana enacts as follows, namely: Art. 210. The arrest is one of the means which the law gives the creditor to-secure the person of his debtor while the suit is pending, or to compel him to give security for his appearance after judgment. Art. 211. Minors of both sexes, whether emancipated or not, interdicted persons, and women, married or single, cannot be arrested. Art. 212. Any creditor, whose debtor is about to leave the state, even for a limited time, without leaving in it sufficient property to satisfy the judgment which he expects to obtain in the suit he intends to bring against him, may have the person of such debtor arrested and confined until he shall give sufficient security that be shall not depart from the state without the leave of the court. Art. 213. Such arrest may be ordered in all demands brought for a debt, whether liquidated or not, when the term of payment has expired, and even for damages for any injury sustained by the plaintiff in either his person or property. Art. 214. Previous to obtaining an order of arrest against his debtor, to compel him to give sufficient security that be shall not depart from the state, the creditor must swear in the petition which he presents to that effect to any competent judge, that the debt, or the damages which he claims, and the amount of which he specifies, is really due to him, and that he verily believes that, the defendant is about to remove from the state, without leaving in it and lastly, that he does not -take this oath with the intention of vexing the defendant, but only in order to secure his demand. Art. 215. The oath prescribed in the preceding article, ulay be taken either by the creditor himself, or in his absence, by his attorney in fact or his agent, provided either the one or the other can swear to the debt from his personal and direct knowledge of its being due, and not by what he may know or have learned from the creditor he represent. Art. 216. The oath which the creditor is required to take of the existence and nature of the debt of which he claims payment, in the cases provided in the two preceding articles, may be taken either before any judge or justice of the peace of the place where the court is held, before which he sues, or before the judge of any other place, provided the signature of such judge be proved or duly authenticated. Vide Auter action pendant; Lis pendens: Privilege; Rights. Arrest, In Criminal Cases. The apprehending or detaining of the person, in order to be forthcoming to answer an alleged or suspected crime. The word arrest is more properly used in civil cases, and apprehension in criminal. A man is arrested under a capias ad respondendum, apprehended under a warrant charging him with a larceny. It will be convenient to consider, 1, who may be arrested; 2, for what crimes; 3, at what time; 4, in what places; 5, by whom and by what authority. Who May Be Arrested. Generally all persons properly accused of a crime or misdeameanor, may be arrested; by the laws of the United States, ambassadors (q. v.) and other public ministers are exempt from arrest. For what offences an arrest may be made. It may be made for treason, felony, breach of the peace, or other misdemeanor. At What Time. An arrest may be made in the night as well as in the day time and for treasons, felonies, and breaches of the peace, on Sunday as well as on other days. It may be made before as well as after indictment found. At What Places. No place affords protection to offenders against the criminal law; a man may therefore be arrested in his own house, (q.v.) which may be broken into for the purpose of making the arrest. Who May Arrest And By What Authority. An offender may be arrested either without a warrant or with a warrant. First, an arrest may be made without a warrant by a private individual or by a peace officer. Private individuals are enjoined by law to arrest an offender when present at the time a felony is committed, or a dangerous wound given. Peace officers may, a fortiori, make an arrest for a crime or misdemeanor committed in their view, without any warrant. An arrest may therefore be made by a constable, a justice of the peace, sheriff, or coroner. Secondly, an arrest may be made by virtue of a warrant, which is the proper course when the circumstances of the case will permit it. H.G.N. - Maryland DUI Defense The Administration of theStandardized Field Sobriety Tests Horizontal Gaze Nystagmus Note: This is prosecution oriented information written with a view towards law enforcement and justification of the HGN tests. Please be aware that HGN testing as a field sobriety test is fraught with problems, inaccuracies, false and voodoo science, and just plain misunderstanding in its administration and application The police officer is trained in the Maryland DUI\Standardized Field Sobriety Testing Course to ideally utilize a penlight at roadside to assist in the administration and observation of potential Nystagmus in the suspect's eyes. Use of a flashlight is not recommended due to the probability of casting of shadows which will make it more difficult to make a fair assessment of the presence of Nystagmus. This may obviously create a problem for the suspect in following the stimulus as it will cause an artificial blinding. The Horizontal Gaze Nystagmus Test is not a test of vision but it is imperative that the suspect be able to follow the stimulus in order to make an accurate scoring of this test. The suspect must be instructed to look straight ahead, keeping the head still while following and focusing on the stimulus with the eyes until told to stop. The stimulus must be twelve to fifteen inches in front of the suspect's eyes for ease of focus. The officer is trained to receive an acknowledgement from the suspect that the stimulus is at a comfortable distance from the suspect's eyes and to document same. Even though this test is not a vision test, per se, eyeglasses are to be removed in order for the officer to make a more accurate determination of the final total points. If the suspect can not see the stimulus after removing the eyeglasses they must be allowed to perform it with them on. According to the manual, hard contact lenses are to be removed so as to avoid dislodging when the eyes are out at maximum deviation or to prevent damage to the eyes. The manual says not to administer the test if the suspect is wearing hard contacts. A person with a glass eye or only vision in one eye can not be given this test. An evaluation of just one eye and a doubling of the score, assuming that the other eye will render the same results is both erroneous and improper. If the suspect has what is known as the lazy eye condition, the officer is trained to test one eye while the other eye is covered by the suspects hand, then to switch same. A person who is color blind is not validated for this test as they will probably have a pathological Nystagmus which is normal, and natural for that person. Three to four percent of the general population will exhibit a pathological Nystagmus. This can be caused by some type of neurological disorder, brain damage, epilepsy or pathological disorder which the suspect is born with or of unknown etiology. A large disparity between the right and left eye can clue the officer into this problem. At an accident scene, if the suspect sustains a concussion, this may bring on a pathological Nystagmus thereby invalidating this test. Although very few test conditions affect gaze Nystagmus, there are certain administrative procedures that must be followed. As previously mentioned, the stimulus must be placed twelve to fifteen inches in front of the suspect's eyes. The stimulus should be held above eye level, so that the eyes are wide open when they look directly at it. Due to narrowness of certain individuals eyes it becomes more difficult to make a fair evaluation of the Nystagmus unless the eyes are wide open. If the officer believes that the Nystagmus might be there, it can not be scored, as the benefit of the doubt must be given to the person that is being tested. The officer is also trained to administer this test with the suspect looking into a quiet background, away from the police cruisers overhead. This is to avoid the probability of evaluating an induced condition known as opto-kinetic Nystagmus. This is brought on when a person focuses on several objects at one time or objects that are moving away. The quiet background that is recommended is away from the view of passing motorists. This opto-kinetic Nystagmus is a defense mechanism of the body in order to keep the eyes from tiring. There are numerous visual or other distractions that may impede this test. Certain environmental factors such as wind, dust, etc. may interfere with the performance of the Nystagmus test. As explained earlier, Nystagmus is the involuntary jerking of the eyes. In intoxication, three signs will often be observed. Each eye must be checked separately. The first clue that is looked for is known as smooth pursuit. What the officer is trained to look for is the suspect's inability to pursue a moving stimulus smoothly while focusing that stimulus being moved horizontally, from side to side. If the suspect moves his head to the side at any time, the score may be invalid regardless of which clue we are looking for. An example of what is being looked for is like a marble rolling across a smooth pane of glass. This will be a very smooth pursuit. If the suspect is under the influence, the eyes will bounce or jerk in similar fashion as that same marble, but now rolled across a piece of sandpaper. The officer is instructed to check the left eye first by moving the object to the officer's right. The object must be moved smoothly, at a speed of about two seconds to bring the suspect's eye as far to the side as it can go. Any choppy or shaky hand movements or movement that is too fast by the officer may induce a Nystagmus in the suspect's eyes and invalidate the scoring and test. The officer is instructed to make two or more passes in front of the eye to be absolutely certain that what they are seeing is Nystagmus and a valid clue. If this clue is scored as Nystagmus the suspect is assessed one point. If the suspect has this clue emanating in one eye, it is no guarantee that it will be exhibited in the other eye. This should be the easiest clue to see. After they have checked the first eye for the smooth pursuit clue, they must check the same eye for what is called distinct jerkiness at maximum deviation. This is accomplished by simply moving the object to the side until the eye has gone as far to the side as possible. At maximum deviation, no sclera or white will be showing in the corner of the eyeball. The officer must hold the eyeball at that position for two or three seconds, and observe the eyeball for distinct jerkiness. The jerkiness must be both distinct and obvious. If the officer can not make this distinction from a slight nystagmus, the benefit of the doubt must be given the suspect.The officer may make the mistake of not bringing the eyes out to side as far as they can go or too rapidly return the stimulus and incorrectly score this part of the test. The criteria of no white showing in the corner of the eye must be met. A Nystagmus may be incorrectly mistaken for physiological Nystagmus if the officer does not hold the stimulus out to the side for two or three seconds. In approximately 50% of the suspects they encounter, a physiological Nystagmus will be apparent when the eye initially arrives at maximum deviation. This is due to a person not normally following an object all the way to the side with their eyes, but turning their head to view that object. Consequently, a certain degree of discomfort is experienced, causing a slight twitching of the eyes at this location. If the officer brings the eyes out to the side and then immediately brings them back, he may be scoring this physiological Nystagmus inappropriately. Everyone has a physiological Nystagmus, but it is not visible to the naked eye. The reason it exists is to exercise the eye muscles, lubricate them, and prevent atrophy. Remember the jerkiness must be distinct and obvious to be scored a point. Finally in regards to the Horizontal Gaze Nystagmus, is the last clue known as angle of onset. This is the most difficult to evaluate. If a suspect exhibits this clue in one eye, the probability increases that all the other clues will be seen as well. This does not work in reverse though. If a suspect has any of the first two clues, it is no guarantee that the third clue will be there. Because the 45-degree angle is a key factor in assessing a suspect's degree of alcohol influence, it is important to know how to estimate that angle. In the manual and demonstration of this by the State Police instructor, an eight inch square template is shown to the students to assist them in estimating this angle, but is rarely, if at all used by the student or the instructor other than merely pointing out its existence. Even though this is the case, if used, this devise must be held up so that the suspect's nose is above the diagonal line. One edge of the template is centered on the nose and perpendicular to or at right angles to the face. The person is told to follow the stimulus until they are looking down the 45-degree diagonal. This obviously is used as practice to recognize the angle. A rule of thumb that is being taught is in order to estimate the 45-degree angle, the stimulus must be halfway between the suspect's ear and nose on the side being tested or just outside the shoulder area. The estimation of this angle is critical, since studies have shown that as the alcohol increases the angle will decrease. Although this may be the case, this angle should not be used to estimate a specific amount of alcohol in the bloodstream. In order to properly score this part of the test, the officer must move the object to the 45-degree angle of gaze, taking about four seconds. As the eye follows the object, the jerking is looked for. If Nystagmus is observed, the stimulus is stopped and the officer must make an observation that it is continuing at this point. If it continues, then the officer must make sure that there is still white showing in the corner of the eye and the angle must be estimated to be prior than 45-degrees. If it does not, the object must continue to be moved until the jerking does occur and continues or until the 45-degree angle is reached. If no white of the eye is showing, the eye has either been taken too far to the right, which would be maximum deviation that is being evaluated, or the person has unusual eyes that will not deviate very far to the side. The criterion of onset before 45-degrees only can be used if some white can be seen at the outside of the eye. Too often the officer incorrectly estimates the angle or scores this with no white showing in the corner of the eye or both. This test is deemed the most reliable test in determining probable cause to believe someone is under the influence of an alcoholic beverage. This depends on the proper administration, proper scoring, and proper training is adhered to. Even if this be the case it is still only 77% reliable. A score of four points out of possible six is all that is required. Even this test is not 100% as three or four subject's during law enforcement controlled drinking exercises have scored zero points on this test, yet had a BAC above a .10% and showed little or no other signs of intoxication. This test should not be administered if the suspect is in a supine position. It can be administered to them if they are sitting or standing as long as they are erect. At an accident scene, with a suspect lying down and this test performed, it would be invalid due to positional alcohol Nystagmus being the cause of the Nystagmus encountered. This is a vestibule type of Nystagmus that is evident when the amount of alcohol in the vestibule system is in unequal proportions to the amount of alcohol in the bloodstream and reacts to gravity such as the changing position of the head. Walk & Turn Note: This is prosecution oriented information written with a view towards law enforcement and justification of the Walk and Turn test as a filed sobriety test. Please be aware that the Walk and Turn test as a field sobriety test is fraught with problems, inaccuracies, false and voodoo science, and just plain misunderstanding in its administration and application In order to perform this DWI test it is required that it be performed on a hard, dry, level, non-slipping surface with sufficient room for the suspect to complete nine heel-to-toe steps. This test loses some validity when conducted in certain wind/weather conditions that counters this criteria. The manual calls for a straight line, which must be clearly visible on the surface but in the DWI course it is taught that the test can be performed parallel to the curb. Conditions must be such that the suspect would be in no danger if he or she were to fall. There are some people that this test should not be given to because even the average sober person would have difficulty with this test. People more than sixty five years of age or over fifty pounds overweight, or with any physical impairment that would affect their ability to balance should not be given this test. The officer is trained to take this into account when developing their probable cause to arrest. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes as this may diminish the validity of the results. Individuals who can not see out of one eye may also have trouble with this test because of poor depth perception and should not be given this test. The Walk and Turn test is an objective test based upon certain predictable errors that a person under the influence will display,as well as scoring factors that will give the officer a basis for passing and failing other than their subjective opinion. In order to properly administer this test it is important to understand what type of test this is. It is commonly referred to as a Divided Attention Test because it divides the suspect's attention between mental and physical tasks. The physical tasks include balance and coordination while the mental tasks include comprehension of verbal instructions, processing of information and recall of memory. While a person may be able to perform one task they may not be able to perform the other if under the influence of an alcoholic beverage. While the suspect is performing this test, the officer must observe the suspect from three or four feet away and remain motionless while the suspect performs the test. Being too close or excessive motion may cause the suspect to make errors they may not have committed otherwise. This will cause some validity of the results to be lost as even a sober person may have difficulty under these conditions. The officer must give good verbal instructions and accompany this by demonstrations when having the suspect perform this test. They must make sure that the suspect understands the instructions and are trained to receive an acknowledgement of same and to document that affirmative response. This test is scored in relation to eight scoring factors that can be seen in two separate stages. The first stage of this test is called the Instruction Stage. This will set the stage for the entire test. If the officer does not follow training and procedure during this stage, it may affect the validity of the entire test. The officer must verbally tell the suspect to assume the heel to toe stance and must demonstrate this. The suspect is told to place their left foot on the line and place their right foot on the line ahead of the left foot, with heel of right foot against toe of left foot. This must be demonstrated. In the absence of demonstration, instructions alone decreases the tests validity. The officer is instructed by way of training to make sure the right foot is in front of the left foot to start, in order to maintain uniformity of this test. This also becomes important later in the test during the turning evaluation. If the suspect is instructed or demonstrated improperly it may affect the suspect during this part of the test. After accomplishing the starting position, the officer must inform the suspect to remain in that position until they are told to start walking. The officer must make sure that the suspect understands this. There are two ways that the officer, if the procedures have been abided by, that the officer can assess a point to the suspect's performance. If the suspect cannot keep balance while listening to the instructions, a point is scored. This item is only scored if the suspect does not maintain the heel to toe position throughout the instructions. The officer is trained to be conservative in their scoring and not to score a point if the suspect sways or uses the arms to balance but maintains the starting position during this stage. A second scoring factor is known as starting too soon. This is given when the starts to walk before the officer instructs them to do so. This can only be scored if the officer specifically instructed the suspect not to start until told to begin and the suspect stated they understood this instruction. The second stage of this test is known as the Walking Stage. The officer is to explain the test requirements, using verbal instructions, accompanied by demonstrations. The suspect is informed again, that when told to start, they must take nine heel to toe steps, turn around, and take nine heel to toe steps back. The officer must demonstrate two or three heel to toe steps for the suspect. The officer then informs the suspect and demonstrates the same, that when the turn is performed, the suspect must keep the foot on the line, and turn by taking a series of small steps. If the officer demonstrates or instructs with the beginning wrong foot, the way a suspect turns will be affected also. The officer, then continues with informing the suspect to keep their arms at their sides while walking, watch their feet at all times, and to count their steps out loud. They must be told that they can not stop once they start walking. If the officer does not reiterate the question of understanding or gain an affirmative response the test may not be scored fairly and properly, thereby invalidating the results. At one time, the maximum score obtained on this test would be nine. Currently, this has been revised to eight. There are six scoring factors that can be observed in this stage. The first one is if the suspect stops while walking to steady themselves. The officer can not score this item if the suspect is merely walking too slow. The suspect must pause for several seconds after one step. If this occurs, the officer is trained to have the suspect begin from the point of difficulty instead of starting over, as this test loses sensitivity if repeated several times. Another scoring factor is referred to as not touching heel to toe. This can be very subjective unfortunately. If the suspect leaves a one half inch or more between the heel and toe or does not walk straight along the line they can only be assessed one point, no matter how many times this occurred. By subjective, I mean there is a probability the officer may be overly critical in their estimation of missing heel to toe or reference the suspect's style in walking. The officer can score a point, as well, if the suspect steps off the line. This means that one of the feet must be entirely off the line and not merely diagonal. Even if the suspect steps off twice, they are only given one point. During the instruction stage if the suspect sways or uses their arms for balance a point can not be scored. A point can only be scored if during the walking stage, the suspect raises one or both arms more than six inches from the side in order to maintain balance. If this is noticed to be the normal position of the arms, as in some bodybuilders, the officer is trained to take that into account and be conservative in their scoring. Any benefit of the doubt must be given to the suspect. The next way a suspect can be given a point is if they lose balance while turning. This item can only be scored if the suspect removes both feet from the line while turning or does not take several small steps, and pivots in one movement as in an about face movement. It is imperative that the officer has demonstrated and articulated this movement properly in order to be scored. It is important that the officer be conservative in their evaluation of this turn and not be overly critical. Finally, the last scoring factor is if the suspect takes the incorrect amount of steps. This item is scored only once, even if the incorrect amount of steps are taken in either direction. The suspect was instructed to look down at their feet while performing this stage of the test and to count their steps out loud, but if they don't adhere to these instructions they can not be scored a point as these are not one of the scoring factors. There are two ways that the suspect can receive a maximum of eight points on this test. If they step off the line three or more times or they can not do the test. If they can not do the test, this must be explained by the officer. A degree of reliability has been attached to this test of 68%. If the suspect receives two total points on this test, the officer is trained to use this as probable cause to believe that the suspect is under the influence of an alcoholic beverage and to make an arrest. One Leg Stand - Maryland DUI Defense One Leg Stand Test for DUI Note: This is prosecution oriented information written with a view towards law enforcement and justification of the One Leg Stand Test as a filed sobriety test. Please be aware that the "One Leg Stand" test as a field sobriety test is fraught with problems, inaccuracies, false and voodoo science, and just plain misunderstanding in its administration and application In order to perform this test, it must be performed on a hard, dry, level, non-slippery surface. Conditions must be such that the suspect would be in no danger if he or she were to fall. Certain wind/weather conditions obviously may interfere with and affect the validity of this test. This test should not be given to persons who are more than sixty-five years of age, more than fifty pounds overweight, or with physical impairments that interfere with balance. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes as this may diminish the reliability of the results. The officer is trained not to give this test if there is not adequate lighting to perform it. In total darkness, even the average, sober person may have difficulty with this test, due to their visual frame of reference being taken away. It is imperative that the officer observe the DWI suspect from at least three feet away, and remain as motionless as possible while the suspect is performing this test. If this is not done, the test may be interfered with and ultimately affect the results and validity. In the administration of this DWI test, there is also two separate stages involved. The first stage is also called the Instruction Stage. The test is initiated by giving verbal instructions, followed by and accompanied by demonstrations of those instructions. The officer is trained to advise the suspect to stand with their heels together and arms down at their sides. The officer must demonstrate this. The officer must also inform the suspect not to start the test until told to do so, and must receive an indication from the suspect that they understand the instructions so far and to document this acknowledgement. There are no scoring factors involved until the suspect is into the next stage which is called the Balance and Counting Stage, unless the suspect can not perform the test at all. This would give the suspect a maximum score of four points and would necessitate explanation on the part of the officer. In the Balance and Counting Stage, the officer is required to explain the test requirements further by instructing the suspect to stand on one leg, holding the other foot in front, while the officer demonstrates. The suspect should be allowed to stand on either leg that they wish. The suspect is instructed to keep the foot raised about six inches off the ground. The officer demonstrates this and should advise the suspect if it isn't to the officer's satisfaction. The suspect is further instructed that while they are standing, they will count out loud for 30 seconds, and the officer will demonstrate the count as "one-one thousandth, "two-one thousandth, etc., all the way to thirty-one thousandth. The suspect is told to look down at their foot while counting and throughout the entire test, to keep their arms at the sides at all times. They are told to refrain from hopping or swaying while standing. The suspect must again acknowledge that they understand the instruction to retain validity of the test. The test is then begun. A suspect may be scored a point for the following reasons. If the suspect sways while balancing. The officer is trained not to be too critical in this scoring as the suspect is a living, breathing person, and some sway will be noticed as a result of this. The swaying that can be scored is a marked sway, such as a back-and-forth motion while the suspect maintains the one-leg-stand position. Another scoring factor is when the suspect uses the arms for balance in respect to having their arms six or more inches from the side of the body. Again it must be taken into account, the distance from the body that the suspect might normally start with, such as in the case of bodybuilders. If the suspect puts their foot down, regardless of how many times, they are only given one point on this scoring factor. The suspect should be allowed to continue from the point of difficulty as this test may lose sensitivity if repeated several times. The suspect has been instructed to keep watching their raised foot and to count out loud, but if they do not follow either of these instructions, they are not scored any points, as it is not a part of any scoring factor. If the suspect counts too slow it is imperative that the officer stop the test after thirty seconds have elapsed as this may affect the scoring and validity of the test. The officer is trained to time thirty seconds of total test time. If the suspect counts too fast the officer is instructed to slow them down. Finally, the last scoring factor in this test is when a suspect hops on one foot. This is scored only if they resort to hopping on the anchor foot in order to maintain balance. It should not be scored if the suspect is having difficulty by moving the anchor foot back and forth. The officer is supposed to be able to distinguish this as part of their training and to allow the suspect this benefit. The suspect can receive a maximum score on this test in two ways. This will happen if the suspect puts their foot down three or more times during the thirty second count, or otherwise demonstrates that they can not do the test. The officer must be able to articulate why they felt the defendant could not do this test. The degree of reliability attached to this test if it is demonstrated and scored properly is 65%. The officer is trained to use this as probable cause to arrest the suspect for DWI. For purposes of the arrest report and courtroom testimony, the officer is trained that it is not simply enough to report the suspect's "score" on the three tests. The numeric scores are only important to the police officer in the field to determine probable cause. It is insufficient to secure a conviction, and must be accompanied by more descriptive evidence. The officer is trained that they must be able to describe how the suspect performed, and exactly what the suspect did when he or she performed the test and when these clues occurred. The manual provided to the officer has a standard note-taking guide which should be utilized to assist the officer and prove the case. In conclusion, these three tests are the standard for all field sobriety tests. They are the most reliable field tests and should be used in place of any other tests that are being used by police officers in New Jersey. They are the most objective and reliable tests for developing probable cause to make an arrest for a violation of the New Jersey Drinking Driving Law. Finally, it is important to point out that, nowhere in these tests does the officer require that the suspect close their eyes to perform the test. This will invalidate the reliability of any test. Field sobriety tests Police administer a one-leg-stand test after a crash. One of the most controversial aspects of a DUI stop by a police officer involve the Field Sobriety Tests (FSTs). FSTs are heavily subjective to the opinion of the arresting officer. Many sober people are unable to perform the tests properly with a false positive rate of 23% and some are even arrested for failing the tests.[12][13][14] The walk-and-turn test is only 68% accurate, and the one-leg stand test is only 65% accurate in healthy individuals, when determining if a person is under the influence. People with medical conditions, injuries, 65 years or older, and 50 pounds or greater overweight cannot be accurately judged by these tests. The officer will administer one or more field sobriety tests (FSTs). FSTs are "divided attention tests" that theoretically test the suspect's ability to perform the type of mental and physical multitasking that is required to operate an automobile. However, these tests can be problematic for people with nonobvious disabilities affecting proprioception, such as Ehlers-Danlos syndrome. The most commonly administered FSTs include: * horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction.[15] * walk-and-turn (heel-to-toe in a straight line). (This test is designed to measure a persons ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.[16]) * one-leg-stand. * modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test). * finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger). * recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this.). * touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1). * count backwards from a number such as 30 or 100. * breathe into a "portable or preliminary breath tester" or PBT. Although most law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. In some states, such as Ohio, only the standardized tests will be admitted into evidence, provided they were administered and objectively scored "in substantial compliance" with NHTSA standards (ORC 4511.19(D)(4)(b)).[17] FSTs are more effective at determining the level of impairment than they are at estimating the driver's blood alcohol concentration (BAC). However, studies question whether the tests increase the officer's ability to judge either. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DUI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able to drive. This study showed the possible inaccuracy of FSTs.[18] An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. Called variously a PAS ("preliminary alcohol screening") or PBT ("preliminary breath test"), the units are small, inexpensive versions of their larger, more sophisticated instruments at the police stations, the EBTs ("evidentiary breath test"). Whereas the EBTs usually employ infrared spectroscopy, the PAS units use a relatively simple electrochemical (fuel cell) technology. Their purpose, along with other FSTs, is to assist the officer in determining probable cause for arrest. Although because of their relative inaccuracy they were never intended to be used in court for proving actual blood-alcohol concentration, some courts have begun to admit them as evidence of BAC. [edit] Probable cause to arrest Main article: Probable cause If the officer has sufficient probable cause that the suspect has been driving under the influence of alcohol, they will make the arrest, handcuff the suspect and transport them to the police station. En route, the officer may advise them of their Miranda rights and their legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine. Laws relating to what exactly constitutes probable cause vary from state to state. In California it is a refutable presumption that a person with a BAC of .08 or higher is driving under the influence. However, section 23610(a)(2) of the California Vehicle Code states that driving with a BAC between .05 and .08 "shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage."[19] [edit] Chemical test At the police station, the arrestee will be offered a chemical test of breath, blood or, much less frequently, urine. Breath test results are usually available immediately; urine and blood samples are sent to a lab for later analysis to determine the BAC or possible presence of drugs. If the arrestee refuses to submit to chemical testing, they will usually be booked for driving under the influence; there will be no evidence for filing the second charge of driving with .08% blood alcohol content. In some cases the arrestee may be charged with DUI even after passing a breathalyzer test if he or she refuses also to take subsequent urine or blood tests. However, the refusal will carry increased penalties on the driving under the influence charge (typically a longer license suspension and/or an increased jail sentence), and the act of refusing may be admissible in court as evidence of "consciousness of guilt". In some states, refusal to submit to a chemical test can result in an automatic suspension of driving privileges, regardless of whether the suspect is convicted of DUI.[20] In an increasing number of jurisdictions, if the suspect refuses to take a chemical test the police in some states may restrain the individual and forcefully withdraw blood.[21] This is particularly common in situations involving an accident with injury or death. In some jurisdictions this may require obtaining a warrant from a judge. Some commentators, such as Brown University's Jacob Appel, have criticized the role of medical personnel in this process. According to Appel, "If physicians acquiesce today in the removal of a resistant patient's blood, soon they may be called upon to pump the contents of an unwilling patient's stomach or even to perform involuntary surgery to retrieve an evidential bullet."[22] While chemical tests are used to determine the driver's BAC, they do not determine the driver's level of impairment. However, state laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher (see blood alcohol test assumptions). Breath and urine tests can only estimate the BAC at the time the test is taken, which can be different than when the vehicle was actually operated.[23] [edit] Booking and charging If it is determined after arrest that the person's blood alcohol concentration is not at or above the legal limit of .08, they will probably be released without any charges. One may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions and/or performance on the field sobriety tests. And if there is suspicion of drug usage, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE). Assuming sufficient evidence of impaired driving from drugs, the arrested may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs. Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until they are deemed sober enough to be released on bail or on his "own recognizance" ("O.R."). A date to appear in court for an arraignment will be given to them. If they cannot make bail or is not granted O.R., they will be kept in jail to wait for the arraignment on remand.