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FIELD SOBRIETY TESTS – WHAT IF POLICE DO NOT COMPLY WITH NHTSA REQUIREMENTS?

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The National Highway Traffic Safety Administration (NHTSA) has developed a series of “standardized” field sobriety tests for police to administer at roadside to assist officers in making decisions whether to arrest for DUI.  These tests include a horizontal gaze nystagmus test (HGN), a one leg stand test, and a walk-and-turn test.  “Standardized” means that the tests should be administered and scored in the same fashion by all police officers who conduct the tests prior to deciding whether to arrest for DUI.

NHTSA has developed a standardized protocol for administering and “scoring” these sobriety tests.[1]  This protocol includes specific instructions and demonstrations by the officer, so that the citizen will be aware of what he or she is actually being required to do on these tests.

So, what if the officer does not comply with the standardized protocol when the officer conducts these tests?  In other words, what if the instructions or demonstrations given by the officer, or the manner in which the officer conducts the tests, do not comply with the protocol developed by NHTSA?

NHTSA has stated in its Standardized Field Sobriety Testing training manuals that “IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.”[2]  This statement by NHTSA strongly suggests that information or “evidence” from these tests should not be considered by the officer or the courts if the officer fails to comply with NHTSA's standardized procedures in administering (or scoring) the tests.

Some Alaska courts have suggested that the results of field sobriety tests may be considered in determining whether there was probable cause to arrest even if the police deviate to some degree from the NHTSA's standardized procedures.  However, Alaska Appellate courts have also stated that if the officer fails to “substantially comply” with NHTSA's standardized procedures when conducting the test, the results of such tests may no longer have any evidentiary value in assessing whether one may be under the influence or have an illegal alcohol level.[3]

In a recent case litigated by the author (April, 2014) a police officer with 18 years' experience administered the entire HGN test in approximately 37 seconds.  On cross-examination by defense counsel, the officer acknowledged that if he had conducted the test in compliance with NHTSA standardized procedures, it would have taken approximately twice that time to properly administer the test.  The officer also acknowledged that he failed to administer each phase of the test at least twice, as required by NHTSA, to ensure that the nystagmus (jerking of the eyeball as it is following a stimulus) was in fact present.  The officer also acknowledged that NHTSA requires that the stimulus be held at least 4 seconds at maximum deviation during the HGN test.  The video of the arrest showed that the officer failed to hold the stimulus that long.

In this case the officer also failed to properly demonstrate the walk-and-turn test.  The officer actually turned the wrong direction when he was demonstrating the test, creating a test condition that essentially ensured that the client would not be able to perform the test without showing some “clues.”

The trial judge, after an evidentiary hearing, found that the officer's failure to comply with the NHTSA procedures when conducting these tests was substantial.  Because there was not significant evidence of intoxication if the results of these tests were excluded (although there was an odor of alcohol and admission to drinking some beer), the trial judge ruled that there was not probable cause to arrest.  The judge granted Slone's motion to suppress all evidence obtained after the arrest, including a later breath alcohol test result above the legal limit.  The prosecution then dismissed the case entirely.

A thorough knowledge of all of NHTSA's standardized field sobriety testing protocol can provide the DUI defense lawyer with ammunition necessary to successfully challenge the legality of a DUI arrest, where the officer fails to substantially comply with those defined procedures.  In the case above a DUI arrest by an 18 year veteran officer was held to be illegal, and the DUI charge was dimissed.

[1] See, e.g., Standardized Field Sobriety Testing Student Manual, August 2006 (U.S. Dept. of Transportation, National Highway Traffic Safety Administration).

[2] Id., 2006 Student Manual, at page VIII-19 (bold, capitalized letters in original).

[3] Ballard v. State, 955 P.2d 931, 941042 (Alaska App. 1998); Castro v. State, 1998 WL 16509, at p. 6, note 2 (Alaska App. Nos. A-6066, A-6086, April 8, 1998, unpublished) (HGN results are admissible unless “test procedures were so substandard as to preclude any reasonable juror from concluding that the results were meaningful.”)

Fred Slone

In practice since 1983 and widely regarded as the attorney with the most extensive knowledge of drunk driving laws, defenses, and the science behind alcohol testing, Attorney Fred Slone is often referred to as "the lawyer to see" for drunk driving defense in Alaska.

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