7.3 DEVELOPING A DEFENSE
7.301 Nature of Officer Training.
To draw any valid conclusion from the battery of tests, an officer must be trained to use them properly. Any breakdown in the procedure, from start to finish, increases the possibility that an improper arrest will be made and an innocent person will be convicted of a crime that carries a great social stigma and financial burden.
Once the officer determines from observation that a driver needs to be stopped and evaluated, the officer must be well-versed in the standardized field sobriety test battery to correctly administer the tests, observe the suspect's performance, and draw the proper conclusions.
The guidelines in the training manual specify that the tests must be given in a very precise manner, under stringent conditions, and under close observation. 1226 Although all police officers are trained to use coordination tests to determine whether an individual appears to be impaired, there is no single training standard in Virginia governing field sobriety testing, and training varies from jurisdiction to jurisdiction. Indeed, experienced practitioners will quickly learn that individual police officers continue to use a wide variety of tests beyond the three described above. Individual officers may also conduct the same tests differently. This can be true even among officers of the same department.
These tests were originally used by doctors as diagnostic tools to evaluate patients. Medical students are taught to administer the tests and interpret observations of patients who undergo them. Medical students are also taught that the test environment is extremely important to the validity of the test results. In the medical context, the tests are performed in a well-lighted, warm, and comfortable examination room. The floor should be flat and smooth to allow the patient to perform to the best of his or her ability. There should be no outside distractions that may interfere with a patient's understanding of the directions. These guidelines are considered an absolute minimum to obtain any usable information from the tests. If counsel compares these medical examination standards with the environment of an ordinary traffic stop for suspected DUI—a dark, uneven roadside with the police cruiser's lights flashing and traffic speeding past—counsel will begin to appreciate the problems that may compromise the test results.
7.302 Most Common Field Sobriety Tests.
The most common tests administered in Virginia include the three NHTSA-approved tests and several others. The three approved tests are the walk and turn test, the one-leg stand test, and the horizontal gaze nystagmus (HGN) test. Other tests that are used include the nose-touch test, the finger-touch test, the alphabet test, the numbers test, and the statutory preliminary breath test (PBT). Usually, an officer will offer three of these tests in addition to the chemical preliminary breath test. There is no legal requirement for a driver to submit to any of these tests, 1227 including the PBT. 1228 Courts cannot consider one's refusal to submit as "consciousness of guilt," but that refusal can be used as evidence in determining whether the arresting officer had probable cause to make the arrest. 1229
Practitioners should use the NHTSA-approved battery of field sobriety tests as a baseline from which to critique the different versions of the tests being offered by an arresting officer. According to the 1998 study adopted by NHTSA, the combination of the three tests accurately predicts a BAC level of .08 or greater 91 percent of the time. The study indicated that, when used alone, the HGN test was accurate 88 percent of the time, the walk and turn was accurate 79 percent of the time, and the one-leg stand was accurate 83 percent of the time. 1230 Again, it is important to note that all of the experimental data was gathered in laboratory conditions and that each of the three tests had to be given and evaluated exactly as prescribed. Any variation in the administration of the tests tended to invalidate reliability and eliminated any assumption of the predictive value of the test results.
Many law enforcement officers, prosecutors, judges, and even defense attorneys seem to believe that these tests are foolproof. While the research evaluating the NHTSA-approved battery of field sobriety tests shows that they have strengths, it also indicates that they have serious weaknesses. 1231 To date, little research has been conducted fully addressing the shortcomings of the tests; in fact, it appears that some research has minimized their deficiencies. But as one begins to understand the tests themselves—not just the inferences drawn from the results—the weaknesses become obvious. Unfortunately, in the real world of DUI enforcement, the tests' limitations are often not taught or are quickly forgotten. Although these tests may be the best tools available, one can never be too cautious in relying on any test that may result in the loss of a person's freedom or driving privileges.
7.303 Questioning the Tests.
There are no studies that confirm the reliability of the myriad versions of this test battery used by police in Virginia. This deficiency prompts numerous defenses to the tests. Counsel should not hesitate to direct the court's attention to what appear to be flaws in a particular test. Furthermore, if an individual test is not administered in strict conformity with the NHTSA practice, its reliability may be called into question.
It is not uncommon for police officers, prosecutors, and even some judges and defense attorneys to discuss SFSTs in terms of "pass" and "fail." This is a gross oversimplification and is contrary to the framework of "clues" that NHTSA developed for assessing performance on the tests. For every instance in which test evidence is given by an officer, it should be "expanded" upon in cross-examination so that the judge can balance the totality of the individual's performance on each particular test. For example, if the officer testifies that, on the one-leg stand test, the accused put his or her foot down at count number 21 and used his or her arms to maintain balance, counsel should, on cross-examination, seek the officer's agreement that the accused did not sway, did not hop, and did not miscount. Counsel, in this hypothetical, would also want to explore the degree to which the accused had to use his or her arms for balance to elicit testimony that may be helpful in arguing the weight of that particular "clue." The testimony of what the client has done right is always available from the Commonwealth's own witness, and a useful source of this positive information can often be found in discovery. Many law enforcement agencies use some kind of standard form for officers to document performance on SFSTs in a DUI investigation. The content of these forms varies by agency, but most have some version of a check-the-box list for each clue associated with each SFST. Counsel should discover whether such a form was completed in the client's case, and if so, use the form on cross-examination to establish what the client did correctly for each test. This can be done by having the officer admit, on cross, that any boxes not checked represent aspects of the test the client performed satisfactorily.
7.304 Blanket Evidentiary Objection.
No matter which test an officer has used, counsel should never permit the officer to testify to the correlation between an accused's performance on a test and any level of alcohol impairment. While it is acceptable for an officer to testify that he or she instructed the accused to stand on one foot for 30 seconds and to further testify to what the officer observed, it is improper for an officer to summarily conclude that the accused performed the test "poorly" or that, as a result of the test, the officer concluded that the accused was impaired by alcohol. Counsel must be attentive...
