9.6.4.1 Overview
In 1987, NHTSA released its first DWI Detection and Standardized Field Sobriety Testing manual. I will attempt to describe any potentially important differences in the manuals over the years as compared to the most current 2006 edition.
The purpose of doing so is two-fold. One, some officers are familiar with the older guidelines. Generally, the tests and conditions favored the defendant more back then. If you are not trying to exclude the evidence by showing it does not conform to present standards, the way the officer administered it may benefit your client. Second, the purpose is to show the evolution of the Field Sobriety testing, and show places where NHTSA makes changes without validation. If you hire an expert, he may better be able to explain this.
For purposes of the manual, DWI detection means: “THE ENTIRE PROCESS OF INDENTIFYING AND GATHERING EVIDENCE TO DETERMINE WHETHER OR NOT A SUSPECT SHOULD BE ARRESTED FOR DWI VIOLATION[1].”
Like its present version, DWI detection was broken down into the three phases.
9.6.4.1 Phase I
Phase I is pretty similar to the present day version. However, the old cue of appears to be drunk[2], is now replaced by “appears to be impaired.”
9.6.4.2 Phase II
Phase II is also fairly identical to the present model.
9.6.4.3 Phase III
Phase III of Field Sobriety tests has encompassed changes over the years.
The clues for the Walk and Turn and One Leg Stand have remained the same over the years. The HGN fail point of 4 out of 6 clues is also the same, but it was administered and scored differently when it was first used.
9.6.4.3.1 Walk and Turn
The walk and turn previously required the person to “stand on a line[3]”, and “a straight line must be clearly visible on the surface. If no line is available, it is possible to conduct the test by directing the subject to walk in a straight line parallel with the curb, guardrail, etc.[4]”
The officer must observe the subject 3-4 feet away and remain motionless. Being too close or causing excessive motion will make it more difficult for the driver to perform, even if sober[5].
The instructions and grading were slightly different.
For the clue of loses balance while turning (presently improper turn), the officer would mark off if “The suspect removes the pivot foot from the line while turning. That is, record this clue if both feet are removed from the line. Also record this clue if the suspect clearly has no followed directions in turning; for example, he or she pivots in one movement instead of the several small steps movement that he or she was instructed to perform.[6]”
In the clue of“does not touch heel to toe,” the officer could mark off for not walking straight along the line[7]. Interestingly, the stepping off the line clue is the same as it presently is. So, if you step off the line, I gather you also did not walk straight on the line, and therefore you would fail the test as 2 clues is the cutoff for failure.
Clue #9 was “Cannot do test: Record a failure to complete test if the suspect steps off line 3 or more times, is in danger of falling, or otherwise demonstrates he or she cannot do the test”[8].
Test conditions are: “Walk and Turn requires a high, dry, level, nonslipping surface with sufficient room for the suspect to complete nine heel-to-toe steps. A straight line must be clearly visible on the surface. If no line is available, it is possible to conduct the test by directing the suspect to walk in a straight line parallel with a curb, guardrail, etc. Conditions must be such that the suspect would be in no danger if he or she were to fall[9].” I am not sure what a “high” surface is, but it does not sound very safe to me. (It was since changed to “hard”).
People more than 60 years of age (which is less than the 65 in the present edition), over 50 pounds overweight, or with physical impairments that affect their ability to balance should not be given this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. Individuals who cannot see out of one eye may also have trouble with this test because of poor depth perception[10].
9.6.4.3.2 One Leg Stand
Different instructions include “heels together and toes slightly apart[11].” Driver is specifically told to count out loud to 30, to keep arms at side throughout the test, and not to hop[12]. So, the officer is actually better informing the person how the test will be graded, as opposed to the present test.
The scoring on the OLS is the same as it is today.
Like the WAT, the officer should be at least 3 feet away and motionless. The test needs adequate lighting for the driver to have some visual frame of reference; in total darkness OLS is difficult even for sober people.
“Some people have difficulty with One Leg Stand even when sober. people (sic) more than 60 years of age, more than 50 pounds overweight, or with physical impairments that interfere with balance should not be given this test. Individuals wearing heels more than 2 inches high would be given the opportunity to remove the shoes[13].”
9.6.4.3.3. HGN
The HGN test was administered rather differently when it was first used.
NHTSA states there are a number of different kinds of nystagmus, all of them influenced by alcohol[14]. I personally disagree with this statement. If one has a natural nystagmus, or any of the nystagmuses that are not a horizontal gaze nystagmus, I do not believe alcohol will influence the outcome, except in certain circumstances when it might be more pronounced. However, just like the officer, I am not a doctor, so I could be wrong.
“Many people will show some jerking if the eyes move far enough to the side[15].”
Like the present test, the officer checked each eye for 3 things. Four clues out of six would be a failure. The first part of the test was the lack of smooth pursuit, although it was not specifically called that. It was referred to as “check pursuit (high speed pass)[16].”
The officer was told to “move the object smoothly, at a speed that requires about two seconds to bring the suspect’s eye as far to the side as it can go… Don’t hesitate to make two or more “passes” in front of the eye to be absolutely sure about this clue”[17]. This is different than the present version as the officer was told “Don’t hesitate to make two or more “passes.” So, it appears the officer could have done it once, twice, three times, etc. Under the present guidelines the officer must do it twice.
The second clue is distinct jerking at maximum deviation[18]. This is different than the present version as it is not called distinct and sustained nystagmus at maximum deviation. The officer was told to hold the stimulusat maximum deviation for two or three seconds[19] (as opposed to the present minimum of 4 seconds). Note, however, NHTSA previously stated that many people will show jerking at this position, and the previous research showed it in around half of the people. Like the present guidelines, NHTSA never explains what a distinct or pronounced jerking is.
The third clue is the same as it presently is; angle of onset prior to 45 degrees. My reading of the manual is that this test is administered the same then as it presently is. But, apparently the part of the NHTSA research that dealt with the 10% conjunctive got replaced with “some white” left showing in the eye[20].
The HGN test differs further in that the officer administered all three checks in the left eye, then all three checks in the right eye. The present version is to check for lack of smooth pursuit in both eyes, then nystagmus at distinct and sustained maximum deviation, then angle of onset in both eyes. Also, the officer was to hold the stimulus above eye level[21], instead of “slightly above eye level.” Finally, the officer does not check for equal tracking or equal pupil size.
Oddly, NHTSA claimed the test is 77% accurate to determine a BAC above 0.10. “Using this criteria, you will be able to classify correctly about 77% of your suspects with respect to whether they are drunk or sober[22].” This statement is just plain false. NHTSA specifically says the tests measure BAC only. They do not directly measure impairment. NHTSA’s original studies even indicated one cannot be correlated to the other.
[1] NHTSA 1987 at I-3
[2]Id at V-6
[3]Id at VII-4
[4]Id at VIII-6
[5]Id.
[6]Id at VIII-5
[7]Id at VIII-5
[8]Id at VIII-6
[9]Id at VIII-6
[10]Id.
[11]Id at VII-5
[12]Id at VIII-8
[13]Id at VIII-10
[14]Id at VIII-1
[15]Id.
[16]Id at VII-3
[17]Id at VIII-2
[18]Id at VIII-1
[19]Id at VIII-2
[20]Id at VIII-3
[21]Id at VIII-3
[22]Id at VIII-3