Michigan police officers employ a variety of field sobriety tests to determine whether a motorist is under the influence of alcohol. These tests are used to determine whether reasonable cause exists to arrest the motorist and typically introduced as substantive evidence at trial to convict the driver.
These field sobriety tests can be categorized as standardized field sobriety tests (SFSTs) and non-standard tests.
For many years, police officers used different tests across the nation. Some of these tests did not effectively or accurately discriminate between sober and intoxicated individuals. As a result, sober drivers were falsely arrested, while drunk drivers were improperly released.
In the early 1970s, the federal government commissioned a study to determine which field sobriety tests most accurately discriminated between motorists at and above the legal blood alcohol limit. Following laboratory and field validation studies, the standardized field sobriety test battery was developed. These tests include the horizontal gaze nystagmus evaluation (HGN), the walk and turn (WAT), and the one leg stand (OLS).
Each of the standardized field sobriety tests is taught to officers through a National Highway and Traffic Safety Administration (NHTSA) course, along with a systematic approach to analyzing DUI investigations detailing the vehicle in motion, stopping sequence, personal contact, exit from the vehicle, and field sobriety testing.
Michigan Field Sobriety Tests
The HGN evaluation
The HGN evaluation is an eye test that requires a motorist to follow a pen or fingertip as the object is moved horizontally before the subject’s face. This, along with the other two standardized field sobriety tests, are systematically administered by properly trained officers with objective clues for scoring the subject’s performance.
The WAT is more commonly referred to as the “heel-to-toe” test, except that it’s instructions, administration and scoring are objective and standardized.
The OLS requires a subject to stand on one leg, approximately six inches off the ground with arms at the subject’s side. The motorist counts, “one-one thousand, two-one thousand, three-one thousand” for thirty seconds. Again, like the HGN and WAT, the SFST battery requires systematic instructions, administration and scoring.
The WAT and OLS evaluations
Although these three tests are the best field sobriety tests currently available, they suffer large statistical margins of error. If the requisite number of clues are present, the HGN test will correctly catagorize the motorist as intoxicated 77 % of the time, while the WAT is 68% accurate and the OLS only 65% accurate. The presence of the requisite number of “clues” on the HGN and WAT permits the officer to correctly catagorize the driver as intoxicated 80% of the time.
These statistical numbers mean that a police officer will incorrectly identify a motorist in 1 out of 5 cases. Each year in Michigan, approximately 65,000 people are arrested for drunk driving. Of those people, this means that 13,000 people are potentially incorrectly identified as intoxicated through these tests.
Those numbers may be acceptable at the reasonable cause level. Maybe society would rather err on the side of improperly arresting potentially drunk people, getting them off the road. (That does seem to be the popular consensus, even though it runs contrary to everything our country stands for in terms of the presumption of innocence and guilt beyond a reasonable doubt.)
But consider the fact that these so-called tests are used as substantive evidence during trial! Essentially, police officers are allowed to testify that the driver’s eyes appeared to jerk, i.e. showed the presence of nystagmus, failed the WAT by starting too soon and raised his or her arms more than a few inches, and placed his or her foot down twice during the 30 second evaluation.
Lie detectors are not admissible in court even though they are between 85-95% accurate. If a motorist “failed” all three standardized field sobriety tests but passed a lie detector showing that he or she was not drunk, the field sobriety tests would be admitted into evidence, but the lie detector would be excluded. Why? And consider the fact that DNA evidence is excluded unless it is 99.99% accurate. A 95% match on DNA is not considered reliable evidence.
Also consider the fact that most Michigan police officers are sloppy. Even though we pay for their NHTSA SFST training through our tax dollars, more than 9 out of 10 Michigan police officers do not carefully administer the SFST battery. Even the NHTSA warns against deviating from the strict protocols of the test battery, Michigan police officers regularly deviate from the standardized instructions, improperly administer the test battery, and use homemade scoring criteria.
Police departments use DUI quotas and are afraid that if they don't make enough arrests, the state will lose federal funding.
Inside Edition recently ran an investigative report regarding two Florida motorists who were arrested after they “failed” the SFST battery. These two motorists were each subjected to breath testing that revealed absolutely no alcohol in their system. The police immediately subjected these motorists to blood testing, claiming that the drivers must be under the influence of drugs. Those tests revealed no drugs. The police claim they did nothing wrong.
One of our most frequently employed DUI expert witnesses, Tony Corroto, was interviewed on Inside Edition in connection with this report. You can watch the video here. Mr. Corroto said that police departments use DUI quotas and are afraid that if they don't make enough arrests, the state will lose federal funding.
The non-standardized tests currently in widespread use across Michigan are even worse than the SFST battery. “Count backwards from 98 to 72, skipping 83, with your head back, eyes closed, standing on one leg.” Ridiculous? Absolutely. But do these tests accurately determine whether a person is sober or intoxicated? Sometimes things as simple as reciting the alphabet might provide useful information, but how statically reliable are these results?
NHTSA studied evaluations such as the finger-to-nose, alphabet recitation, backward count, and a finger-count test. The finger-to-nose was soundly rejected because it was 60% inaccurate. In other words, flipping a coin was more accurate than that so-called “test.” But it is still used by Michigan police officers! The NHTSA likewise rejected the alphabet, backward count and finger-count, but acknowledge that these evaluations might be useful as preliminary screens to determine whether the standardized field sobriety tests should be administered.
Despite the statistical information regarding error rates present in the SFST battery as well as the shocking error rates present with non-standardized tests, police officer can testify in court about these tests.
The Maze Legal Group is actively challenging field sobriety tests in the trial and appellate courts at this time.