Published on December 7, 2009
There are three standardized field sobriety tests that police officers use under the guidelines of the National Highway Traffic Safety Administration (NHTSA): the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One-Leg Stand test.
Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. There are three things that police officers look for on this test: 1) Lack of smooth pursuit; 2) Distinct and sustained nystagmus (jerking) at maximum deviation (focused as far to the right or left as possible); 3) Onset of nystagmus within 45 degrees of the center of the face. If four or more of the six possible clues appear (three possible clues for each eye), there is probable cause to arrest for DUI.
In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. Police officers look for eight clues on this exercise: 1) the suspect cannot keep balance while listening to the instructions; 2) begins before the instructions are finished; 3) stops while walking; 4) does not touch heel-to-toe; 5) steps off the line; 6) uses arms to balance (i.e. the subject doesn't keep them at his side); 7) makes an improper turn; or 8) takes an incorrect number of steps. Two or more of these clues are sufficient for probable cause to arrest for DUI on this test.
In the One-Leg Stand test, the subject is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put his foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment: 1) swaying while balancing; 2) using arms to balance; 3) hopping to maintain balance; and 3) putting the raised foot down. Like the Walk-and-Turn test, two or more of these clues are sufficient for probable cause to arrest for DUI on this test.
Now, how many of you honestly thought of all of these things? How many of you have practiced taking these tests with these exact instructions? How many of you normally do the kinds of things that are done in these tests on a daily basis? For those of you who are not police officers, judges, or attorneys who have litigated DUI cases, I will bet that the answer to these questions is "no." I have administered these tests on sober people on a number of occasions, and guess what? They all had difficulties with these tests. And the HGN test is something I would go as far as saying is a test whose results cannot be controlled by the subject (remember, its INVOLUNTARY jerking of the eye). In short, these are not tests that one can "pass." Just something to think about.
James Bogen is an attorney in solo practice in Cincinnati. Any questions or comments can be directed to him at attorneybogen@yahoo.com.