Field Sobriety Tests

Sentencing Enhancements for Prior DUI Convictions in California

November 8, 2019 | The Law Offices of Susan L. Hartman

In a recent California appellate decision, a defendant appealed a judgment entered after a jury trial in which he was convicted of a DUI under Vehicle Code section 23152 and DUI with a blood alcohol content (BAC) of .08 or greater. The lower court found the defendant had been convicted of three prior DUI offenses and determined to be true the allegations for enhancement purposes that the defendant drove under the influence with a BAC of .08 or greater within 10 years of 3 prior DUI convictions under Section 23550. The lower court put in place a three year jail sentence.

The defendant claimed his identity was not established by certified minute orders presented as proof of prior convictions and therefore the lower court’s findings about his prior convictions were not bolstered by substantial proof. The appellate court disagreed.

The case arose when the police pulled over the defendant on I-110 after he was seen weaving and almost hitting another car. The officer saw the glossiness of the defendant’s eyes and observed he was slurring his words. He asked for help from the California Highway Patrol in connection with a DUI. The officer came to the scene and immediately saw the defendant showed signs and symptoms of intoxication such as slurred speech and red and watery eyes. The defendant claimed this was the result of one margarita. However, field sobriety tests showed he was impaired because of alcohol and his BAC was .187-.179.

One Leg Stand (OLS): A NHTSA Standardized Field Sobriety Test (SFST)

October 6, 2015 | The Law Offices of Susan L. Hartman

As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA: 1.) The horizontal gaze nystagmus, (HGN); 2.) The walk and turn, (WAT); and 3.) The one leg stand, (OLS). These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

The two previous blog articles discussed the HGN and WAT tests. This article will address the OLS test.

The NHTSA manual states that this “test requires a reasonably dry, hard, level, and non-slippery surface.” If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol. For instance, as a person ages, balance and coordination is more difficult. If a subject has any current or prior injuries to their back or legs, they suffer from inner ear problems, or they are overweight by 50 or more pounds, they may have problems performing the test. However, in my experience, officers often state, “I will take your concerns and medical issues into consideration,” and then they proceed with having the subject perform the test. Continue reading ›

Walk And Turn (WAT): One Of The Standardized Field Sobriety Tests (SFST’s)

September 30, 2015 | The Law Offices of Susan L. Hartman

As you will recall, Susan Hartman, of the Law Offices of Susan L. Hartman, attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier.

The course went through the three standardized field sobriety tests (SFST’s), as laid out by NHTSA: 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In the last blog article, the horizontal gaze nystagmus, or HGN, test was discussed. This article will address the walk and turn test, (WAT).

The NHTSA manual states that this “test should be conducted on a reasonably dry, hard, level, non-slippery surface.” If the person is wearing heels that are more than two inches, they should be given the choice to remove the shoes and perform the test barefooted.

There are many reasons why a person may not be able to adequately perform this test, regardless of their consumption of alcohol. Continue reading ›

The Standardized Field Sobriety Tests (SFST’s): Horizontal Gaze Nystagmus (HGN)

August 18, 2015 | The Law Offices of Susan L. Hartman

San Diego DUI defense attorney, Susan Hartman, of the Law Offices of Susan L. Hartman, recently attended The National Highway Traffic Safety Administration (NHTSA) and The International Association of Chiefs of Police (ICAP) approved DWI Detection and Standardized Field Sobriety Testing Practitioner Course, as presented by Mr. Robert La Pier. This is the very course law enforcement is trained in for DUI investigations, giving them the tools to determine if a person should be arrested for drunk driving.

During the training, which lasted three full days, Susan was tested through written exams and practical demonstrations. In the end, she passed the course and earned the certificate of completion.

According to NHTSA, there are only three standardized field sobriety tests (SFST’s): 1.) The horizontal gaze nystagmus; 2.) The walk and turn; and 3.) The one leg stand. These are the only tests that have been validated by NHTSA and should be used by law enforcement in evaluating each potential DUI. It should be noted that these tests were only validated to correlate to a specific blood alcohol content (BAC) and they are not be used to show impairment.

In this blog article, the horizontal gaze nystagmus, or HGN, will be discussed. The other two tests will be addressed in upcoming blog articles. Continue reading ›

Walk-And-Turn Test, Part Of The Field Sobriety Test (FST) Battery

September 19, 2013 | The Law Offices of Susan L. Hartman

The walk-and-turn test (WAT) is one of the three tests in the battery of field sobriety tests (FST’s) that the National Highway Transportation Safety Administration (NHTSA) recommends law enforcement use to evaluate a suspect to determine if they are under the influence, thus establishing probable cause to arrest for drunk driving.

Both the WAT and the one-leg stand tests are considered “divided attention” tests, where a person’s attention is on both mental and physical tasks. The third test in the battery is called the horizontal gaze nystagmus test (HGN), which tests the subject’s jerking or bouncing of the eye.

The walk-and-turn test if often referred to as the “walk the line” test. The officer first instructs the subject on how to do the test and then the test is performed. The officer is to explain to the suspect that s/he is to walk nine steps, heal to toe, with their arms at their sides, without stopping, while watching their feet the entire time, counting the steps out loud. Then the person is to turn on one foot and face back in the direction where s/he was before, and then walk another nine steps, heal to toe back to the original location.

While this is being done, the officer is looking for eight clues of impairment: 1.) The subject cannot keep balance while listening to the instructions; 2.) Begins the test before the instructions are done being given; 3.) Once the walking begins, the subject stops to regain balance; 4.) Does not touch heal-to-toe; 5.) Steps off the line; 6.) Uses arms to balance; 7.) Makes an improper turn; and, 8.) Takes an incorrect number of steps.

If the person is unable to stay on the line and steps off three or more times, or they are in danger of falling, the test is stopped, and the person fails this test.

Each clue is graded as one point even if the same clue is observed more than once. According to Stuster & Burns, the 1998 NHTSA study, if two clues are found, there is a .79% chance the person’s blood alcohol concentration (BAC) is .08% or higher. This still means that 2 out of every 10 people who were determined to be impaired using this test did not actually have a BAC of .08% or greater.

There are many factors that can make this test unreliable and invalid. It must be done on a level, hard, non-slip surface. The person should not be elderly, obese, frail, or suffering from a physical or mental disability. If the subject’s shoes have a 2″ or greater heal, they should be given the option to remove their shoes. In addition, there should not be any other distractions such as passing cars and the officer conducting the test should be still after giving the instructions.

If you have been arrested and charged with misdemeanor driving under the influence, you owe it to yourself to hire an exclusively DUI defense firm to vigorously defend your case. Each case is fact specific, and there may be defenses in your case that can lead to reduced charges with less punishment or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. For information about a specific case, speak to a drunk driving attorney in your area.

One-Leg Stand Test, A Standardized Field Sobriety Test (FST)

September 13, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, (NHTSA), has come up with three standardized tests that law enforcement uses in their drunk driving investigations to help determine if a suspect is under the influence. The three field sobriety tests, (FST’s), are the horizontal gaze nystagmus, (HGN), the walk-and-turn, and the one-leg stand. These together are called the FST battery. Officers use these and other non-standardized tests when conducting DUI investigations.

The one-leg stand test is considered a divided attention test because the subject has to focus on mental and physical tasks at the same time. It should be done on a hard, dry, non-slippery surface that is level. In addition, there should be adequate lighting.

At first the officer is supposed to give the subject instructions and demonstrate how to do the test. Then they ask the person if they understood the instructions and the subject performs the test. The subject is to stand with their heals together with their arms down by their side. Then the officer instructs the person to raise their leg six inches from the ground and while watching their raised foot, they are to count from 1001 to 1030. (See video demonstration.)

The test is performed while the officer looks for four clues. The clues are: 1.) The subject sways while balancing; 2.) Uses their arms for balance; 3.) They hop; and, 4.) They put their foot down. The officer gives one point for each clue seen during the test. Two or more points indicate the subject has a blood-alcohol level above .08. If the person puts their foot down three or more times within the 30-second test, it is considered a failure of this FST.

This test, when conducted using the NHTSA’s guidelines, has been determined in a 1981 study to be only 65% accurate in determining if a person’s BAC is above .10%. The studies were done again in 1998, using the .08 standard, and NHTSA claimed that the test is now 83% accurate in determining if a person’s BAC is at or above .08%. Still, this means about 2 out of every 10 people who were determined to have two or more clues were actually under the .08% standard.

A skilled San Diego drunk driving attorney can pick apart how the officer conducted the one-leg stand test, exposing flaws in the instructions, the demonstration, and how it was graded. If you have been arrested for DUI, do not just plead guilty! There may be defenses in your case that lead to reduced charges or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

Horizontal Gaze Nystagmus Test (HGN), Why HGN Cannot Be Deemed Reliable

August 29, 2013 | The Law Offices of Susan L. Hartman

The National Highway Transportation Safety Administration, NHTSA, has come up with three “standardized field sobriety tests” for law enforcement to use to aid in drunk driving investigations. One of the three tests is the horizontal gaze nystagmus, or HGN, test. (The HGN test was previously discussed in “Horizontal Gaze Nystagmus Test (HGN), How It Is Used In DUI Investigations.”)

Law enforcement is supposed to administer the HGN test using the guidelines that NHTSA has laid out to ensure the results are valid and reliable. Cops look for six clues, three in each eye. If four clues are found, the officer can determine that the subject’s blood-alcohol content is at or above a .10%.

There are many problems with the HGN test and how it is used by law enforcement to determine if someone is under the influence when conducting a DUI investigation. First off, many people have a natural nystagmus. Prior to the encounter in question between the cop and the suspect, the degree of the natural jerk or bounce in the eye is not known. Therefore, the officer cannot accurately correlate this to impairment.

Another issue is that many drunk driving investigations are done at night, on the side of the road with minimal lighting, with cars passing, and with the cop’s flashing lights on. This is an issue because lighting can affect the results of the test.

However, the biggest and most concerning issue with the HGN test comes from the 1983 NHTSA study that was conducted to prove that HGN and blood-alcohol content are related. NHTSA actually funded this study with the hopes of proving their hypothesis that the HGN test was valid and reliable. This presents a conflict of interest and is a biased study. According to ordinary scientific principles, an independent study by an unbiased group should have funded and conducted the research.

Additionally as alarming, the study found that the HGN test was 77% accurate in detecting whether a person’s blood-alcohol content, or BAC, was .10 or higher. This means that the findings actually proved that almost 1 in 4 people who law enforcement deemed to have a BAC of .10% or higher was in fact under the .10 standard!

So, assuming the officer conducts the test correctly using the NHTSA’s guidelines, the subject does not have a natural nystagmus, and the test is performed with proper lighting, according to the study, almost 1 out of every 4 people tested would be found to be under a .10% BAC. (Note: There has not been a study done using the current legal limit of .08%.) With such issues, this evidence should never come into a criminal courtroom to prove a person was under the influence for purposes of driving a motor vehicle…but it does.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

PAS Test: What Is It And Am I Required To Take It?

September 1, 2011 | The Law Offices of Susan L. Hartman

A PAS test is an acronym for preliminary alcohol screening test. This is a breath test that is conducted at the roadside before a person is arrested for drunk driving. The test is done on a portable breath analyzer or breathalyzer. The most common portable breathalyzer used by San Diego law enforcement today is the Alco-Sensor IV, which is manufactured by Intoximeters, Inc.In California, if a driver is stopped by law enforcement and they are suspected of being under the influence, the officer may ask the driver to take a PAS test. The PAS test is considered an investigation tool, as it is supposed to measure the blood alcohol content, or BAC, of the subject.

Under California Vehicle Code section 23612(i), the officer is required to advise you that you have the right to refuse such a test, unless you are under 21 or you are on probation for DUI.

This test can be unreliable and inaccurate. It is not recommended that you do the PAS test or any other field sobriety tests, as the officer will use these tests to bolster their argument that you are impaired for purposes of driving, giving them probable cause to arrest you for DUI.

However, If you agree to provide a breath sample using the PAS test and you blow below the legal limit of .08 BAC, you may still be arrested. The officer will often use other observations and assessments to conclude you are drunk driving.

If you are arrested for driving under the influence and you already provided a breath test using the PAS test, your obligation to submit a breath, blood, or urine test after a DUI arrest has not been completed. California Vehicle Code section 23612(a), is an implied consent law. This means if you drive a vehicle and you are lawfully arrested for driving under the influence, you are deemed to have given your consent to chemical testing. If you do not voluntarily provide a sample, you will be forced to.

California Court of Appeal Rules Evidence of a Refusal to Submit to a PAS Test is Not Admissible.

November 22, 2010 | The Law Offices of Susan L. Hartman

pas.officer.jpg The California Court of Appeal ruled in People v. Jackson that the trial court incorrectly allowed evidence in at trial that the defendant refused to take a preliminary alcohol screening test (PAS).

Defendant was arrested and was subsequently on trial for driving under the influence, DUI, in violation of Vehicle Code Section 23152 (a) & (b) . An officer was allowed to testify that the defendant refused to take the PAS test, even though he did agree to perform all the other field sobriety tests (FST’s).

After a conviction, the defendant appealed, claiming that the officer’s statements about his refusal should not have been admitted. The defendant cited Vehicle Code Section 23612(i), which states, “If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.”

In the appeal, the Respondent claimed that the trial court correctly admitted the evidence because the PAS test is simply another FST. When the defendant refused to submit a sample, he was demonstrating consciousness of guilt.

The Court of Appeal agreed with the Appellant “because it is logically consistent with the clear intent of the statute [VC 23612] and serves to protect the statutory right defined therein.” However, in this case, it was found to be harmless error and the Appellant’s conviction stood.