Just How Reliable are the DREs
February 13, 2008
For many years we have questioned the reliability of so-called field sobriety tests as a means of determining the sobriety of an individual. While we would whole-heartedly agree with the proposition that such tests are indicative of some form of impairment, when one begins to think outside the box, he or she will quickly realize that impairments, which are endemic to multiple causes, are nearly always treated as alcohol related when the purpose for the administration of the test is to obtain evidence in an alcohol related operating offense.
Despite their frequent use, one can engage in a rather futile search to locate authority addressing the admissibility of these customary exercises. This is not to say that no authority exists. Last issue we discussed People v. Quinn, 153 Misc2d 139, 580 NYS2d 818. In our opinion, Quinn goes further than most in validating the use of such tests. Even so, the manner in which it does is of little help. Quinn did not deal with admission of the more commonly administered examinations, instead, Quinn sorted out detailed scientific questions as it held that conclusions based upon the DRE protocol were properly admitted. Even so, the Quinn court cited with approval People v. Jacquin, (1988) 71 NY2d 825, 527 NYS2d 728, to support the proposition that protocols covering psychophysical testing are admissible. We, however, do not read Jacquin as broadly. In Jacquin, the issue which was found to be properly before the court was whether admission of the results of physical performance tests need to be proceeded by the five-fold warning necessitated by the holding of the United States Supreme Court in Miranda v. Arizona. Holding they do not, the court similarly found the contention that specific responses to various questions should be suppressed were unpreserved.
Closer to the point is People v. Torrey, (1988, 3rd Dept) 144 AD2d 865, 534 NYS2d 807. In Torrey, the defendant claimed that the weight of the evidence was insufficient to warrant a conviction. While admissibility of the various field sobriety tests given the defendant was never placed directly at issue, the Third Department nonetheless took note that the defendant was observed swaying and staggering when attempting to touch the tip of his nose while standing with his feet together and his eyes closed. When asked to bend down and touch his toes and stand back up, he was again seen swaying back and forth by the Troopers. This evidence, found the court, when combined with his refusal to submit to a chemical test constituted sufficient credible evidence to support the verdict (supra., at 866).
Several years back we asked just how reliable are the standard field sobriety tests? Are they accorded sufficient acclaim within the scientific community to warrant admission of the conclusions drawn therefrom? Again, as within the legal community, the medical profession has been rather slow to address this issue, due in part, I'm sure, because the issue has little to do with diagnosing and treating disease.
When the prevailing analysis is used to determine drug impairment, it falls even further into doubt. No matter how strenuous the training, one fact remains. The administering officer is just a police officer. He or she has received virtually no training in the diagnosis and treatment of diseases which may mimic the effects of drugs upon the human body.
In any event, there may be a crack in the door. In Vol. 8, No. 2, (June 2001) issue of The Journal of Forensic Medicine, O'Keefe examined many of the tests we see on a day to day basis and drew the surprising conclusion that these common exercises are certainly not specific for drugs and concluded generally that they are not reliable for the determination of impairment by drugs. While the focus was largely upon tests administered for drug impairment, as will be apparent, many of the findings have relevance to alcohol as well.
In conjunction with police forces in the United Kingdom, the Strathclyde Police conducted a trial, during which period, Standardized Field Sobriety Tests (SFSTs) were applied
to suspect drivers at the roadside. The tests which were considered are those with which we are all intimately familiar; the one legged stand, the finger to nose test, the nine step walk and turn, and the Rhomberg test. For the purpose of the study, which was to evaluate the effectiveness of the proposed tests, twenty-five police surgeons who attended a program on drugs and driving received a questionnaire concerning the tests. Following the receipt of the results, an identical questionnaire was mailed to 101 police surgeons of which 45% responded. The results were compared with those received from those who attended the program.
In terms of methodology, the tests were administered in strict compliance with the NHTSA student training manual. Further, the determinations to be drawn, that is to say the clues, were identical. Following training in the administration of the tests, the physicians were examined as to their subjective beliefs as to the reliability of the tests for determining drug impairment.
The results were interesting indeed. Of those who attended the conference, 54% were content and willing to accept the tests generally while 46% had reservations. Of great interest, 96% of those in attendance were in favor of a second examination. Further, the attendees were questioned as to the need for an aggregate score to replace the clue system. AEighty-four percent of those in attendance found the need for such a system. When the results obtained from physicians with post doctorate training in forensics were analyzed, the author found only 32% of this group to be generally satisfied while 68% had reservations.
Viewing responses from those who did not attend the program, the author found 52% of the respondees were entirely happy to accept the tests while an astonishing 48% felt that the tests were either too difficult or too harshly assessed.
The doctors were thereafter asked to assess each test individually. The were also questioned as to whether they believed a second test to be of merit. On the whole, their responses should cause great pause for those willing to blindly accept the so-called DRE. As noted by O'Keefe:
Several findings were clearly noted:
1. A significant percentage of Police Surgeons in Strathclyde have concerns regarding the Standardized Field Sobriety Tests.
2. The results of the questionnaire of doctors attending the conference on drugs and driving are, by and large, mirrored by doctors responding to a postal questionnaire.
3. The tests which caused the most concern are the Walk and Turn Test, and the One Leg Stand.
4. Conference attendees with a postgraduate qualification were, in general, significantly more concerned about the tests than those doctors without postgraduate qualifications.
5. Conference attendees with less than 5 years experience were most satisfied with the tests, while attendees with 20 years plus experience were least satisfied with the tests.
6. A high percentage of doctors approved of both a 2nd examination, for the purpose of comparison, and also an aggregate score system for quantification of clinical signs.
7. Conference attendees with 20 years plus experience were 100% in favor of both a 2nd examination and also an aggregate score system.
8. Postal respondees shared at least the same level of concern with the tests as the conference attendees, indeed more than 50% of these doctors expressed reservations in every single test, with 65% of doctors concerned regarding Walk and Turn and One Leg Stand Tests.
Most enlightening is an examination of the responses concerning the individual tests. Examining first the tests in general, 66% of those with up to five years as a practicing police surgeon approved of the tests generally while the balance (34%) disapproved. Of this group, the walk and turn test found unanimous acceptance, while the one-legged stand was assessed in a manner identical (66% vs. 34%) to the tests generally. Of this group the finger to nose and the Rhomberg also found unanimous acceptance.
Of greatest interest in this study is the effect that experience had upon the results. When the group assessed had 6 to 10 years experience, the unanimity drops off dramatically. In general, the tests were only approved by 43% of this practicing group while 57% disapproved. Although the walk and turn and the one leg stand found unanimous acceptance among the newcomers, in reference to this group it was actually disapproved by 57% of the respondees. Although down in its acceptance, of some surprise to us, and perhaps because of its wide spread neurological use, the finger to nose examination was accepted by 72% of this group while 28% disapproved.
When the group surveyed had more than 11 years experience, they found themselves equally divided on the issue of reliability. On the general assessment, walk and turn and one leg stand they were evenly divided. On the finger to nose test they departed and gave this examination a 70% approval rating. In terms of the Rhomberg test, they approved, but not by as much as the finger to nose (60%). Nearly all of the members polled in this group favored the administration of a second exam.
When the group of police surgeons had 20+ years of experience, they had moderate confidence in the tests as a whole. Sixty percent of those surveyed were found to have approved of the tests. Taking each test individually, they moderately disapprove of the walk and turn and the one leg stand (40% approval) and mildly approved of the finger to nose and Rhomberg examination (60%). Interestingly, 100% of those surveyed in this group favored the administration of a second test.
Aside from the subjective beliefs of the various physicians, the discussion is worth taking note of. Citing Wall (Wall IF, Karch S. Traffic medicine. In: Stark MM. (Ed.), a Physician's Guide to Clinical Forensic Medicine. New Jersey: Humana Press, 2000), the author noted that:
Early studies which suggested these tests accurately indicate impairment due to drugs, in a high percentage of cases remain to be confirmed. Indeed, controlled trials, when toxicology assays were taken, before and during these tests conducted by Drug Recognition Experts, have clearly shown when cases involving alcohol are excluded, the accuracy level has fallen to 32%- 44%. It must also be noted in these previously claimed, highly accurate tests, the suspects were all questioned in detail regarding their use of drugs, both prescribed and illicit, prior to an opinion being given. * * * The differential diagnoses will be well known to forensic practitioners and found in recognized textbooks. It may well be the case that poor performance or lack of success in these tests might be due to some undiagnosed condition.
As we are all aware, the bulk of the examinations which are given are so-called divided attention tasks. The divided nature of their administration and anticipated performance is essential to any determination made thereon. In reference to these tasks O'Keefe notes that dyslexia which normally occurs in 4% of the population with another 6% showing dyslexic tendencies:
may encompass some or all of the following: difficulty with organizational skills; making errors with numbers; making mistakes with instructions; problems with explaining ideas and concepts; difficulty with orientation; confusing left and right; confusing dates and forgetting appointments.
Further, dyspraxia, which is a not uncommon condition affecting up to 5% of the population, can be defined as motor difficulties caused by perceptual problems, especially visual motor and kinesthetic motor difficulties. Noted as some of the more common problems created by dyspraxia are Aclumsiness, poor posture, awkward gait, poor short-term memory, poor body awareness, poor sense of direction, inability to hop or skip.
Additionally, O'Keefe noted that poor performance on Field Sobriety Tests might simply be the result of extreme fatigue coupled with a degree of sleep deprivation. While as noted this has been met with considerable scepticism, the author goes on to observe that:
Recently published research has revealed in normal subjects that, after 17 to 19 h of staying awake, reaction times were up to 50% slower than they were after drinking a measured quantity of alcohol. Thirty-nine volunteers aged in their 30's and 40's were assessed in respect of reaction time, both physical and mental, coordination and attention span using a variety of manual and cognitive tasks. The researchers used alcohol as a baseline since standards have already been set in several countries for loss of performance or impairment after consuming alcohol. The tests were duplicated under controlled conditions on separate days when the subjects were deprived of sleep over a 28 h period, and also on another day over a 6 h period when the subjects were given 4 units of their favorite alcohol. The researchers found that the performance of subjects kept awake for 17 to 19 h, in some tasks, was the same or worse than that recorded after 50 mg/100 mls of alcohol. Reaction times were recorded up to 50% slower and accuracy was significantly reduced. Indeed it was noted, the longer the subjects were kept awake the worse their performance became, reaching levels of impairment normally expected from alcohol above the legal limit of 80 mg/100 mls.[i]
This discussion is telling and certainly warrants further development in the interests of justice.
[i].citing BR J Occ Environmental Medicine, September 19, 2000.
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