NHTSA Revises Three Test Battery Interpretation
February 13, 2008
I have always looked at field sobriety tests like movies. Despite the trend toward validation of conclusions purportedly drawn from the administration of such tests, it always seemed to me that the true validation is in the recitation of the results. In other words, did the motorist fall when asked to perform the one leg stand? Was the motorist able to walk in heel to toe fashion and, if not, how did the motorist actually perform? The true beauty of these tests, as I see it, is a means of reporting to the trier of fact, for its determination, the degree of sobriety based upon the performance of these tasks. Indeed, it is this factor that makes the Horizontal Gaze Nystagmus test different. The average man on the street has no idea that alcohol or drugs has any effect at all upon the synapses of the nerves that control the muscles of the eye, let alone how that effect is manifested and what it means.
Of course, the National Highway Traffic and Safety Administration (hereinafter NHTSA) doesn't see things this way. Commencing with its 1981 study (Burns, M., and Moskowitz H., Psychophysical Tests for DWI Arrest, National Highway Traffic Safety Administration Contract No. DOT-HS-5-01242), which validated the standardized three test battery (HGN, Walk and Turn and One Leg Stand), NHTSA has consistently assigned pass/fail percentages to each of the tests and the tests as a whole. As we noted in 2 NY DWI Bulletin 17, this study came to the conclusion that proper use of the three test battery, when properly used, demonstrated an ability to identify those with a excess of .10% of alcohol in the bloodstream with remarkable exactness (84%). Even so, the report also notes a dramatic increase in the potential for error as the BAC approached .10%. In that study, not only did the researchers incorrectly identify 47% of the participants with a BAC of .10% or less as having a BAC of .10% or greater, they also failed to identify 16% of those who were legally intoxicated (.10%). In what may have been an effort to minimize the incidence of error noted by Burns and Moskowitz, in 1983, Anderson, Schweitz, and Snyder, on behalf of NHTSA, returned to the standardized battery. This time, in a report entitled Field Evaluation of a Behavioral Test Battery For DWI (National Highway Traffic Safety Administration, Washington, DC. Office of Driver and Pedestrian Research, [Publication DOT‑HS‑806‑475]), the researchers concluded that the battery is effective in determining whether the motorist's BAC is above or below .10%.
The onset of .08, and significantly declining BACs have drastically changed the landscape. When Feldman and Gutmann (J. Feldman & S. Gutmann, A Study of DUI Law Enforcement Practice Based on EBT Data from 5 Precincts in Massachusetts and California, 29 Jurimetrics J. 221-238 (1989)), looked at the issue of operator falsification on the BreathalyzerJ 900A in 1989, average BACs, from three widely varied precincts, were found to be a uniform .17. More recently however, Perrine, et. al., in a study entitled Roadside BAC, Alcohol Abuse and Driver Record, (Vermont Alcohol Research Center), observed that on 362 late night drivers, the mean BAC in this .08 state was .07 with a standard deviation of .05. While the Perrine study did not necessarily involve an arrest for an alcohol related operating offense, compilation of DWI arrests by the University of Maryland Police Department disclosed that in 1996 the average arrestee had a BAC of .119, although by 1997 that number had crept back up to .128. Facially, each of these trends has created a situation where the validity of conclusions based upon performance of the three test battery could easily be called into question.
NHTSA has now addressed this situation. In a report entitled Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, Jack Stuster and Marceline Burns made modifications in the 1981 test protocol, particularly in the area of Horizontal Gaze Nystagmus. The modification consisted of the following. The presence of four HGN clues was changed to indicate a BAC of > 0.08 percent as opposed to the present system where four clues indicate a BAC > 0.10 percent. The presence of two clues was changed to represent a BAC > 0.04 percent.
Employing these modifications in a study conducted in the City of San Diego, the officers submitted data from 297 collection forms. As set out in the report:
The results of decision analysis provide clear indication of SFST accuracy. Decision analyses found that officers' estimates of whether a motorist's BAC was above or below 0.08 or 0.04 percent were extremely accurate. Estimates at the 0.08 level were accurate in 91 percent of the cases, or as high as 94 percent if explanations for some of the false positives are accepted. Officers' estimates of whether a motorist's BAC was above 0.04 but under 0.08 were accurate in 94 percent of the decisions to arrest and in 80 percent of the relevant cases overall.
The implications of this report are interesting for New York. Since the presence of four HGN clues was changed to indicate a BAC of > 0.08 percent as opposed to the present system where four clues indicate a BAC > 0.10 percent, officers utilizing HGN should be questioned as to whether they are aware of this change. Irrespective of the answer received, one can then make a convincing argument that four clues are not indicative of a BAC in excess of 0.10. Additionally, should your officer admit that he or she has been certified by NHTSA but has not utilized the HGN component, you should generally be able to get him/her to admit that the field sobriety testing protocol has been violated.
And while we are on the subject of Field Sobriety Testing . . .
Gomez Returns . . .
Within a few short weeks, The New York DWI Bulletin will be entering its seventh year of publication. Throughout this period, I have to admit that I have never had case which brought about such intense reader reaction as the unreported decision on the Wappingers Falls Village Court decision of People v. Gomez. In this matter and in the subsequent affirmance of that decision by the Appellate Term for the 9th and 10th Judicial Districts, subscriber, Louis Viggiotti, did what for most of us is un-do-able. He persuaded two tribunals to utilize common sense and to admit that the conclusions of the arresting officer based upon his/her administration of field sobriety tests are genuinely worthless. Since we first discussed this decision in 3 NY DWI Bulletin 12, it has by far been the most requested decision on our shelf. The mere mention of Gomez will generally spark calls from twenty-five or more subscribers seeking copies of the original decision.
Well, call it a holiday present or anything that you will, here it is. What follows is the original decision of both the lower court and the Appellate Term in the unreported but celebrated decision of People v. Gomez.
STATE OF NEW YORK COUNTY OF DUTCHESS
JUSTICE COURT VILLAGE OF WAPPINGERS FALLS
PEOPLE OF THE STATE OF NEW YORK
ROBERT J. GOMEZ
Charges: 1192-2 V&T Law
1192-3 V&T Law
1229C3A V&T Law
3752A4 V&T Law
Reference: 1. Hearing Dated 10/20/94
2. L. Viglotti, Esq. memo of law 11/3/94
3. ADA D.L. Woodard memo of law 11/30/94
4. L. Viglotti, Esq. memo of law 12/7/94
The officer did not have probable cause to believe the defendant was intoxicated and therefore did not have probable cause to arrest for DWI. The failure to have probable cause stems solely from the absence of a fair and systematic program for the administration of field sobriety tests. What is necessary is sufficient information to lead a reasonable person to conclude that it is more probable than not that this particular defendant committed the offence with which he was charged. A Court cannot reach an affirmative decision on that question if it has insufficient faith in the tests relied upon to arrive at the opinion. As the arrest was made without probable cause, the fruits thereof, namely the chemical breath test results are suppressed.
On February 19, 1994, while on routine patrol, a Deputy Sheriff observed the defendant drive his vehicle in violation of various provisions of the Vehicle and Traffic Law. After stopping the defendant's vehicle, the officer, suspecting the defendant had consumed alcoholic beverages, directed the defendant to perform what are commonly known as field sobriety tests.
The defendant was asked to recite the alphabet beginning with the letter e and stopping at t. Additionally, the defendant was directed to touch the tip of his nose several times, each time being directed to use a particular hand. Furthermore, a one leg stand test was administered, with specific instructions as to placement of hands and legs. A walk and turn, or heal to toe, test was administered, similarly, with specific instructions regarding movements of the body.
The deputy's testimony was that in his opinion, the defendant was intoxicated because of the defendant's failure of all these tests. The opinion having been formed, an arrest was made and chemical breath test results subsequently obtained.
While there are other issues raised by the People and the defense throughout the omnibus motion, the answer thereto, and memoranda of law, this decision addressed only the fairness, propriety and admissibility of the field sobriety test and the actions of the State in reliance of those test results.
This Court has heard thousands of DWI cases. In many of those cases, pre-trial hearings and bench or jury trials have been conducted. Consequently, for more than a decade, the writer has heard testimony regarding the administration of field sobriety tests from police officers, defendants and witnesses on hundreds of occasions.
To quote an authority on the field of DWI litigation in New York State, the number of exercises that can be categorized as field sobriety tests are limited only by imagination, Fiandach, New York Driving While Intoxicated, Lawyers Cooperative Publishing, 1992, page 238. The People, in their memorandum of law dated November 30, 1994, in section B, admit that there are no standards in New York State to guide an officer in determining whether or not a defendant has passed a field sobriety test. Furthermore, in what appears to be a bold pronouncement, the People claim that it would be impossible for the State to develop the specific standards for when someone passes or fails a test. The People go on to say that an officer's opinion is based on his or her training and experience in prior DWI investigations.
What is passing? Should swaying during a one leg stand constitute failing? Why is singing the alphabet instead of speaking it failing? Why does moving the arms in an attempt to balance oneself sometimes constitute failing and other times not? Does a suspect have to perform each test perfectly, ie., according to this particular officer's standards? Does a suspect get a second chance to perform a test? Is a suspect who passes the test the first time required to try it again to see if he or she can perform it satisfactorily twice? What weight should be given to the fact that the defendant is nervous and afraid? Or cold and blinded by the patrol vehicle's flashing and take down lights? Or distracted by blaring police radio transmissions or the presence of other officers or passengers in the defendant's vehicle?
The arbitrary and capricious nature in which the field sobriety tests are selected, administered and judged is fundamentally unfair in violation of both the New York State and United States Constitutions.
The Court urges the People to develop a standard for these field sobriety test results.
S/Raymond C. Chase, Jr.
* * *
At a term of the Appellate Term of the Supreme Court of the State of New York for the 9th and 10th Judicial Districts held in ORANGE County on May 7, 1996
Present-Hon. ANDREW J. DI PAOLA PRESIDING JUSTICE
PATRICIA D. COLLINS ASSOCIATE JUSTICE
ANGELO J. INGRASSIA ASSOCIATE JUSTICE
PEOPLE OF THE STATE OF NEW YORK
ROBERT J. GOMEZ
The above named appellant having appealled to this court from an order of the Justice Court, Village of Wappingers Falls, County of Dutchess (Chase, J.) Entered on June 1, 1995 which suppressed the chemical breath test results;
and the appeal having been submitted by KRISTEN A. RAPPLEYEA, ESQ. for the appellant and by LOUIS J. VIGLOTTI, ESQ. for the respondent and due deliberation having been had thereon;
It is hereby ordered and adjudged that the order is unanimously affirmed.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th AND 10th JUDICIAL DISTRICTS
PRESENT: DiPAOLA, P.J., COLLINS and INGRASSIA, JJ.
PEOPLE OF THE STATE OF NEW YORK
ROBERT J. GOMEZ
Appeal by the People from an order of the Justice Court, Village of Wappingers Falls, County of Dutchess (Chase, J.) entered on June 1, 1995, which suppressed the chemical breath test results.
Order unanimously affirmed.
Appeal from the suppression of the chemical breath test results was properly taken pursuant to CPL '450.20 and the People were not required to file a statement pursuant to CPL '450.50 because the charges against the defendant had been dismissed. The record supports the determination that the Deputy's evaluation of the field sobriety tests was arbitrary and capricious and, therefore, the test results did not provide sufficient probable cause to arrest defendant. Moreover, the determination by the trier of fact should be accorded great weight on appeal and should not be disturbed unless it is clearly unsupported by the record (People v Garafalo, 44 AD2d 86).
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