Standardized Field Sobriety Tests ("SFST's")

The one thing to remember is the police are never going to ask you out of your vehicle to admire your shoes, or comment on your wardrobe. If the officer has already asked you how much you've had to drink tonight, and then asks you to get out of the car, chances are pretty good that he wants to "see if you're okay to drive". Officers are people too, so they think that "DRINK, DRIVE, GO TO JAIL" is the law. For many officers, the arrest decision has been made at this point. Since the decision to arrest has already been made, the SFST's to these officers are nothing more than an effort to obtain evidence to use against you. The Standardized Field Sobriety Tests are typically the third phase in an OUI investigation. These tests attempt to evaluate the use of normal mental and physical faculties using abnormal mental and physical tests.  In short, these exercises are designed for you to fail. Many people can not successfully complete these exercises when completely sober. These tests are founded on the theory that bad coordination equals alcohol or drug consumption, and nothing else.

National Highway Traffic Safety Administration (NHTSA) conducted a series of studies to determine intoxication in drivers. As a result of these studies, a three test battery resulted. The SFST battery consists of the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT) and the One Leg Stand (OLS). The SFST's are used to determine if a person has an alcohol concentration of .10 or more. The first fallacy of the tests is that the tests as conducted by the studies are looking for .10 - not .08 (the legal limit in Wisconsin). Moreover, these "studies" were conducted in controlled environments where there is no traffic whizzing by, ideal weather conditions, and the tests were administered with flat smooth surfaces and officers who were certified as SFST instructors - not the average officer. These studies are touted by the State as being accurate and reliable - We can show otherwise. If any element of the SFST's is changed in the administration of the SFST - the results of the test are compromised. At Murphy, Volbrecht & Kuehn, we will investigate to ensure that the test was administered according to NHTSA standards.

The three test battery are as follows:

The Horizontal Gaze Nystagmus ("HGN") is supposed to be the most accurate of the three test battery. The HGN test requires the officer make a medical diagnosis that a person displays HGN. Nystagmus is the involuntary jerking of the eye. A person's eye is supposed to track an object smoothly, similar to a marble on a glass table-top. Nystagmus is where the eye cannot track smoothly - that is, the eye jerks rather than moves smoothly when tracking an object. There is absolutely nothing a person can do to control Nystagmus.

NHTSA seemed to ignore that there are many different types of Nystagmus and at least 38 different causes of Nystagmus! Alcohol is but one of the causes of HGN. Many people have Nystagmus naturally, with or without alcohol. One of the theories behind HGN is that when a person drinks, the alcohol affects the central nervous system which controls Nystagmus, rendering a person's body incapable of controlling Nystagmus.

The officer is looking for six things when conducting the HGN test :

  • Lack of Smooth Pursuit in the right and left eye
  • Nystagmus at Maximum Deviation in the right and left eye
  • Onset of Nystagmus prior to 45° in the right and left eye

To determine if a person has Nystagmus, the officer will have the test subject stand with their feet together, arms at their side, and instruct them to keep their eyes on a stimulus, normally a pen or flashlight. The officer will instruct the test subject to keep their head still and follow the stimulus with their eyes and their eyes only. The officer will then begin the test.

Most officers do not administer this test correctly! There are many steps to this part of the SFST. The officer must begin on the test on the correct eye, and must time the passes of the stimulus correctly.

The Walk and Turn ("WAT") test is quite comical in our opinion. It only takes two "clues" for the officer to make an arrest decision. This test has over 100 opportunities for the officer to see a "clue". Giving NHTSA the benefit of the doubt, let's say this test has only 100 opportunities to display a "clue". Does it seem fair that you can score a 98% on this test and still fail it?

The simple truth is it is not fair.

Even according to NHTSA, the study is only 68% accurate! That is, the test itself receives a grade of "D" when determining if a person has an alcohol concentration of .10 or more (Again, the legal limit in Wisconsin is only .08). Would you be satisfied if your doctor only graduated medical school with a "D" average?  We do not believe you would.

This test asks a person to walk eighteen heel to toe steps with their arms at their sides, counting each step out loud. Now, if the test is designed to judge normal use of mental and physical faculties, why would they use this test??? For example, think about the last time you walked to the bathroom, was it heel to toe? Were your arms at your sides? Were you counting out loud? Were you looking down at your feet? Were you worried about traffic whizzing by you? Were you worried about being arrested?

I would think not.

Essentially, there are three phases to this test. The instruction phase, demonstration phase, and the physical phase. During the instruction phase, the officer is going to ask the test subject to put his right foot in front of his left foot, arms down at the sides, not to begin until told to do so, and to maintain that position until told to begin. What most people don't realize is that the grading has already begun. If you get out of position, it's a mark against you. If you raise your arms more than six inches, it's a mark against you - you've already given two clues, failed the test, and are on your way to jail, and the physical phase hasn't even begun yet. During the demonstration phase, the officer will demonstrate the test, normally using three steps then the turn, and three steps back.

During this portion of the test, the subject is expected to listen, watch, and comprehend the instructions, while standing in an unnatural position. Often, the officer botches these instructions and demonstration, leaving the person to perform the test with faulty instructions. It doesn't matter to the officer that night if he got it right, he's getting the arrest regardless if he does the test right.

There are 8 clues to the physical portion of the Walk and Turn, they are:

•1. Starts Too Soon

•2. Loses Balance During Instructions

•3. Stops While Walking

•4. Doesn't Touch Heel To Toe

•5. Steps Off Line

•6. Uses Arms For Balance

•7. Improper Turn Or Loses Balance During Turn

•8. Incorrect Number Of Steps

Keep in mind, the officer only needs two of the above clues to arrest you. This is an exercise designed to obtain evidence to use against you.

The One Leg Stand is the final test in the SFST battery and one of the most difficult. This test asks a person to stand on one leg, with the other leg six inches off the ground, keeping arms down at the sides, and counting out loud for thirty seconds.

Again, according to the NHTSA, this study is only 65% accurate! That is, the test also receives a grade of "D" when determining if a person has an alcohol concentration of .10 or more ( eventhough Wisconsin is a .08 state). Do you think the government would be satisfied if you only paid 65% of your taxes?

I assure you, they would not.

This test is purported to be a measurement of normal motor skills. If that is the case you need to ask yourself when was the last time you stood in line at the grocery store, standing on one leg, with the other six inches off the ground, counting out loud? I am sure you have not.   How in the world does this test a person's ability to drive or the normal use of mental and physical faculties? It does not. There's only one place where this test is "normal," and that is in police custody.

As with the Walk and Turn, this test has three phases, the Instruction phase, Demonstration Phase, and the Balance/Counting Phase. There are four things the officer is looking for:

•1. Sways While Balancing

•2. Uses Arms for Balance

•3. Hops

•4. Puts Foot Down

Much like the WAT, the officer only needs to see two clues to make an arrest decision. This is an exercise designed to obtain evidence to USE AGAINST YOU.

At Murphy, Volbrecht & Kuehn, we handle many Drunk Driving cases, and are experienced at litigating errors in SFST's. We have experience in litigating these issues, and a proven track record of effective representation in these areas.

Contact a Lake Geneva Lawyer About problems with SFSTs That Affect You

Please contact our Elkhorn law firm with questions about the legal matters that affect you. We are available by calling 262-723-4110 or by completing our online contact form. Our Elkhorn criminal and family law attorneys are available five days a week, as well as evenings and weekends by appointment. Home and hospital visits are available.