Also known as “Roadside Gymnastics” or “Stupid Human Tricks”, the so-called “Field Sobriety Tests” don’t really measure whether a person is under the influence of alcohol or not. In addition to some exercises which have absolutely no relation to a person’s ability to drive a car, like saying the alphabet, counting backwards, or doing a finger dexterity test, police officers will give a 9 Step Walk and Turn test and a One Leg Stand test. Law enforcement officers rely on these balance tests in making their decision about whether to arrest someone or not, but I don’t find that judges or jurors place too much weight on them once some common sense is applied. These exercses are designed for failure and designed to make people off balance. So, it is not surprising when regular people have difficulties with them. No one is required to be able to stand on one leg for 30 seconds without swaying in order to get a driver’s license. Here are some of the best ways to challenge the two physical “FST’s”, in no particular order:
1. Tests not Given or Scored According to NHTSA: The National Highway Transportation Safety Administration, commonly referred to as NHTSA, is the agency that developed the FST’s. However, NHTSA says clearly in its manual that the “tests” are only valid if given and scored strictly according as prescribed by NHTSA. Usually, they aren’t. Thus, using the NHTSA Manual an attorney can show that the tests are invalid as given by the officer.
2. Tests not Given or Scored According to Standard Operating Procedures of the Agency: Almost every individual police department has its own internal Standard Operating Procedures (SOP). Sometimes they are called General Orders or something else that sounds official. These are the rules laid down by the agency for the officers to follow. Often, these include orders and procedures for administering and scoring FST’s. Thus, it is important to obtain a copy of the SOP. If the tests aren’t given according to the SOP and the officer’s training they may be thrown out or seriously discredited.
3. Failure to Inquire About Injuries or Illnessess: Obviously, a person with a bad back, bad knees, bad ankles, inner ear disorders or even allergies may have difficulty with tests of balancing or coordination. Even NHTSA says so. Yet, often, officers won’t even ask whether a person has any such infirmities before they administer the exercises. Even if the officer asks, or the individual tells the officer that he or she has an issue that will make the tests difficult, they will give the tests anyway.
4. Surface Not Level: Whatever can be said about the efficacy of the FST’s, common sense dictates that balancing tests are worthless if given on an improper surface. NHTSA says the tests must be given on a “dry, level, non-slippery surface”. However, usually the roads are given on the side of a road. Roads are usually “crowned” which means they are higher in the middle and slope down on the shoulders. They are not often level. I have seen tests that were given on gravel, in the snow, in the middle of rainstorms, in barefeet on rocky surfaces, etc. The place where tests are given can be an issue.
5. Weather Conditions: As with the quality of the surface, the weather conditions are also a factor to be considered. The tests are almost always given outside (although the officers could give them inside back at the station). If it is windy, raining, snowing, or extremely cold the person’s performance can and will be effected. Usually, you can get a good idea of the weather conditions from looking at the video. However, this issue can also require some research and getting certified weather reports to prove what the conditions were during the exercises.
6. Age and Weight: NHTSA states that the tests may not be valid for people who are over the age of 60 or more than 50 pounds overweight. If either of these conditions apply, they should be raised.
7. Failure to Demonstrate the Tests: The officers are trained to explain the instructions for the test and to demonstrate its performance. Sometimes they do not demonstrate the test, or demonstrate it incorrectly. Almost always, when demonstrating the 9 step walk and turn, the officer will demonstrate 3 or 4 steps and not all 9. The number of steps demonstrated can be important since it effects which foot you pivot on and which way you turn.
8. Failure to Videotape FST’s: Most agencies have SOP’s or General Orders that require that vehicle stops and field sobriety exercises be videotaped. If the officer fails to video the FST’s, or the tape is lost or destroyed after an attorney has requested it, a motion to suppress the FST’s can be filed. I have done so successfully now several times. The officer’s failure to follow the internal procedures and orders of the agency may be enough to demonstrate bad faith and get anything that would have been on the tape thrown out.
9. FST’s are Designed for Failure: The FST’s can be discredited by using simple common sense. The exercises are designed for the specific purpose of making a human being off balance. We know it is easier to stand on two legs than it is to stand on one. It is easier to stand on one leg with your arms out parallel to the ground to help you balance than pinned to your side as the officer will instruct. So, it is no surprise that people sway when standing on one leg, or that they will have to put a foot down. The exercise is designed to make that happen. We know people walk with their feet shoulder width apart in an open gait as opposed to touching heel to toe on each step like the 9 step walk and turn test requires. Each element of both physical FST’s is designed to make a person unsteady and off balance. Once this is pointed out, I find people less likely to place much weight on the results of the FST’s assuming that the subject didn’t fall down or do something ridiculous during the exercise.
10. Shoes: The type of footwear or lack thereof can effect a person’s performance on the FST’s. NHTSA mandates that person’s wearing shoes with a 2 inch heel should be given the opportunity to take his or her shoes off. Sometimes officers fail to provide this opportunity. If a person does take his or her shoes off, then they are doing the tests barefooted. Almost all roadsides have rocks, glass and other debris scattered across them. Walking on these surfaces in barefeet can be difficult. Also, when barefooted, people are less likely to touch heel to toe on the Walk and Turn. If the test are taken in sandals, flip-flops, dress shoes, cowboy boots, work boots, high-heels or other footwear that might make the exercises difficult, that can explain balance issues during the exercises.