Wisconsin DUI: Challenging the Field Sobriety Tests
If you recently have been arrested and charged with DUI in Wisconsin, this information may come too late. But even if you submitted to the field sobriety tests and you supposedly (according to the officer’s subjective opinion) did not perform well, there are many critical things an experienced DUI defense lawyer can do for you.
The field sobriety tests were designed by the National Highway Traffic Safety Administration (NHTSA) to help police officers determine whether someone is under the influence of an intoxicant. The field sobriety tests do not, however, reliably predict a person’s blood alcohol concentration level (BAC).
In 1975, NHTSA conducted a study to determine which field sobriety test were the most accurate. NHTSA claimed the Horizontal Gaze Nystagmus (HGN) test was 77% accurate. In other words, out of every 100 arrests made based on the HGN, “only” 23 innocent people would be arrested. The Walk and Turn Test (WAT) was assigned a 68% accuracy rate, equating to 32 out of 100 innocent people being arrested. Finally, the One Leg Stand (OLS) was accorded 65% accuracy, or 35 out of 100 false arrests. Thus, the Walk and Turn and the One Leg Stand are little better than coin flips. And, these accuracy rates assume the tests are administered properly.
Regardless, the three-test battery (HGN, WAT, and OLS) has been used by law enforcement and prosecutors as supposed indicators of driver impairment for decades. Prosecutors to try to convince a judge or jury the driver who did not perform well on the field sobriety tests cannot drive safely because s/he consumed too much alcohol. The truth of the matter is that there is no direct, empirical scientific evidence that any of the field sobriety tests in fact can predict driving impairment. Indeed, Dr. Marcelline Burns, the senior author of the 1977 and 1981 NHTSA studies concerning the standardized field sobriety tests; the Horizontal Gaze Nystagmus (HGN) test; the Walk and Turn (WAT) test and the One-Leg Stand (OLS) test, has stated that the field sobriety tests were not designed to predict driving impairment.
At Missimer Law, S.C., we know how to effectively challenge the police officer’s testimony concerning the field sobriety tests and establish the unreliability of these highly subjective tests. The results of the HGN, WAT, and OLS can be affected by many environmental and human factors, including, but not limited to, the red and blue lights on a police car, the slope of the ground, snow, ice, rain, darkness, errors in administration, and errors in scoring.
- The Horizontal Gaze Nystagmus (HGN) Test — The HGN test is the most reliable field sobriety test, as well as the most incorrectly administered field sobriety test. This is the test in which an officer orders you to follow a stimulus, usually a pen or his finger, with your eyes and your eyes only. What the officer is looking for during this test is called nystagmus. Nystagmus is an involuntary bouncing or jerking of your eyes. Nystagmus may be caused be intoxication. It may also be caused by dozens, if not hundreds, of other triggers, such as, the red and blue lights on a police car, caffeine, ADD, alcoholism, failing to move the stimulus smoothly or levelly, etc. Nystagmus should be exhibited in both eyes at the same time. If only one eyes shows nystagmus, this could be a sign of a medical condition unrelated to impairment.
- The Walk and Turn (WAT) Test — The WAT test is a divided attention field sobriety test. For the WAT, you must walk nine heel to toe steps forward, turn using short and choppy steps, then walk nine heel to toe steps back. Before beginning this test, the officer should ascertain whether you have any medical conditions that would prohibit you from performing the test. Also, the officer should give you the option of removing your shoes if they have more than a 2” heel. The officers look for eight different clues of impairment during this test: (1) starting the test too soon; (2) failing to keep your right foot in front of our left foot so that the heel of your right foot touched the big toe of your left foot during the instructions; (3) failing to walk in a straight line; (4) failing to walk heel to toe; (5) using your arms for balance during the test; (6) making an improper turn; (7) taking an incorrect number of steps; and (8) stopping during the test. Two out of the eight clues is considered a failure. Looking at the first and second clues, you could fail this test before it even begins! Sometimes, officers do not score this test correctly, as they count steps that are not heel to toe, but have less than a ½” gap. A failure to touch heel to toe should only be scored with gaps of ½” or more. Other times, officers will demonstrate the test incorrectly and count it against you when you do the test as demonstrated. Furthermore, there is usually no straight line for you to use as a reference point, and you are forced to use an imaginary line.
- The One-Leg Stand (OLS) Test — The OLS test is another divided attention test. Again, before beginning this test, the officer should ascertain whether you have any medical conditions that would prohibit you from performing the test. Also, the officer should give you the option of removing your shoes if they have more than a 2” heel. During the OLS, you raise the leg of your choice 6” off the ground. Point your toe and look at it while you count aloud. If you put your foot down during the test, you are supposed to pick it back up and continue counting where you left off. The officer is supposed to time this test and terminate it at 30 seconds, regardless of how high you have counted. The officer looks for four clues of impairment during this test: (1) putting your foot down; (2) using your arms for balance; (3) swaying; and (4) hopping. Exhibiting two out of these four clues is considered to be a failure. Many times, officers try to make it sound like improper counting is a clue: It is not. Also, officers may forget to time the test properly. In some cases, clients have stood on one leg for as long as one minute.