Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Interviewer: Let’s talk about the field sobriety tests that happened on the side of the road. You know, the walk and turn, one-leg stand, the horizontal gaze and all that stuff. Are there any physical problems a person could have that would compromise his or her ability to do the tests? So, even if they failed miserably, it’s excusable because they’re either 100 pounds overweight or they have a bum leg or things like that?
Kevin Leckerman: Well, all those factors you just mentioned will definitely affect a person’s ability to do a balance test, like the one leg stand or walk and turn test. Most police officers who had formal training went through a training course that involves a protocol for standardized field sobriety testing developed by the National Traffic Highway Safety Administration. The National Highway Traffic Administration is also known as the NHTSA. They have done extensive studies over a number of decades concerning many different field sobriety tests in order to determine which are supposedly the most valid. Personally and professionally, I do not feel that any of these field sobriety tests create a valid measurement of someone’s sobriety. I went through the training courses. I received my certification from NHTSA to administer these tests. I know these tests inside and out. I know the studies. I know the manuals; and I still believe that the tests don’t show much of anything.
I also recently went through a refresher course, where I had an opportunity once again to administer these tests to individuals who were dosed with alcohol and breath-tested before I gave the field sobriety tests. The majority of individuals who I administered the test to actually passed. But when it came to the breath testing, they were over the legal limit. I know I administered the field sobriety tests perfectly, because I followed every single step that’s required for the administration of these tests. I had a group of individuals who were with me, who were watching me, and commenting as well after the tests were administered about whether the person failed or passed. They were in agreement with me concerning who passed and failed.The one person who I thought failed the tests, according to the standards, was actually below the legal limit. The reason why she was below the legal limit was that she had a physical issue.
So, getting back to your initial question, the studies that were produced by NHTSA show people who are more than 50 pounds overweight have problems doing these two balance tests, the one leg stand and the walk and turn test. People who are wearing heeled shoes that are more than two inches high, according to their studies, are going to have problems with the balance tests. That makes pure sense that somebody’s not going to be able to balance well if grossly overweight or if wearing high heels.
There are other conditions such as, back problems, knee problems, leg problems that could be chronic for somebody; which will certain affect your ability to do balance tests. The police officers consider these tests to be rudimentary tests, that should be simple for anyone to pass who is sober. That’s clearly not the case for many people. Even if you’re in perfect health, you may just have poor balance and that’s going to affect your ability to do these tests. When you compound that natural inability to do a balance test well with the fact that you are on the road side, under an extremely difficult conditions, most likely with cars whizzing by, it’s going to be difficult for most people to perform a test that’s probably taught to them or administered to them for the first time in their lives.
The studies that were done by NHTSA also show that if somebody has a back problem, a leg problem or knee problem, those conditions affect the ability to do these balance tests. Weather can be a factor. If it’s very windy out, that’s going to affect your ability to do the balance tests. If there’s rain, that’s going to affect your ability to do these tests. The roadside traffic conditions are going to affect your ability to do these steps. If you can’t hear the instructions properly, because there are loud, 18-wheel trucks driving by, you’re not going to be able to pass the test according to the standards set by the officer. Also, when you’ve got an 18-wheeler driving by on a highway at 65 miles per hour or more, you’re going to get a gust of wind that could affect your ability to do a balance test. It’s pretty logical thinking to understand why a person is not going to perform these tests that well.
That brings me back to why the people whom I administered these tests to did fairly well. They passed these tests because they were inside. They were on a flat level surface. They were not under the suspicion of a DUI. There was no potential of arrest for these folks. They were relaxed and so they could perform balance tests fairly well. When you alter the circumstances, that’s what affects your ability to do it, not necessarily alcohol.
Interviewer: Do police officers ever do unorthodox ones that are not the standard field sobriety tests, and are they more defensible or does it matter?
Kevin Leckerman: There are plenty of officers who don’t do the standardized set of field sobriety tests. In Pennsylvania, most of the police officers I come across do not administer standardized field sobriety tests. They administer a variety of non-standardized tests. They may have never actually been in some type of training program. Usually the way that they learn their field sobriety testing is through a whisper-down-the-lane approach. This approach is done by watching fellow officers who’ve done more DUI investigations. When the “experienced” officer is conducting a DUI investigation, the new guy watches and listens to the other officer doing the test, and then the new guy tries to reproduce those tests on his own. The new officer may not even be following the same set of instructions the original officer was using. He may not be using the same scoring system that that original officer was using. Frankly, he may not even be giving the same instructions each time to separate individuals whom he’s investigating for a DUI. He may not be grading these drivers in the exact same way each time. You can understand that these tests then become meaningless.
Unfortunately, there is no standardization in Pennsylvania for the field sobriety tests that are given. You can get an officer who gives finger to nose tests, alphabet tests, counting backwards, and finger-dexterity tests. None of these tests are standardized tests. The studies show that there’s really no scientific reliability to these tests. When I talk about scientific reliability, of course, that’s premised on the fact that the standardized field sobriety tests do have some degree of scientific reliability. Nonetheless, an officer is basically free to administer any test he wants, in any way he wants, in Pennsylvania. The question to then be asked is “What do these tests actually show?” Anyone can make a up a field sobriety test and administer it to somebody and then grade it in his own way to come to some type of conclusion about sobriety. It doesn’t mean that the test is worth much.