The Use of Field Sobriety Tests at a DMV Administrative Per Se Hearing?

Whenever a driver is arrested for DUI in the State of California, they face two entirely separate battles. The accused driver must face criminal prosecution before the local Superior Court and they also must fight an administrative battle with the California Department of Motor Vehicles (DMV). At an Administrative Per Se Hearing, commonly referred to as an APS Hearing, the DMV will introduce evidence to establish three issues:

• Was the driver lawfully stopped or contacted?
• Was the driver lawfully arrested?
• Was the driver operating a motor vehicle with a blood/alcohol concentration above the legal limit.

In this article, we focus on Issue No. 2. Was the driver lawfully arrested?

How does the DMV use Field Sobriety Tests?

One of the critical issues that must be established at a DMV hearing is whether or not the accused driver was lawfully arrested. In making that decision, the hearing officer must consider if sufficient evidence exists to establish that the drive was “intoxicated” which would therefore justify an arrest for DUI. In considering the question of “intoxication” the hearing office will consider a variety of factors:

• Erratic or unusual driving.
• Statements or admissions made by the driver regarding the use of alcohol.
• Objective symptoms as noted by the arresting officer (i.e. Odor of Alcohol, Slurred Speech, Bloodshot/Watery Eyes, or Unsteady Gait).
• Performance of Field Sobriety Tests.
• Performance of a Preliminary Alcohol Screening Test.

Among all of these variable factors, the hearing officer will give great weight to the performance of Field Sobriety Tests to answer the question of intoxication. In considering the performance of the Field Sobriety Tests, the hearing officer will blindly presume that the arresting officer knew what he was doing and that he administered the Field Sobriety Tests correctly. The hearing officer will also presume the arresting officer correctly and accurately documented the driver’s performance of the tests. If the arresting officer determines the driver failed the Field Sobriety Tests, the DMV will presume that to be true…………. No questions asked!

What Type of Field Sobriety Tests Does the DMV Consider?

In today’s world of DUI investigations, law enforcement officers have an entire repertoire of tests they may use when evaluating a driver to determine intoxication. For decades, Field Sobriety Tests were taught to police cadets at training academies and were then re-enforced or expanded upon by field training officers. As a result, there was a wide variety of field sobriety tests that had no continuity in how they were instructed or evaluated. A driver evaluated by one officer may “pass” the tests while the same driver evaluated by another officer may “fail.” In many instances, this is still occurring today.

In 1975, the National Highway Traffic Safety Administration (NHTSA) commissioned a study to determine which roadside field sobriety tests could be relied upon to most accurately determine intoxication. As part of that research, NHTSA determined that three tests were the most reliable;

• Horizontal Gaze Nystagmus (HGN)
• Walk and Turn
• One Leg Stand

Once it was determined that these were the most reliable tests, NHTSA then commissioned validation studies to determine their accuracy. Between 1995 and 1998, three validation studies were conducted in the states of Colorado, Florida and California. When all of the data was compiled, NHTSA concluded that a properly trained officer who correctly administers and correctly scores the three validated tests should be able to accurately determine intoxication more than 90% of the time. NHTSA has signed on behind these three validated tests and now calls them “Standardized Field Sobriety Tests.” These are the only tests that are certified by NHTSA. Despite this, the use of “non-standardized” Field Sobriety Tests persists in law enforcement today. Many agencies, particularly the California Highway Patrol, will use any number of tests they believe accurately evaluate intoxication, even if the federal government disagrees.

What are the Standardized Field Sobriety Tests?

Horizontal Gaze Nystagmus (HGN)
This is a test where the officer will pass a light, pen or finger in front of the driver’s face from left to right on a horizontal plane. As the driver tracks the moving stylus with his eyes, the officer is looking for the tell-tale sign of impairment. A horizontal bouncing or twitching of the eyes is “Nystagmus.” Classically, a person who has been drinking alcohol will display a varying degree of bouncing in the eyes. This is an involuntary reaction that the driver does not feel. One’s eyes could be bouncing like ping pong balls and they would not feel a thing. The theory is the more pronounced the nystagmus is, or the sooner the eye begins to bounce, the more intoxicated the driver may be. This is one way to determine if a person has been drinking, however, there are a multitude of other factors which can create this condition. Previous head injuries, the wearing of contact lenses, high doses of caffeine and certain medications can cause the eyes to react in this fashion; and a certain percentage of the population have naturally occurring nystagmus.

One Leg Stand
The officer will instruct the driver to stand with his/her feet firmly on the ground with heels and toes touching. When instructed to begin, the driver is to raise one foot approximately 6 inches off the round and point their toe. With their hands held closely at their sides, the driver is to look at the elevated foot and then count from 1 to 30. The officer will tell the driver that if they drop their foot, they should simply recover and continue counting.

The officer does not tell the driver that if they drop their foot one time, it is considered a failure. They do not tell the driver that using their arms for balance, hopping to maintain balance or failing to count are also considered failures of the test.

Walk and Turn
Classically referred to as the “heel to toe,” this test begins with the officer placing the driver in the “position of instruction.” The officer tells the driver to place one foot directly in front of the other with the heel touching the toe. The driver is instructed to remain in this position while the officer completes the remainder of the instructions. The officer will tell the driver, “when I tell you to begin,” to take nine steps in a straight line, touching the heel to the toe on each step. The driver is told to keep his arms at his side and to count each step as he walks. The driver is then told to turn around 180 degrees (in a specified manner) and take an additional nine steps in the opposite direction.

The officer does not tell the driver that if he/she begins the test before being instructed to do so, it is a failure. Not touching the heel to the toe on each step is a failure. Stepping out of line is a failure. Raising the arms for balance is a failure. Failing to count the steps out loud is a failure and, failing to perform the pivot as instructed is reason for failure. Taking too few or too many steps is a failure.

What are the “Non-Standardized” Field Sobriety Tests?

Modified Position of Attention (MPOA)
Sometimes referred to as the “Romberg” this test begins with the officer placing the driver into the position of instruction. The driver is directed to stand with his feet firmly on the ground with heels and toes touching. The driver is instructed, “When I tell you to begin” to tilt his head back, close his eyes and then to silently estimate the passage of 30 seconds in his/her head. The driver is told to keep his/her arms to their side and, when they believe 30 seconds has elapsed, to tilt their head forward, open their eyes and say “now.”

The officer does not tell the driver that incorrectly estimating the passage of time is a failure.
Beginning the test before being instructed is also a failure. Opening the eyes or raising one’s arms for balance is a failure. And the officer will move around the driver to monitor whether or not the driver is “swaying” while tilting his head.

Finger to Nose
This test begins with the driver being placed into the position of instruction. The driver is instructed to stand with his/her feet firmly on the ground with the heels and toes touching. The officer instructs the driver to keep his/her arms at their side with the index finger on each hand pointed toward the ground. The driver is told, “When I tell you to begin,” to tilt their head back and close their eyes. The driver is told that he/she will be instructed to use their right or left hands, as instructed, to reach up and touch the very tip of their extended index finger to the very tip of the nose. The driver is told that as soon as they touch the instructed finger to the nose that they should immediately drop their hand back down to their side and await the next instruction.

The officer does not tell the driver that beginning the test before being instructed is a failure. That touching any portion of the extended finger, other than the very tip, to any portion of the face, other than the tip of the nose, is a failure. Raising the wrong hand when instructed is a failure. Not dropping the hand automatically after touching the nose is a failure. Swaying while standing with the head tilted back is a failure.

Finger Count
This test begins with the driver being instructed to raise either hand and touch the tip of the thumb to the tip of the pinky finger. The driver is told, “When I tell you to begin,” to alternatively touch the tip of the thumb to the tip of each finger, while counting, “one, two, three, four;” and to then automatically reverse the order while counting, “four, three, two one.” This completes one cycle. The officer will normally tell the driver to complete three cycles while counting out loud.

The officer does not tell the driver that failing to touch the tip of each finger in sequence is a failure. The officer does not tell the driver that breaking the sequence or not counting correctly is a failure. Not completing exactly three cycles is a failure.

Hand Pat
This test begins with the officer telling the driver to place the palms of both hands together in a clapping posture. The driver is told, “When I tell you to begin,” rotate the top hand 180 degrees and clap with the other hand. The effect is that the driver claps his right hand into the palm of his left hand. The right hand is then completely rotated and brought down to clap the left hand with the back of the right hand. As the driver is performing, the officer will begin barking for the driver to perform “faster, faster, faster.”

The officer does not tell the driver that “rolling” the hand rather than completely “rotating” the hand is a failure. Striking the left hand with the knife edge of the right hand is a failure. Not rotating the hand at all is a failure and failing to increase the pace is a failure.

Recite the Alphabet
The driver is told to recite the alphabet meticulously and to not do it in a “singing” manner. We have actually witnessed police officers instructing drivers to perform the alphabet in reverse order, which is utterly preposterous.

We have witnessed police officers hand the driver a 3×5 card and instruct the driver to print the alphabet on the card and then to sign their name below the letters. This may not seem very challenging unless the officer does not provide the driver with an adequate surface upon which to place the tiny 3×5 card. We have also seen instances where the officer will place the 3×5 card on the scalding hot hood of a patrol car and expect the driver to write while burning their hands.

Counting Backwards
In this test, the officer will pick two random numbers and instruct the driver to count backwards from one number to the other. In example, the officer may tell the driver to count backwards from 97 to 73.

The performance of each of these tests is evaluated by the administering officer. This is a truly “in the eye of the beholder” situation and because the evaluation of these tests are not standardized, the officer can assess them in any way he see fit.