Ways to Challenge Field Sobriety Testing

Individuals charged with DWI are often shocked when they learn what the police report says about how poorly the field tests were performed. Those accused of driving while intoxicated often believe that they did well on roadside testing only to find out that the arresting officer is now portraying them much differently in a report or, in extreme cases, more along the lines of a fall down. And while video evidence can corroborate a lot, it rarely captures the field testing as it is supposed to be based on how most officers position their patrol car (i.e. administer tests in front of accused’s vehicle thereby blocking camera). So how can someone challenge the results as alleged by the police report other than than putting the word of the suspect against that of the arresting officer? The way to do this is through the officer’s own report and testimony regarding the field tests!!!! Yes, you heard us right — the arresting officer’s own words.

How to Use the Police Report & Officer’s Testimony

While it is common for police to request all kinds of roadside tests, the reality is that there are only four (4) standardized tests that have been adopted by the National Transportation Safety Administration (“NTSA”). The tests are known as the Horizontal Nystagmus Test, the Walk and Turn Test, the One Leg Stand Test, and the ABC Test. A specific set of instructions, administrative procedures, and scoring system apply in accordance with the NTSA guidelines established for each of these tests. Fortunately, most police officers either never learned these requirements or forget them when it comes to applying them. The result is a police report that frequently recites the wrong instructions, administrative errors, or improper scoring. If the report fails to elicit problems like these, the live testimony of many officers reveals shortcomings. The truth is that the majority of police officers fail to properly instruct, administer, and/or score standardized field tests in accordance with NTSA guidelines—the same parameters that were established after years of study and testing. Common errors include:

  • Instructions: the officer is to not only instruct the subject in what is required of the test but also to demonstrate the test. On the walk and turn test, for example, the officer is required to walk heal to toe for nine (9) steps and then demonstrate the turn and how the subject is supposed to recite the number of his or her steps. Similar protocol applies to the one leg stand and demonstration. The instruction is to stand with one foot approximately six (6) inches off the ground, with hands to the side, and do so while counting in thousands for thirty (30) seconds (i.e. “one one thousand, two one thousand…”).
  • Administration: the tests are largely what is termed divided attention tests (a.k.a. psycho-physical tests) that are intended to measure both physical and mental faculties. Because individuals and locations can pose physical limitations, administration of the tests should not transpire under certain circumstances. For example, the walk and turn and one leg stand tests are not accurate and should not be administered to individuals with physical limitations like obesity (over 50 pounds overweight), significant injury to their lower extremities or back, etc. Similarly, the tests should not be administered on an uneven surface, when the weather is poor (e.g. windy, raining, snowing, etc.) or when there is debris in the road.
  • Scoring: Each test has specific “clues” of impairment. These clues are very particular and it is improper to score the same clue more than once although many police officers erroneously believe that this is OK. For example, NTSA guidelines provide for eight potential clues on the walk and turn – inability to maintain balance during the instruction phase, beginning before the instructions are complete, stopping while walking, failure to walk heal to toe, stepping off the line, using arms for balance, making an improper turn or counting incorrectly. Two or more clues must be present to fail the test. There are four (4) clues on the one leg stand — swaying, using arms for balance, hopping to hold balance, or placing the foot on the ground. Two or more clues indicate impairment.

In our experience, most DWI defense lawyers do not even get to issues like instructions, administration and/or scoring of field tests. They review the discovery and, unless there is something that jumps out at them, they are looking for you to take a plea. We find that you have almost no chance of dismissing or downgrading a driving while intoxicated charge when you take this cursory approach although it clearly is the norm. One of our field sobriety certified team members takes an in depth approach and is ready to sink their teeth into your case. Give us a call anytime 24/7 at 877-450-8301.