Standardized Field Sobriety Testing
California Insurance Proof Certificate, SR-22 is the mechanism in California to monitor the insurance of problem drivers and authorize the DMV to suspend upon cancellation (SR-26) or expiration. An SR-22 is a certificate issued by an insurance company and kept on file at the California Department of Motor Vehicles (DMV). This document is a guarantee that at least the California required minimum liability coverage has been obtained by the respective person. The insurance company will notify the DMV if the insurance coverage should lapse or be canceled for any reasons. If this should happen, California DMV will immediately issue an order of suspension.
Standards for the Standardized Field Sobriety Testing (SFST) Program Psychophysical tests should require evaluation of the subject’s appearance and condition, ability to follow instructions, as well as balance and coordination. These types of tests are called Divided Attention Tests. They require the subject to concentrate on more than one thing at a time. They divide the subject’s attention between mental and physical tasks. Studies have shown that a person who is under the influence of an alcoholic beverage may be able to perform one of these tasks but rarely both. If under the influence of an alcoholic beverage, people are likely to make certain predictable errors while attempting these tasks. Since the mid 1970’s, the National Highway Traffic Safety Administration (NHTSA), with the cooperation and assistance of the law enforcement community, has conducted research that resulted in the development of a battery of three standardized field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn and the One Leg Stand) to assist police officers in detecting impaired drivers.
The program, which was previously termed the Improved Sobriety Testing, was validated in laboratory and field studies conducted by the Southern California Research Institute. These tests were initially developed by the Los Angeles Police Department Training in how to conduct the tests is included in the NHTSA course “DWI Detection and Standardized Field Sobriety Testing.” In 1986, the Advisory Committee on Highway Safety of the International Association of Chiefs of Police (IACP) passed a resolution which recommended that law enforcement agencies adopt and implement the field sobriety testing program developed by NHTSA. As the program has grown, it has become apparent that in order to insure continued success, nationally accepted standards must be established. These standards which establish criteria for the selection and training of SFST practitioners would help insure the continued high level of success of the SFST program. In 1992, the IACP Highway Safety Committee recommended the development of this system of nationally accepted standards. In April of 1992, the IACP and NHTSA sponsored a meeting at the headquarters of IACP in Arlington,Virginia. Persons invited to this meeting included SFST instructors from several states, curriculum specialists and training administrators. The participants met in working groups to reach a consensus concerning the many issues relating to the SFST program and to develop recommended minimum standards to the IACP Advisory Committee on Highway Safety. The standards were drafted and presented to the committee for their review at the mid-year meeting in June 1992.
The Advisory Committee on Highway Safety by resolution adopted the National Standards for the SFST Program. (The Standards were subsequently approved by voting membership of the IACP). In order to maintain credibility and integrity of the program, agencies that use a training program other than that is currently approved by the IACP must have the alternative curriculum approved by the IACP Advisory Committee on Highway Safety as meeting the required learning objectives. This is supported by the National Highway Traffic Safety Administration.
Presently, SFST Training must be 16 hours in length and include at least two controlled drinking sessions utilizing volunteer drinkers. This is accordance with section 1.2 of the Standards For Training In Standardized Field Sobriety Testing. In section 1.4 in order to satisfactorily complete the classroom portion of the training, SFST candidates must complete the IACP-approved final examination with a score of not less than eighty percent. Candidates scoring less than 80% on the final may be retested one time under the supervision of a SFST instructor. The retest shall be completed not less than 15 nor more than 30 days following the completion of the classroom training. The examination used shall not have been administered to the candidate previously. If the candidate does not achieve a passing score on reexamination, the candidate must retake the classroom portion of the training and pass the final examination. In section III it is recommended that each agency develop refresher or in service training, as needed, to ensure that SFST trained personnel maintain their proficiency in the administration of their total DUI/DWI enforcement program.
The U.S. D.O.T. requires 35 practice tests within a six month period. A refusal can not be considered a practice test as the evaluation of the suspect must be corroborated by a blood alcohol reading. The officer is trained to conduct the HGN test last during his practice test period and not to formulate an opinion based on the results or use it for probable cause to arrest. They are told not to document the test due to this.
At no time may a person that is tested be used more than once on a practice test. As a result of this it is necessary to review the documentation of the practice tests in order to determine if the practitioner was properly recommended for certification. Generally there are three “tests” which are administered on scene.
Some Field Sobrierty Test Articles, Studies and Research
1. Marcelline Burns & Herbert Moskowitz, Psychophysiological Tests for DWI Arrest, Final Report, DOT-HS-802-424 (1977). V. Tharp et al., Development and Field Test of Psychophysiological Tests for DWI Arrest, Final Report, DOT-HS-805-864 (1981).
2. V. Tharp et al., supra. Theodore E. Anderson et al., Field Evaluation of a Behavioral Test Battery for DWI, DOT-HS-806-475 (1983).
3. William A. Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI J. Law & Sci. 1 (1987). G. Simpson, Attacking NHTSA’s Three-Test Field Sobriety Assessment, 3 DWI J. Law & Sci., 97. Jonathon D. Cowen & Susannah G. Jaffee, Field Sobriety Tests: The Flimsy Scientific Underpinnings, 5 DWI J. Law & Sci. 121 (1990). Mark Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. POF 3d 439 (1990). Jonathon D. Cowan & Susannah G. Jaffe, Proof and Disproof of Alcohol-Induced Impairment Though Evidence of Observable Intoxication and Coordination Testing, 9 Am. Jur., POF 3d, 459 (1990). Ronnie M. Cole & Spurgeon N. Cole, New Proof That Field Sobriety Tests Are ‘Failure-Designed,’ 6 DWI J.: Law & Sci. 1 (1991). Spurgeon Cole & Ronald H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure? 79 Percep. & Motor Skills, 99 (1994). Randy T. Leavitt, Horizontal Gaze Nystagmus, 22 Voice for the Defense 17 (1994). Ronald H. Nowaczyk & Spurgeon Cole, Separating Myth From Fact: A Review of Research on the Field Sobriety Tests, The Champion (Aug. 1995) 40. Charles R. Honts & Susan L. Amato-Henderson, Horizontal Gaze Nystagmus Test: The State of the Science in 1995, 71 N. Dak. L. Rev. 671 (1995). Joseph R. Meaney, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics J. 383 (1996).
4. Marcelline Burns, First Annual DWI Training Seminar, Houston (2000).
5. V. Tharp et al., supra.
6. Jack Stuster & Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below .10 Percent, DOT-HS-808-839 6 (1998).
7. Marcelline Burns & Ellen W. Anderson, Field Evaluation Study of the Standardized Field Sobriety Test (SFST) Battery (Final Report Submitted to the Colorado DOT, November, 1995).
8. Marcelline Burns & Teresa Dioquino, A Florida Validation Study of the Standardized Field Sobriety Test (SFST) Battery, (1997).
9. Jack Stuster & Marcelline Burns, supra at 8.
10. Marcelline Burns & Ellen W. Anderson, supra. Marcelline Burns & Teresa Dioquino, supra. Jack Stuster & Marcelline Burns, supra.
11. National Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000).
12. Gregory W. Good & Carol R. Augsburger, Use of Horizontal Gaze Nystagmus as a Part of Roadside Field Sobriety Testing, 63 Amer. J. Optometry & Physiological Optics, 467 (1986).
13. See Louis M. Hsu, Diagnostic Validity Statistics and the MCMI-III, 14 Psych. Assess. 410, 410-411 (2002).
14. A. James McKnight et al, Development of a Standardized Boating Sobriety Test, 31 Accid. Anal. & Prev. 147 (1999).
15. A. James McKnight et al., Sobriety Tests for Low Alcohol Blood Concentrations, 34 Accid. Anal. & Prev. 305 (2002).
16. A. James McKnight et al., Development of a Standardized Boating Sobriety Test, 31 Accid. Anal. & Prev. 147, 152 (1999).
17. A. James McKnight et al., Sobriety Tests for Low Alcohol Blood Concentrations, 34 Accid. Anal. & Prev. 305 (2002)
18. Thomas D. Cook & Donald T. Campbell, Quasi-Experimentation: Design & Analysis Issues for Field Settings 2–9 (1979).
19. Id., Donald T. Campbell & Julian C. Stanley, Experimental and Quasi-Experimental Designs for Research (1962).
20. See also Phillip E. Price & Spurgeon Cole, NHTSA Field Sobriety Tests: Validation and Invalidation, The Champion (Apr. 2001).
21. Marcelline Burns & Ellen W. Anderson, supra at 17.
22. See also J.L. Booker, End-Position Nystagmus as an Indictor of Ethanol Intoxication, 41 Sci. & Justice 113 (2001).
23. United States v. Horn, 185 F.Supp.2d 530, 558 (D.Md. 2002).
24. Marcelline Burns & Teresa Dioquino, supra, at 31.
25. Jack E. Richman & John Jakobowski, The Competency and Accuracy of Policy Academy Recruits in the Use of the Horizontal Gaze Nystagmus Test for Detecting Alcohol Impairment, 47 New Eng. J Optom. 5 (1994).
26. National Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000) at VIII-8, VIII-12, VIII-14.
27. Elazar J. Pedhazur, Multiple Regression in Behavioral Research 147-150 (2nd ed. 1982). Jum C. Nunnally & Ira H. Bernstein, Psychometric Theory 333 (3rd ed.1994).
28. Marcelline Burns & Herbert Moskowitz, Psychophysiological Tests for DWI Arrest, Final Report, DOT-HS-802-424 (1977). V. Tharp et al., supra. A. James McKnight et al., Development of a Standardized Boating Sobriety Test, 31 Accident Analysis and Prevention 147 (1999). A. James McKnight et al., Sobriety Tests for Low Alcohol Blood Concentrations, 34 Accid. Anal. & Prev. 305 (2002). See also Antti Penttila & Martti Tenju, Clinical Examination as Medicolegal Proof of Alcohol Intoxication, 16 Med. Sci. law (1976) 95. Robert S. Kennedy et al., Indexing Cognitive Tests to Alcohol Dosage and Comparison to Standardized Field Sobriety Tests, 55 J. of Studies on Alcohol 615 (1994).
29. V. Tharp et al., supra, at 30, 31.
30. Id. 30.
31. Id. 16.
32. Joseph Citron, MD, HGN: How to be Your Own Expert Witness (2002) (unpublished manuscript, http: //www.ncdd.com/ dsp_bookstore.cfm).
33. V. Tharp et al., supra at 7.
34. New Hampshire v. Dahood, #96-JT-707 (Concorde District Court, April 2002) at 11. (New Hampshire Supreme Court remanded the case to the Concord District Court to hold an evidentiary hearing and rule whether the HGN test incorporates scientific principles. If so, the court was to make findings as to the reliability of the test under New Hampshire Rule of Evidence 702).
35. J.L. Booker, supra.
36. Schultz v. State, 106 Md.App. 145, 664 A.2d 60 (1995).
37.Daubert v. Merrell Dow Pharma- ceuticals, 113 S.Ct. 2786 (1993).
38. United States v. Horn, 185 F.Supp.2d at 557.
39. New Hampshire v. Dahood, supra.
40. New Hampshire v. Dahood, (No. 99-510, December 20, 2002).
41. American Education Research Association, The American Psychological Association, and National Council on Measurement in Education, Standards for Education and Psychological Testing (1999).n