Chapter 14

STANDARDIZED FIELD SOBRIETY TESTING AND
CROSS-EXAMINATION OF THE ARRESTING OFFICER

I. (§14.1) Introduction

II. (§14.2) NHTSA's Three Phases of DWI Detection

A. (§14.3) Phase I-Vehicle in Motion
1. (§14.4) Initial Observations: Visual Cues to DWI
2. (§14.5) Stopping Sequence
B. (§14.6) Phase II-Personal Contact
1. (§14.7) Observation and Interview of the Driver
2. (§14.8) Exit Sequence
3. (§14.9) Officer Reliance on Odor of Alcohol as Basis of Reasonable Suspicion/Probable Cause

4. (§14.10) Officer Reliance on "Flushed or Red Face" or "Bloodshot Eyes" as Basis of Reasonable Suspicion/Probable Cause
5. (§14.11) Conclusion/NHTSA Impairment Clue Chart

______
*Mr. Guilfoil received his B.A. from DePaul University and his J.D. from the University of Kansas City at Kansas City. He is a partner in the law firm of THE GUILFOIL LAW GROUP, L.L.C., in Kansas City. Mr. Guilfoil has completed the International Association of Chiefs of Police (IACP)/National Highway Traffic Safety Administration (NHTSA) approved 20-hour course in the administration of standardized field sobriety tests and is an IACP/NHTSA certified Standardized Field Sobriety Testing Instructor. He has completed the 24-hour Drug Evaluation and Classification Overview Course, which forms the basis of the IACP/NHTSA Drug Recognition Expert Program. Mr. Guilfoil is a member of The National College for DUI Defense, The American Association of DUI Trial Lawyers, the Kansas City Association of Criminal Defense Lawyers, and the National Association of Criminal Defense Lawyers, and is a Kansas City internet affiliate to the internet cites: www.drunkdrivingdefense.com and www.dui-dwi.com.

C. (§14.12) Phase III-Pre-Arrest Screening
1. Standardized Field Sobriety Testing
a. (§14.13) Background of Field Sobriety Testing
b. (§14.14) Development of NHTSA Standardized Field Sobriety Test (SFST) Battery
c. Standardized Field Sobriety Testing Research-Validation Studies
(1) (§14.15) California (Lab)
(2) (§14.16) California (Lab and Field)
(3) (§14.17) Colorado (Field)
(4) (§14.18) Florida (Field)
(5) (§14.19) San Diego (Field)
d. (§14.20) NHTSA SFST Protocol
e. (§14.21) NHTSA SFST Purpose
f. (§14.22) Preliminary Advice to Clients Regarding Consenting to Field Sobriety Testing
2. General Field Sobriety Testing Caselaw
a. (§14.23) Admissibility of "Scientific Evidence" of Field Sobriety Testing
b. Kansas City Field Sobriety Cases
(1) (§14.24) Admissibility of a Driver's Refusal of SFSTs
(2) (§14.25) Brown v. Director of Revenue
(3) (§14.26) Kansas City Horizontal Gaze Nystagmus (HGN) Cases
c. (§14.27) Other Jurisdictions' Field Sobriety Cases
(1) (§14.28) State v. Homan
(2) (§14.29) United States v. Horn
(3) (§14.30) State v. Lasworth
3. NHTSA-Approved SFST Battery
a. (§14.31) HGN Test
(1) (§14.32) HGN Test Pretest and Instructions
(2) (§14.33) Lack of Smooth Pursuit
(3) (§14.34) Distinct Nystagmus at Maximum Deviation
(4) (§14.35) Onset of Nystagmus Prior to 45 Degrees
(5) (§14.36) Vertical Gaze Nystagmus (VGN)
b. (§14.37) Walk-and-Turn (WAT) Test
(1) (§14.38) Two Stages of WAT Test
(a) (§14.39) Instructions Stage
(b) (§14.40) Walking Stage
(2) (§14.41) Scoring
c. (§14.42) One-Leg Stand (OLS) Test
(1) (§14.43) Two Stages of OLS Test
(a) (§14.44) Instructions Stage
(b) (§14.45) Balance and Counting Stage
(2) (§14.46) Scoring
4. (§14.47) Portable Breath Tests (PBTs); Kansas City PBT Law
5. (§14.48) Arrest Decision

6. (§14.49) Fifth Amendment Considerations; Tests Testimonial in Nature
7. (§14.50) Nonstandardized Field Sobriety Tests
a. (§14.51) Finger-to-Nose Test
b. (§14.52) Finger-Count Test
c. (§14.53) Hand-Pat Test
d. (§14.54) Alphabet Test
e. (§14.55) Reverse Counting/Countdown
f. (§14.56) Tracing/Writing/Drawing Test
g. (§14.57) Rhomberg Test

III. Admission of NHTSA Manuals Into Evidence

A. (§14.58) Generally
B. (§14.59) Certified Copies
C. (§14.60) Noncertified Copies

IV. Cross-Examination of Arresting Officer

A. (§14.61) Visiting the Scene of the Stop
B. (§14.62) Videotapes
C. (§14.63) Police Reports
D. (§14.64) Examination of Officer Before Trial
E. (§14.65) Reasonable Suspicion/Probable Cause Based on SFSTs
F. (§14.66) Outline for Cross-Examination
G. (§14.67) Examples of Cross-Examination Questions
1. (§14.68) Introduction
2. (§14.69) Reports
3. (§14.70) Number of DWI Trials
4. (§14.71) Overtime Related to Arrests
5. (§14.72) Professional Witness
6. (§14.73) Operation (if at Issue)
7. (§14.74) Vehicle in Motion
8. (§14.75) Further Driving Examples
9. (§14.76) Stopping Sequence
10. (§14.77) Initial Response to Emergency Lights
11. (§14.78) Personal Observations
12. Interview

a. (§14.79) General
b. (§14.80) NHTSA Interview Clues
c. (§14.81) Requests for Documentation
d. (§14.82) Nervousness
e. (§14.83) Odor of Intoxicating Beverage
f. (§14.84) Blood Shot Eyes-Dazed Look on Face
g. (§14.85) Slurred Speech
h. (§14.86) Flushed Face
i. (§14.87) Sluggish Mannerisms
13. (§14.88) Exit Sequence
14. (§14.89) Exit Sequence Further Examples

15. (§14.90) Standardized Field Sobriety Testing
a. (§14.91) HGN Test
(1) (§14.92) Test Conditions
(2) (§14.93) Pretest
(3) (§14.94) Lack of Smooth Pursuit
(4) (§14.95) Distinct Nystagmus at Maximum Deviation
(5) (§14.96) Onset of Nystagmus Prior to 45 Degrees
b. (§14.97) WAT Test
c. (§14.98) Other Examples for WAT
d. (§14.99) OLS Test
16. (§14.100) Blood Alcohol Content (BAC) Correlation With Time
17. (§14.101) Timing of Events

I. (§14.1) Introduction

The process of detecting driving while intoxicated (DWI) offenses begins when a law enforcement officer suspects a potential alcohol-related traffic offense may be occurring, and it does not end until the officer decides to arrest or not arrest a subject for DWI. Conduct that occurs during the time period from when a driver is first observed by the officer until an arrest decision is made is regulated by the National Highway Traffic Safety Administration's (NHTSA) DWI Detection and Standardized Field Sobriety Testing Manual. U.S. Department of Transportation, NHTSA, DWI Detection and Standardized Field Sobriety Testing, Student Manuals.

In 1986, the Advisory Committee on Highway Safety of the International Association of Chiefs of Police (IACP) passed a resolution recommending that all law enforcement agencies adopt and implement the standardized field sobriety testing procedures developed by NHTSA. In 1992, NHTSA and the IACP Advisory Committee on Highway Safety adopted the current NHTSA course, "DWI Detection and Standardized Field Sobriety Testing." The standards of this program have been approved by the voting membership of the IACP.

The police academy in Kansas City has been teaching the NHTSA-based course of DWI detection and standardized field sobriety testing since 1984. Accordingly, law enforcement in Kansas City is governed by its protocol. Because there are only three field sobriety tests "standardized" by NHTSA for determining alcohol impairment in drivers, it is vital for practitioners to become familiar with NHTSA's rules for the proper administration of these tests. The NHTSA DWI Detection Manuals, both Student and Instructor, from the various years, may be ordered from the National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, 800/553-6847, or at a discounted rate from consultants Walden, Platt and Associates, 219 North Main Street, Suite 406, Bryan, Texas 77803, 979/822-3060, www.waldenplatt.com.

It is important also to note as a preliminary matter that the administration of standardized field sobriety tests (SFSTs) is only one part of NHTSA's protocol regarding proper DWI detection by law enforcement (Phase III-"Pre-Arrest Screening"). Phase I ("Vehicle in Motion") and Phase II ("Personal Contact") of NHTSA's curriculum regulate all contact by the law enforcement officer with a suspected driver before field sobriety tests are administered in Phase III. 2002 NHTSA Student Manual, IV-5. While Phase I or Phase II of the NHTSA course might not be applicable in some cases, such as when there has been an accident or in the case of a sobriety checkpoint, it is very clear that there must be sufficient reasonable suspicion from the officer's observations of the driver in these initial phases to justify proceeding with the administration of SFSTs in Phase III.

II. (§14.2) NHTSA's Three Phases of DWI Detection

As discussed in §14.1 above, there are three phases to the National Highway Traffic Safety Administration (NHTSA) protocol for driving while intoxicated (DWI) detection:

1. Phase I-Vehicle in Motion
2. Phase II-Personal Contact
3. Phase III-Pre-Arrest Screening

The U.S. Department of Transportation, NHTSA, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2002 NHTSA Student Manual), specifies that "[i]n each phase of detection, [the officer] must determine whether there is sufficient evidence to establish 'reasonable suspicion' necessary to proceed to the next step in the detection process." 2002 NHTSA Student Manual, IV-5. In short, the officer does not have the right to administer standardized field sobriety tests (SFSTs) to a driver unless the officer possesses reasonable suspicion from personal observations of the driver under Phases I and II.

A. (§14.3) Phase I-Vehicle in Motion

As mentioned in §4.1 above, Phase I might not be applicable in some cases, as in some accidents or sobriety checkpoint cases. But an officer who can observe the vehicle in motion must follow the NHTSA protocol for observing the driver while operating the vehicle. When Phase I applies, the officer is required to observe clues regarding the vehicle in operation and regarding the driver's stopping sequence.

1. (§14.4) Initial Observations: Visual Cues to DWI
The officer is to ask the following preliminary questions when observing the vehicle in motion:

" What is the vehicle doing?
" Do I have grounds to stop the vehicle?
" How does the driver respond to my signal to stop?
" How does the driver handle the vehicle during the stopping sequence?

NHTSA protocol instructs officers that there are a number of visual clues to use and record while observing the vehicle in motion. 2002 NHTSA Student Manual, V-5-V-8; 2002 NHTSA Instructor Manual, V-4:

" Turning with a wide radius
" Straddling center or lane marker
" Appearing to be impaired
" Eye fixation
" Tightly gripping the steering wheel
" Slouching in the seat
" Gesturing erratically or obscenely
" Face close to the windshield
" Drinking in the vehicle
" Driver's head protruding from the vehicle
" Almost striking an object or vehicle
" Weaving
" Driving on other than designated roadway
" Swerving
" Speed slower than 10 m.p.h. below the limit
" Stopping in the lane for no apparent reason
" Following too closely
" Drifting
" Tires on center or lane marker
" Braking erratically
" Driving into opposing or crossing traffic
" Slow response to traffic signals
" Signaling inconsistent with driving actions
" Stopping inappropriately with driving actions
" Stopping inappropriately (other than in traffic lane)
" Turning abruptly or illegally
" Accelerating or decelerating rapidly
" Headlights off

2. (§14.5) Stopping Sequence

The second component of observing the vehicle in motion requires the officer to observe and record the stopping sequence of the driver. The officer is to "observe the manner in which the driver responds to [the] signal to stop, and to note any additional evidence of a DWI violation." 2002 NHTSA Student Manual, V-10. The cues the officer is to use in observing and recording the driver's stopping sequence are:

an attempt to flee;
no response;
slow response;
an abrupt swerve;
sudden stop; and
striking the curb or another object.

Id.

If Phase I applies and the officer has reasonable suspicion to believe that an alcohol-related traffic offense is occurring, the officer is to proceed with Phase II.

B. (§14.6) Phase II-Personal Contact

The officer's personal observation of the driver in Phase II is a pivotal point in a DWI case. Under NHTSA protocol, the officer is to:

1. observe and interview the driver; and
2. observe the driver's exit and walk when the driver is asked to step from the vehicle.

It should be noted that NHTSA instructs the officer to proceed with the second step and observe the driver's exit and walk after asking the driver to step from the vehicle only if sufficient cause exists to warrant further investigation after the driver's interview unless it is the jurisdiction's policy to make all drivers step from the vehicle at this point in the process. 2002 NHTSA Student Manual, VI-1-2; 2002 NHTSA Instructor Manual, VI-2. It is important for the defense practitioner to be aware of the procedures of the police department in the case.

1. (§14.7) Observation and Interview of the Driver

When observing and interviewing the driver, NHTSA provides the following questions for the officer to observe and record:

" When I approach the vehicle, what do I see?
" When I talk to the driver, what do I hear, see, and smell?
" How does the driver respond to my questions?
" Should I instruct the driver to exit the vehicle?
" How does the driver exit?
" When the driver walks toward the side of the road, what do I see?

NHTSA also offers the following clues for the officer to observe and record at this point in the stop:

" Sight-bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers, drugs or drug paraphernalia, bruises, bumps or scratches, unusual actions

" Hearing-slurred speech, admission of drinking, inconsistent responses, abusive language, unusual statements

" Smell-alcoholic beverages, marijuana, cover up odors like breath sprays, unusual odors

2002 NHTSA Student Manual, VI-3; 2002 NHTSA Instructor Manual, VI-3-4.

NHTSA's protocol suggests that, while observing and recording any of the above clues during the interview, the officer pose divided-attention tasks to the driver by asking that more than one task be performed at the same time, e.g., requesting the driver's license and vehicle registration at the same time. The following are further clues the officer is trained to look for while administering divided-attention requests to the driver in Phase II:
" Forgets to produce both documents (driver's license and registration)
" Produces documents other than those requested
" Fails to see the license, registration, or both while searching through wallet or purse
" Fumbles or drops wallet, purse, license, or registration
" Is unable to retrieve documents using fingertips

2002 NHTSA Student Manual, VI-4; 2002 NHTSA Instructor Manual VI-7.

During the driver interview in Phase II, the officer may consider employing the "additional techniques" of three nonstandardized field sobriety tests:

1. Alphabet
2. Countdown
3. Finger count

2002 NHTSA Student Manual, VI-5-6; 2002 NHTSA Instructor Manual, VI-8-9. While NHTSA offers these three items as techniques to employ at this point in the DWI detection process, the text in the student manual emphasizes: "THESE TECHNIQUES DO NOT REPLACE THE SFST." 2002 NHTSA Student Manual, VI 4. Because these types of tests are not "standardized," i.e., there are no set administrative procedures or scoring protocol, and because NHTSA studies specifically excluded these tests as unreliable in determining alcohol impairment in its SFST validation studies, defense counsel should seek their suppression, or at least obtain a limiting instruction. See §§14.50-14.57, infra.

2. (§14.8) Exit Sequence

The 2002 NHTSA Instructor Manual provides:

1. The decision to instruct the suspect to exit the vehicle may be based on suspicion that the suspect may be impaired.

a. Even though that suspicion may be strong, the suspect usually is not yet under arrest at this point.
b. How the suspect exits the vehicle, and the actions and behavior of the suspect during the exit sequence, may provide important additional evidence of alcohol and/or other drug influence.

2002 NHTSA Instructor Manual, VI-9. NHTSA instructs the officer that, if sufficient cause exists to order the driver to step from the vehicle for further investigation after the initial interview, the officer is to then observe and record the driver's exit and walk from the vehicle. The officer is to observe and record the following clues for the driver's exit sequence in Phase II:

shows angry or unusual reactions;
cannot follow instructions;
cannot open the door;
leaves the vehicle in gear;
"climbs" out of vehicle;
leans against vehicle;
keeps hands on vehicle for balance.

2002 NHTSA Student Manual, VI-6.

Counsel should note that the Supreme Court of the United States has made it clear that the detention of a person "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Fla. v. Royer, 460 U.S. 491, 500 (1983). When a driver is stopped for a minor traffic violation and the officer continues to detain the driver to investigate more serious offenses, such as drunk driving, many states hold that the officer must have articulable, reasonable suspicion to do so.

In Kansas City, when an officer stops a vehicle to issue a de minimis citation, such as a license plate expiration, the officer may properly order a motorist out of a vehicle, even without any indication of illegal conduct besides the de minimis violation. State v. Preston, 861 S.W.2d 627 (Mo. App. E.D.1993); see also Pa. v. Mimms, 434 U.S. 106 (1977) (a person can be required to exit a vehicle without any additional justification, in furtherance of officer safety). In Kansas City, a police officer's investigation during a traffic stop may include:

" asking for a driver's license and registration;
" requesting that the driver sit in the patrol car; and
" asking about the driver's destination and purpose.

But once the officer has completed these steps, the detainee must be allowed to proceed unless specific, articulable facts create objectively reasonable suspicion that the driver is involved in criminal activity. State v. Slavin, 944 S.W.2d 314 (Mo. App. W.D. 1997).

3. (§14.9) Officer Reliance on Odor of Alcohol as Basis of Reasonable Suspicion/Probable Cause

Counsel is often presented with the scenario of an arresting officer basing "reasonable suspicion" to make the driver exit the vehicle and perform SFSTs solely on the odor of alcohol on the driver's breath with no other indicia of intoxication. Defense counsel faced with this situation should refer for cross-examination of the officer to a study on whether alcohol odor is an accurate or effective means of detecting intoxication. See Herbert Moskowitz, Marcelline Burns & Susan Ferguson, Police Officers' Detection of Breath Odors From Alcohol Ingestion, 31 ACCIDENT ANALYSIS AND PREVENTION 175 (May 1999). It should be noted that this study was conducted by the same researchers who conducted NHTSA's validation studies for standardized field sobriety testing. The conclusions of the researchers in the study were clear: breath odor detection is completely unreliable in determining whether subjects with alcohol on their breath are above or below certain blood alcohol concentration (BAC) levels, and the officers' estimates of BAC levels in the study failed to rise above random guesses.

Counsel should also refer to caselaw on the subject of reasonable suspicion being based solely on the odor of alcohol. See State v. Taylor, 444 N.E.2d 481, 482 (Ohio Ct. App. 1981):

The mere odor of alcohol about a driver's person, not even characterized by such customary adjectives as "pervasive" or "strong," may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony. For better or worse, the law prohibits drunken driving, not driving after a drink.

Id. at 482.

See also:

" Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994) (slight weaving across line, "normal" odor of alcohol beverage, admission of a couple of drinks, and refusal of field sobriety tests);

" Keehn v. Town of Torrington, 834 P.2d 112 (Wyo. 1992);

" State v. Kliphouse, 771 So.2d 16 (Fla. Dist. Ct. App. 2000) (unconscious motorcyclist who did not cause accident had odor of alcoholic beverage);
" State v. Taylor, 444 N.E.2d 481 (see above);

" People v. Boomer, 757 N.E.2d 960 (Ill. App. Ct. 2001), review denied, 766 N.E.2d 241 (Ill. 2002) (strong odor of alcohol on the breath of a person who had been involved in a motorcycle accident did not constitute probable cause to believe the person was under the influence);

" People v. Roybal, 655 P.2d 410 (Colo. 1982) (when there was no indication that defendant caused collision, and arresting officer observed none of the common indicia of intoxication in defendant's speech, walk, or ability to understand, there was no probable cause to arrest defendant for driving under influence of intoxicating liquor, notwithstanding that officer noticed odor of alcoholic beverage about defendant).

4. (§14.10) Officer Reliance on "Flushed or Red Face" or "Bloodshot Eyes" as Basis of Reasonable Suspicion/Probable Cause

Besides "odor of alcohol," perhaps the most common observations an officer will give as indicia of intoxication for determining reasonable suspicion or probable cause are "red or flushed face" and "bloodshot eyes." It is unlikely that counsel will ever come across a DWI case when at least some of these boxes on the police report are not marked. When an officer relies heavily on "red or flushed face" or "bloodshot eyes" as the sole basis for continuing the investigation of the driver, the case should be vigorously challenged because NHTSA has discounted these clues as prejudicial and irrelevant to determining intoxication. NHTSA released a report in 1997 that removes all of these clues as indicators of impairment. The materials provide an excellent resource for cross-examination of an arresting officer. Specifically, the report states:

Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.

Jack Stuster, U.S. Department of Transportation, NHTSA
Final Report, The Detection of DWI at BACs Below 0.10,
DOT HS 808-654 (Sept. 1997), p. E-10, available at http://isddc.dot.gov/OLPFiles/NHTSA/007372.pdf.

5. (§14.11) Conclusion/NHTSA Impairment Clue Chart

It is vital that defense counsel thoroughly examine all the facts and actions of the driver and the police officers in the case, looking to see whether reasonable suspicion was present by an objective standard before the officer administered any SFSTs in Phase III. When evaluating the clues of impairment, the following is a helpful chart of NHTSA's Phase I and Phase II clues, developed by Troy Huser of Manhattan, Kansas, cited with his permission. An effective technique for cross-examination of the arresting officer is to "grade" the driver's performance during the arrest using this chart by marking all clues observed and not observed by the officer.

To use this chart, the percentages listed indicate how accurate NHTSA believes the clues to be for indicating alcohol impairment in a driver. The chart lists 65 possible clues. An effective technique is to add up the total clues the officer testifies were allegedly observed, and subtract that number from the 65 total clues. This usually leaves the driver a favorable percentage of indicating sobriety-i.e., the NHTSA clues not observed will indicate the driver's grade for sobriety.

NHTSA IMPAIRMENT CLUE CHART

IMPAIRMENT CLUE OBSERVED BY OFFICER NOT OBSERVED BY OFFICER
SOURCE
NHTSA 2000 [NHTSA 1995] {NHTSA 2002}

INITIAL OBSERVATIONS

Slowed reactions

V-2, [V-2], {V 2}
Willingness to take risks

V-2, [V-2], {V 2}
Impaired vision

V-2, [V-2], {V 2}
Poor coordination

V-2, [V-2], {V 2}

VISUAL CUES OF DRIVING

Turning with wide radius

V-4, [V-5 65%], {V-5}
Straddling center or lane marker

V-4, [V-5 65%], {V-5}
Appearing to be impaired

V-4, [V-5 60%], {V-5}
Eye fixation

V-4, [V-5], {V-5}
Tightly gripping steering wheel

V-4, [V-5], {V-5}
Slouching in seat

V-4, [V-5], {V-5}
Gesturing
erratically or obscenely

V-4, [V-5], {V-5}
Face close to the
windshield

V-4, [V-5], {V-5}
Drinking in
Vehicle

V-4, [V-5], {V-5}
Driver's head
protruding from vehicle

V-4, [V-5], {V-5}
Almost striking object or vehicle

V-4, [V-5 60%], {V-5}
Weaving

V-4, [V-5 60%], {V-5}
Driving on other than designated roadway

V-4, [V-5 55%], {V-5}
Swerving

V-5, [V-6 55%], {V-6}
Speed slower than 10 MPH

V-5, [V-6 50%], {V-6}
Stopping in lane for no apparent reason

V-5, [V-6 50%], {V-6}
Following too closely

V-5, [V-6 50%], {V-6}
Drifting

V-5, [V-6 50%], {V-6}
Tires on center lane marker

V-5, [V-6 45%], {V-6}
Braking erratically

V-5, [V-6 45%], {V-6}
Drifting into opposing or oncoming traffic

V-6, [V-7 45%], {V-7}
Slow response to traffic signals

V-6, [V-7 40%], {V-7}
Signaling in- consistent with driving actions

V-6, [V-7 40%], {V-7}
Stopping inappropriately (other than in traffic lane)

V-6, [V-7 35%], {V-7}
Turning abruptly or illegally

V-6, [V-7 35%], {V-7}
Accelerating or decelerating rapidly

V-6, [V-7 30%], {V-7}
Headlights off

V-6, [V-7 30%], {V-7}

STOPPING SEQUENCE

Attempt to flee

V-9, [V-10], {V-10}
No response

V-9, [V-10], {V-10}
Slow response

V-9, [V-10], {V-10}
Abrupt swerve

V-9, [V-10], {V-10}
Sudden stop

V-9, [V-10], {V-10}
Striking the curb or object

V-9, [V-10], {V-10}

PERSONAL CONTACT

Sight

Bloodshot eyes

VI-3, [VI-3], {VI-3}
Soiled clothing

VI-3, [VI-3], {VI-3}
Fumbling fingers

VI-3, [VI-3], {VI-3}
Alcohol containers in vehicle

VI-3, [VI-3], {VI-3}
Drugs/
Paraphernalia

VI-3, [VI-3], {VI-3}
Bruises/Bumps/
Scratches

VI-3, [VI-3], {VI-3}
Unusual actions

VI-3, [VI-3], {VI-3}

Hearing

Slurred speech

VI-3, [VI-3], {VI-3}
Admission of drinking

VI-3, [VI-3], {VI-3}
Inconsistent responses

VI-3, [VI-3], {VI-3}
Abusive
language

VI-3, [VI-3], {VI-3}
Unusual
statements

VI-3, [VI-3], {VI-3}

Smell

Alcoholic
beverages

VI-3, [VI-3], {VI-3}
Marijuana

VI-3, [VI-3], {VI-3}
Breath cover-ups, e.g., sprays

VI-3, [VI-3], {VI-3}
Unusual odors

VI-3, [VI-3], {VI-3}

PRE-EXIT INTERVIEW

Forgets to produce both documents

VI-4, [VI-4], {VI-4}
Produces documents other than requested

VI-4, [VI-4], {VI-4}
Fails to see item in wallet

VI-4, [VI-4], {VI-4}
Fumbles or drops wallet or document

VI-4, [VI-4], {VI-4}
Can't retrieve documents using fingertips


VI-4, [VI-4], {VI-4}

EXIT SEQUENCE

Shows angry/ unusual actions

VI-6, [VI-6], {VI-6}
Cannot follow instructions

VI-6, [VI-6], {VI-6}
Cannot open the door

VI-6, [VI-6], {VI-6}
Leaves vehicle in gear

VI-6, [VI-6], {VI-6}
"Climbs" out of vehicle
VI-6, [VI-6], {VI-6}
Leans on vehicle
VI-6, [VI-6], {VI-6}
Keeps hands on vehicle for balance

VI-6, [VI-6], {VI-6}
TOTALS
______ of 65
Possible Clues Observed

100-90 A
89-80 B
79-70 C
69-60 D

C. (§14.12) Phase III-Pre-Arrest Screening

Phase III is the "pre-arrest screening," which has "two major evidence gathering tasks and one major decision." U.S. Department of Transportation, National Highway Traffic Safety Administration (NHTSA), DWI Detection and Standardized Field Sobriety Testing, Student Manual (2002 NHTSA Student Manual), VII-1. First, the officer is to administer the three standardized field sobriety tests to the driver:

1. Walk-and-turn (WAT) test
2. One-leg stand (OLS) test
3. Horizontal gaze nystagmus (HGN) test

If sufficient probable cause exists to arrest the driver based on the driver's performance on the three tests, the officer may then arrange for, or administer, a preliminary portable breath test (PBT). Both of these tasks culminate in the decision of whether to arrest the driver for an alcohol-related traffic offense. The student manual instructs the officer to consider the following when conducting Phase III:
" Should I administer field sobriety tests to the driver?
" How does the driver perform those tests?
" What exactly did the driver do wrong when performing the tests?
" Do I have probable cause to arrest for driving while intoxicated (DWI)?
" Should I administer a PBT?
" What are the results of the PBT?

1. Standardized Field Sobriety Testing

a. (§14.13) Background of Field Sobriety Testing

Police officers have administered various forms of field sobriety tests to drivers as long as there have been alcohol-related traffic offenses. The performance of the driver on these tests has been used by police for years to develop probable cause for arrest and as evidence in court. Before the mid-1970s, a wide variety of field tests were used to determine whether a driver was "sober."

It became evident that there was a need to develop a battery of valid, standardized field sobriety tests because the existing tests were being administered inconsistently between jurisdictions and ranged from blowing up a balloon to picking up loose change off the hood of a vehicle. U.S. Department of Transportation, NHTSA, DWI Detection and Standardized Field Sobriety Testing, Instructor Manual (2002 NHTSA Instructor Manual), VIII-1.

b. (§14.14) Development of NHTSA Standardized Field Sobriety Test (SFST) Battery

In 1975, the NHTSA contracted with the Southern California Research Institute (SCRI) to evaluate the sobriety tests that officers were using in the field at the time to make alcohol-related traffic arrests and to determine which of the existing tests being typically administered were the most accurate. Marcelline Burns & Herbert Moskowitz, U.S. Department of Transportation, NHTSA Final Report, Psychophysical Tests for DWI Arrest, DOT HS-802-424 (June 1977), available from National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, 800/553-6847.

c. Standardized Field Sobriety Testing Research-Validation Studies

(1) (§14.15) California (Lab)

To determine which of the field sobriety tests were being administered the most frequently, SCRI traveled through the United States interviewing law enforcement agencies regarding their practices. Initially, six tests were used for the study:

1. OLS test
2. Finger-to-nose test
3. Finger count test
4. WAT test
5. Tracing/drawing/writing test
6. Both the vertical and horizontal gaze nystagmus tests

There were also four alternate field tests to be used. The results of the test were scored from one to ten.

The 1977 research had the following objectives:

To evaluate currently used physical coordination tests to determine their relationship to intoxication and driving impairment; to develop more sensitive tests that would provide more reliable evidence of impairment; and, to standardize the tests and observations.

Marcelline Burns & Herbert Moskowitz, U.S. Department of Transportation, NHTSA, Psychophysical Tests for DWI Arrest, DOT HS-802-424, p. 9 (June 1977).

Ten officers performed the field tests on 238 subjects, and:

The researchers analyzed their data and found that, using the sores from all six tests, they could correctly classify a volunteer's BAC as being either above or below 0.10 about 83 percent of the time.

1995 NHTSA Student Manual, VIII-2.

SCRI's research indicated that three of these tests-the OLS test, the WAT test, and the alcohol gaze nystagmus test, later called the HGN test-were the most reliable of the six tests for the purposes of determining blood alcohol contents (BACs) above 0.10, but that "these tests were not yet standardized in their final form." Standardization was allegedly achieved in the next phase of research. Id. at VIII 3.

It should be noted that, even using the allegedly accurate three-test SFST battery, 47% of the subjects who would have been arrested in the field based on the officers' scoring of the three SFSTs had actual BACs below 0.10. Marcelline Burns & Herbert Moskowitz, U.S. Department of Transportation, NHTSA, Psychophysical Tests for DWI Arrest, DOT HS-802-424, at 28, 30, 102 (June 1977).

Problems with the scientific validity of the 1977 SCRI study include, but are not limited to, the following:

" No ophthalmologists or neurologists were consulted.

" There was no true reliability testing conducted.

" There were no controls in place for the variables: alcohol odor, subjects' swaying while performing the test, subjects' eyes, or subjects' attitudes.

" Obese and elderly subjects were excluded entirely from the test, possibly skewing the data.

" Prevailing literature was selectively referenced.

" There was no contact lens testing.

After the 1977 study, SCRI attempted to standardize conditions in both the laboratory and the field with respect to these three field sobriety tests.

(2) (§14.16) California (Lab and Field)

The 1981 California lab and field study exclusively utilized the new three-test field sobriety battery (OLS, WAT, and HGN). V. Tharp, Marcelline Burns & Herbert Moskowitz, U.S. Department of Transportation, NHTSA, Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864 (March 1981).
Ten officers administered the field sobriety battery to 297 subjects whose BACs ranged from 0.00% to 0.18%. Id. at p. 2; 1995 NHTSA Student Manual, VIII-4.

Law enforcement officers were allegedly able to correctly determine whether a test subject's BAC was above or below the 0.10 BAC level using the three-test battery 81-82% of the time, with the HGN test being 77% accurate, the WAT test 68% accurate, and the OLS test 65% accurate. The average error made by the officers in determining the subject's correct BAC was 0.03%; thus, a 0.10% guess could be 0.07% or 0.13%. Development and Field Test of Psychophysical Tests for DWI Arrest, DOT HS-805-864, p. 2; 1995 NHTSA Student Manual, VIII-5.

The error rate for false arrests lowered somewhat in the 1981 study from the 1977 study. The false arrest results dropped from 47% to 32%, i.e., one-third of people were falsely arrested in the study. Development and Field Test of Psychophysical Tests for DWI Arrest, DOT HS-805-864. Another interesting note is that 50% of all the subjects had Distinct Nystagmus at Maximum Deviation, clue two of the HGN test, without any alcohol. Id. at 7.

Problems with the scientific validity of the 1981 SCRI study include, but are not limited to, the following:

" The study lacked a control group.

" The study lacked random subjects.

" The study lacked a blind study group.

" No ophthalmologists or neurologists were consulted.

" There was no true reliability testing conducted.

" No controls were in place for the variables: alcohol odor, subjects' swaying while performing the test, the subjective condition of the subjects' eyes, or subjects' attitudes.

" Obese and elderly subjects were excluded entirely from the test, possibly skewing the data.
" Prevailing literature was selectively referenced.

" There was no contact lens testing.

A separate field study was also conducted at the same
time to determine proper procedures for administering
the new three-test field sobriety battery and for setting
forth scoring procedures for law enforcement officers
to utilize while administering the tests in the field.
Theodore E. Anderson, Robert M. Schweitz & Monroe B. Snyder, U.S. Department of Transportation, NHTSA Technical Note, Field Evaluation of a Behavioral Test Battery for DWI, DOT HS 806-475 (Sept. 1983), available at www.ndaa-apri.org/pdf/eval_beh.pdf. These scoring procedures form the basis of the current NHTSA protocol, which officers are trained to follow in administering the three standardized field sobriety tests.

(3) (§14.17) Colorado (Field)

The next validation study, in Colorado, was unique in that it focused on BAC levels of 0.05% and 0.10%. The goal of the study was to validate the new field sobriety battery for a 0.05% BAC standard. Law enforcement officers from across Colorado were trained in the proper administration of the three SFSTs, and they submitted to researchers of the SFSTs the results of tests they administered to drivers over a five-month period. The study used a modified scoring system, which differed from that used in the previous studies.

The researchers tested the accuracy of the new three-test SFST battery by comparing the field-test results as scored by the officer with a breath or blood sample of the same driver who performed the field tests, or with a PBT administered in the field. Marcelline Burns & Ellen W. Anderson, A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery (Nov. 1995), p. 3, available at www.ndaa-apri.org/pdf/co_val2.pdf. The mean BAC of subjects in the study was 0.152%.

Breath and blood tests allegedly supported 94% of the officers' decisions to arrest based on the results of the administered field sobriety tests, using the 0.05% BAC standard. Further, PBT measurements indicated 64% correct release decisions, despite the fact that in many states, including Kansas City, PBTs are not evidentiary and cannot be relied on for any purpose other than establishing probable cause. The Colorado study concluded that: "Overall, 86% of the officers' decisions to arrest or release drivers who provided blood or breath specimens were correct." Id. at 3.

Defense counsel should note that NHTSA and SCRI never released the results of the Colorado study regarding the 0.10% BAC standard, and the officers' administration of the field sobriety testing battery was only monitored 40% to 50% of the time during the Colorado study.

(4) (§14.18) Florida (Field)

The Florida validation study used the same basic methodology as the Colorado study-see Marcelline Burns & Ellen W. Anderson, A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery (Nov. 1995)-except that it attempted to validate the SFSTs to a 0.08% BAC standard. The goals of the Florida validation study were to ensure:

" standardization of the administration and interpretation of the SFSTs;
" data integrity; and
" data completeness.

Marcelline Burns & Teresa R. Dioquino, A
Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery (1997), at p. 8, available at www.ndaa-apri.org/pdf/FL_vald.pdf.

As with the Colorado study, enforcement officers from across the state were trained in the proper administration of the three SFSTs, and they submitted to researchers the results of the SFSTs they administered to drivers. The researchers in the Florida study also tested the accuracy of the SFST battery by comparing the field-test results as scored by officers with a breath or blood sample of the driver, or with a PBT administered in the field.

The Florida validation study consisted of 256 measured BACs. Breath or blood testing at the station accounted for 210 of the recorded BAC results, and 46 were obtained with a PBT device. Id. at p. 16. The mean BAC of subjects in the study was 0.15%.

The Florida study concluded, "The data obtained during this study demonstrate that 95% of the officers' decisions to arrest drivers were correct decisions. Furthermore, 82% of their decisions to release drivers were correct." Id. at 38.

Problems with the scientific validity of the 1997 Florida study include, but are not limited to, the following:

" The subjects could be objectively viewed as disproportionately impaired in the study, artificially increasing the number of correct arrests made by officers, while, at the same time, decreasing the tests' sensitivity and the validity of the results of the test battery for a 0.08% BAC standard. Of the subjects tested, only 19% had a BAC less than 0.08%, only 12% had a BAC between 0.08% and 0.10%, and a disproportionately large 41% of the test subjects had a BAC in excess of 0.15%.

" All of the officers used in the study were standardized field sobriety testing instructors, with six to nine years of experience. Because no officers were used with less than six years of experience, the tests' objectivity and sensitivity were arguably voided regarding less-trained officers administering the tests.

" The officers administering the test battery were only monitored by the researchers 64% of the time during the study.

(5) (§14.19) San Diego (Field)

In 1997, another SFST validation study was conducted utilizing officers from San Diego, California. Jack W. Stuster & Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, U.S. Department of Transportation, NHTSA, DOT HS-808-839 (Aug. 1998), available at www.nhtsa.dot.gov/people/injury/
alcohol/Archive/Limit.08/!SFSTREP.PDF. The mean BAC of the subjects used in the study was 0.11%.

The San Diego validation study found:

[T]hat officers' estimates of whether a motorist's BAC was above or below 0.08 or 0.04 percent were extremely accurate. Estimates at or above the 0.08 level were accurate in 91 percent of the cases, or as high as 94 percent if explanations for ten of the false positives are accepted. Estimates at or above the 0.04 level (but below 0.08) were accurate in 94 percent of the relevant cases.

Id. at 25.

Problems with the scientific validity of the San Diego study include, but are not limited to, the following:

" Researchers did not observe or monitor the officers' administration of the field sobriety testing battery at any time during the study.

" PBTs were used to aid in the arrest decisions, potentially skewing the validity of the data.

" All of the officers in the study were retrained before the study, possibly affecting the study's objectivity or validity regarding normal officers in the field.

d. (§14.20) NHTSA SFST Protocol

A police officer must follow NHTSA's SFST protocol when administering field sobriety tests because the scientific validity of these tests, if any, is based entirely on accurate administration and scoring. Even assuming that NHTSA's protocol is standardized and that its validation studies are scientifically reliable, despite not having been reviewed by peers in the outside scientific community, NHTSA concedes that the validity of the tests is completely compromised when the testing protocol is not followed to the letter by the arresting officer.

Officers must learn to distinguish normal variations in the performance of sober subjects from the aberrations that constitute impairment clues. 1992 NHTSA Instructor Manual, 1-2. Further, officers administering SFSTs at roadside are expected not to deviate from the SFST administrative instructions described in the DWI Detection and Standardized Field Sobriety Testing course. 1995 NHTSA Instructor Manual, VII-4.

DWI defense practitioners facing an officer administering SFSTs that vary in any way from the NHTSA training should make extensive use of the following passages in the NHTSA Manuals, which it found necessary to emphasize in bold writing in the text:

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER
THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT'S PERFORMANCE
THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE

IF ANY OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

2002 NHTSA Student Manual, VIII-19.

Further, the NHTSA Instructor Manuals state: "THE SFSTs ARE NOT AT ALL FLEXIBLE. THEY MUST BE ADMINISTERED EACH TIME, EXACTLY AS OUTLINED IN THE COURSE." 1995 NHTSA Instructor Manual, at 10; 2002 NHTSA Instructor Manual, III-14.

See also the 1995 NHTSA Student Manual, which states: "[I]f any of the standardized elements of the test are changed, their validity will be threatened." 1995 NHTSA Student Manual, VIII 10; 1995 NHTSA Instructor Manual, VIII-8. Finally, the 1992 NHTSA Instructor Manual states: "[T]he administrative procedures are somewhat complicated and cannot be given from memory without considerable practice." 1992 NHTSA Instructor Manual, at 25.

Defense counsel should anticipate that the state will often attempt to counter the previous citations with the following from the 2002 NHTSA Instructor Manual:

The procedures outlined in this manual describe how the standardized field sobriety tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect [sic] on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.

2002 NHTSA Instructor Manual, Preface.

The context of this passage should be strongly emphasized. This passage is clearly referring to slight variances in the conditions in the field where the SFSTs are administered, not how they are administered. It does not refer to any variances in the administration or scoring of the SFSTs. NHTSA and caselaw cited throughout this text are clear that any variances in the administration or scoring of the SFSTs should render the tests invalid.

e. (§14.21) NHTSA SFST Purpose

The NHTSA SFST battery is made up of three divided attention tests. These tests allegedly "simulate the divided attention characteristics of driving" and "exercise the same mental and physical capabilities that a person needs to drive safely." 2002 NHTSA Student Manual, VII-2. The SFST battery is designed to require a subject to demonstrate two or more of the following capabilities simultaneously:

information processing;
short-term memory;
judgment and decision making;
balance;
steady, sure reactions;
clear vision;
small muscle control;
coordination of limbs.

Id. at VII-2-3.

f. (§14.22) Preliminary Advice to Clients Regarding Consenting to Field Sobriety Testing

Before discussing NHTSA's standardized field sobriety testing battery, preliminary advice to clients regarding whether they should ever consent to field sobriety testing should be discussed. Defense counsel confronted with a client requesting advice on whether to submit to an officer's request to perform field sobriety tests in Kansas City should consider the following when making this determination.

A subject's refusal to take field sobriety tests can be used as evidence of intoxication in Kansas City. State v. Myers, 940 S.W.2d 64, 65 (Mo. App. S.D. 1997); Hockman v. Dir. of Revenue, 103 S.W.3d 382 (Mo. App. W.D. 2003). But field sobriety tests are not mandatory. Chancellor v. Lohman, 984 S.W.2d 857, 858 (Mo. App. W.D. 1998); Terry v. Dir. of Revenue, 14 S.W.3d 722 (Mo. App. W.D. 2000).

The client should be advised to consider whether the client's performance on the test will be made to look worse than the refusal of these voluntary tests. It is the opinion of many knowledgeable defense attorneys around the country that SFSTs should always be refused because the client will likely be deemed to have failed them when the officer has enough indicia of alcohol consumption to request the client to submit to the tests under Phases I and II of the officer's training. This includes PBTs in the field, which are also voluntary and not mandatory in Kansas City. Justice v. Dir. of Revenue, 890 S.W.2d 728 (Mo. App. W.D. 1995) (a blood alcohol test administered with a portable breath test is not a "test" within meaning of implied consent statute). Note: The driver could be cited separately for a refusal in this context in some states.

A serious caveat should be noted when counsel is determining whether to give advice to refuse field sobriety testing. Should counsel choose to advise a client to refuse SFSTs, a PBT, or both, it is imperative that the client understand the limits and ramifications of that advice. Great care must be exercised with regard to the difference between a PBT and the chemical test the client will be asked to submit to under Kansas City's implied consent law, § 577.020, RSMo Supp. 2003, should the client be placed under arrest. Vague or ambiguous advice by counsel regarding refusal of SFSTs, a PBT, or both, could easily lead to the client having his or her license suspended for unknowingly or unintentionally triggering a refusal of a chemical test under the implied consent law after being placed under arrest. See:

" § 577.020, RSMo Supp. 2003;

" Baker v. Dir. of Revenue, 945 S.W.2d 589 (Mo. App. E.D. 1997) (two pre-arrest breath alcohol tests given to driver using portable breath analyzer to establish probable cause for arrest did not constitute "tests" for purposes of implied consent law; thus, driver's license could be revoked for his refusal to submit to breath test following his arrest);

" Justice, 890 S.W.2d at 728 (blood alcohol test administered with portable breath test is not a "test" within meaning of implied consent statute).

This issue is especially important where chemical breath tests after arrest are being more frequently administered at the scene of the stop immediately following a PBT. When an officer requests that a client submit to a PBT, and immediately thereafter requests consent to a chemical test at the scene, after arrest and after an implied-consent advisement, counsel's instructions must be unambiguous to avoid unintended consequences. Vague advice to a client in this context is malpractice. Chemical testing, implied consent, and refusals are dealt with in Chapters 1, 5, and 7 of this deskbook.

2. General Field Sobriety Testing Caselaw

a. (§14.23) Admissibility of "Scientific Evidence" of Field Sobriety Testing

To challenge the scientific evidence presented by the state in the form of standardized field sobriety testing, it is important to first review Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Before State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003), these two cases set forth the standards that were used by Kansas City courts for determining when a fact-finder at trial may consider whether a scientific technique or theory is sufficiently valid for admissibility in civil cases.
Before McDonagh, 123 S.W.3d 146, Kansas City state courts followed the Frye, 293 F. 1013, standard for determining whether a scientific technique is admissible. Kansas City courts appear to still follow Frye in criminal cases. See State v. Davis, 814 S.W.2d 593 (Mo. banc 1991); State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993), overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997). The Frye standard is whether a scientific principle is generally accepted in the general field in which it belongs.

The Daubert, 509 U.S. 579, standard is a work in progress and has not been used in Kansas City except in federal court. But Daubert is important to review because many courts around the country are determining the admissibility of field sobriety testing and other "scientific" evidence using this standard. In Daubert the Supreme Court took the opportunity to review Federal Rule of Evidence 702, which provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." State ex rel. Romley v. Fields, 35 P.3d 82, 87-88, n.5 (Ariz. Ct. App. 2001), provides an excellent summary of Daubert:

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that Frye's general acceptance requirement had been superseded by the 1975 enactment of Federal Rule of Evidence 702 and rejected Frye as the exclusive test for admitting expert scientific testimony in federal cases. Instead, the Court held that Federal Rule 702 imposes a special obligation upon a trial judge as an evidentiary "gatekeeper" to ensure that scientific evidence is not only relevant but reliable. Id. at 592-93, 597, 113 S.Ct. 2786. The reliability of scientific evidence is to be judged by its scientific validity. Id. at 589 n. 9, 113 S.Ct. 2786. Under Daubert, the general acceptance test is only one of several factors that a trial court may consider in determining the reliability of a particular scientific theory or technique. Id. at 592-94, 113 S.Ct. 2786. Six years later, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court held that Daubert's gatekeeping obligation is not limited to "scientific" testimony but also applies to "non-scientific" expert testimony. See id. at 147-51, 119 S.Ct. 1167.

5In response to Daubert and the many cases applying Daubert, including Kumho, Federal Rule of Evidence 702 was amended effective December 1, 2000, by adding three requirements for the admissibility of expert testimony. As amended, Rule 702 now reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
(Emphasis added.) We note that the "reliable application" requirement is a significant addition to Daubert ("The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." 509 U.S. at 595, 113 S.Ct. 2786.).

In McDonagh, 123 S.W.3d 146, the Supreme Court of Kansas City emphasized that the standards for admissibility of expert testimony in civil cases in Kansas City are exclusively set forth in § 490.065, now RSMo 2000, and Kansas City does not now follow either Frye, 293 F. 1013, or Daubert, 509 U.S. 579, in civil cases. Whether expert opinion testimony satisfies the requirements of § 490.065 is a matter of trial court discretion. Bailey v. Cameron Mut. Ins. Co., 122 S.W.3d 599, 603 (Mo. App. E.D. 2003); McGuire v. Seltsam, No. SC 85988 (Mo. banc July 1, 2004).

Section 490.065 provides:

1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
4. If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury due to the particular facts of the case.

The Supreme Court of Kansas City in McDonagh, 123 S.W.3d 146, decided the following issues related to the admission of expert testimony in Kansas City courts in reviewing § 490.065:

1. The only relevant standard for evaluating the admissibility of expert testimony in civil cases is section 490.065, R.S.Mo., reaffirming the Kansas City Supreme Court's prior decision in Lasky v. Union Electric Co., 936 S.W.2d 797 (Mo. banc 1997). . . .
2. The same rule applies in administrative cases as a fundamental rule of evidence.
3. This statutory standard is similar to Daubert v. Merrill [sic] Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence (FRE) 702 with the important addition that section 490.065, R.S.Mo., requires the expert to identify the relevant scientific community or field in which the data and facts are accepted. The trial court is then able to make an independent assessment of whether the methodology is otherwise reasonably reliable.
4. The relevant field is to be determined by the standards in the broader field in which the doctor has chosen to practice, not the individual doctor's specific area of practice.
5. Nothing in section 490.065, R.S.Mo., requires the expert's conclusions to be in conformity with the general medical consensus as that is only one of the factors the trial court will use to determine its reliability and admissibility.
6. Section 490.065, R.S.Mo., does not require the expert to use data from controlled studies to support his or her opinion, but rather allows for the fact that the expert may cite this information or other reasonably reliable data to provide the judge with a basis to determine the admissibility of the opinion testimony.

Joseph Callahan, Shaun P. Kenney, & Nancy R. Richards, Advanced Personal Injury Procedures in Kansas City for the Experienced Litigation Paralegal, 102-03 (Institute for Paralegal Education 2004).

As is discussed in §§14.27-14.30 below, other jurisdictions have limited or excluded the results of SFSTs as scientifically unreliable using criteria similar to § 490.065, which are more rigorous than Frye, 293 F. 1013.

While SFSTs, in particular the HGN test, were previously deemed admissible in Kansas City under Frye, 293 F. 1013-see Duffy v. Dir. of Revenue, 966 S.W.2d 372, 378-79 (Mo. App. W.D. 1998); Hill, 865 S.W.2d 702, overruled on other grounds by Carson, 941 S.W.2d 518-it is now clear that Kansas City no longer follows Frye in civil cases. As such, it appears the scientific reliability and admissibility of the SFSTs are ripe for challenge under the standards as set forth in § 490.065, newly interpreted by the Supreme Court in McDonagh, 123 S.W.3d 146.

b. Kansas City Field Sobriety Cases

(1) (§14.24) Admissibility of a Driver's Refusal of SFSTs

In State v. Myers, 940 S.W.2d 64, 65 (Mo. App. S.D. 1997), the court held that the defendant's refusal to perform SFSTs and to submit to breath testing was admissible as evidence of intoxication (citing State v. McCarty, 875 S.W.2d 622, 623-27 (Mo. App. S.D. 1994), § 577.010.1, now RSMo 2000, and § 577.041.1, now RSMo Supp. 2003). The Myers holding that refusals of SFSTs are admissible has been followed in Calicotte v. Director of Revenue, 20 S.W.3d 588, 593 (Mo. App. S.D. 2000), State v. Rose, 86 S.W.3d 90, 97 (Mo. App. W.D. 2002), and Edmisten v. Director of Revenue, 92 S.W.3d 270, 274 (Mo. App. W.D. 2002).

Defense counsel should carefully review these cases, along with the citations contained in them, being sure to make the appropriate objections at trial to preserve the issue for appeal. In McCarty, 875 S.W.2d 622, the court held that the defendant's refusal to submit to breath analysis was admissible as evidence of guilt in his prosecution for DWI, relying on §§ 577.010.1 and 577.041.1.

Section 577.041.1 provides in relevant part:

1. If a person under arrest, or who has been stopped pursuant to subdivision (2) or (3) of subsection 1 of section 577.020, refuses upon the request of the officer to submit to any test allowed pursuant to section 577.020, then none shall be given and evidence of the refusal shall be admissible in a proceeding pursuant to section 565.024 or 565.060, RSMo, or section 577.010 or 577.012. The request of the officer shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person's license shall be immediately revoked upon refusal to take the test. . . .

Section 577.020, RSMo Supp. 2003 (emphasis added), provides in relevant part:

1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood pursuant to the following circumstances.

. . .

2. The implied consent to submit to the chemical tests listed in subsection 1 of this section shall be limited to not more than two such tests arising from the same arrest, incident or charge.
3. Chemical analysis of the person's breath, blood, saliva, or urine to be considered valid pursuant to the provisions of sections 577.020 to 577.041 shall be performed according to methods approved by the state department of health and senior services by licensed medical personnel or by a person possessing a valid permit issued by the state department of health and senior services for this purpose.

In short, SFSTs are clearly not chemical tests, and §§ 577.010.1, 577.041.1, and 577.020 do not deal at all with standardized field sobriety testing-only with chemical testing. The court in Rose, 86 S.W.3d 90, acknowledged that "because field sobriety tests are not subject to regulations promulgated by the Department of Health, the HGN test does not enjoy the same standing as chemical testing of a driver's breath, blood, saliva, or urine." Rose, 86 S.W.3d at 101-02. Accordingly, the admission at trial of a driver's refusal to submit to standardized field sobriety testing should be vigorously challenged, with counsel taking the appropriate steps to preserve the issue for appeal.

(2) (§14.25) Brown v. Director of Revenue

In Brown v. Director of Revenue, 85 S.W.3d 1 (Mo. banc 2002), the Supreme Court of Kansas City held that improperly administered SFSTs must be disregarded, despite the Court upholding the revocation of the driver in the case on the basis of the remainder of the officer's observations. The Court noted in Brown:

The testimony of [the driver's] expert, Taylor, as well as [the officer's] own testimony, provided substantial evidence to support the trial court's determination that [the officer] improperly administered all three tests and that, therefore, the test results may be disregarded and not provide a basis for the probable cause determination.

Id. at 4.

See also Edmisten v. Director of Revenue, 92 S.W.3d 270, 274 (Mo. App. W.D. 2002), in which the court refers in dicta to the holding of Brown regarding the inadmissibility of improperly administered field sobriety tests. It should be emphasized that an expert witness was used in Brown.

(3) (§14.26) Kansas City Horizontal Gaze Nystagmus (HGN) Cases

In State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993), overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997), the court found that the HGN test meets the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), standard of admissibility. Hill, 865 S.W.2d at 704; See also State v. Myers, 940 S.W.2d 64 (Mo. App. S.D. 1997). Although the HGN test is admissible as circumstantial evidence of intoxication upon presentation of adequate foundation in a prosecution for a DWI offense, the test results of an HGN test are inadmissible to establish that a driver's BAC was at, above, or below a specific degree. Hill, 865 S.W.2d at 705; State v. Rose, 86 S.W.3d 90, 100 (Mo. App. W.D. 2002). To present an adequate foundation for the admission of the HGN test, the state must show "1) that the officer is adequately trained to administer such test and render an opinion; and 2) that the test was properly administered." See Rose, 86 S.W.3d at 98; Hill, 865 S.W.2d at 704; Duffy v. Dir. of Revenue, 966 S.W.2d 372, 378-79 (Mo. App. W.D. 1998).

Hill, 865 S.W.2d 702, provides that adequate training on administering and interpreting the HGN test requires a minimum of eight hours of police training on the HGN. Hill, 865 S.W.2d at 704. Further, for the HGN test to be properly administered, the state must show that the following standards were met:

(1) that the test be conducted by requiring a subject to follow an object such as a finger, pencil or pen with his eyes as the object is moved laterally along a horizontal plane to the periphery of the subject's vision, and (2) that the indicators be interpreted and scored, one eye at a time, as follows: (a) the person administering the test is to observe how smoothly a subject follows the object as it is moved to the periphery of the subject's vision. Jerking of the eyes rather than the ability to follow the object smoothly indicates the influence of alcohol; (b) the person administering the test is to observe whether or not a distinctive jerking occurs in the eyes at the maximum point of deviation when the eye moves to the far periphery of vision. Distinctive jerking is indicative of the influence of alcohol; and (c) the person administering the test is to observe the angle at which nystagmus occurs.
Id.
Hill was a criminal case, and it did not deal directly with the admissibility of the HGN test as support for an officer's determination of probable cause in the context of a civil administrative hearing. Duffy, 966 S.W.2d 372, is the civil equivalent of Hill in Kansas City. In Duffy the court held that the HGN test is admissible as a factor in the probable cause determination in the civil context provided that the officer administering the HGN test has the "ability to properly score and interpret the result." Duffy, 966 S.W.2d at 378. Duffy also restated the elements listed in Hill to lay a proper foundation for the admission of the HGN test for use in determining probable cause in the civil context. Id.

In Rose, 86 S.W.3d 90, the court addressed the driver's challenge to the officer's testimony at trial that: "Six scores, in my experience, they've always been above the legal limit [of] .10. I've never had one that scored six below." Rose, 86 S.W.3d at 99.

In Rose, 86 S.W.3d 90, the defense objected to lack of sufficient foundation being laid regarding the officer's ability to correlate the HGN results to the driver's specific BAC level, despite the officer's 20 hours of training in the HGN. The court in Rose held that, despite the fact that the officer "did not specifically state an opinion that [the driver's] BAC would have registered at or above .10%, his testimony created a remarkable inference that such was the case . . . ." Id. at 100. The court further held that the testimony should have been inadmissible because HGN test results are inadmissible to establish that a driver's BAC is at, above, or below a specific degree. Id.; Hill, 865 S.W.2d at 705.
Trial courts, attorneys, witnesses and other relevant parties in our justice system, are now on notice that, unless a foundation is laid that establishes the witness's ability to correlate an HGN score with a BAC level, such testimony is unacceptable and shall be inadmissible. For us to condone such a practice would be akin to opening Pandora's box and, consequently, would alleviate, if not eliminate, any need for law enforcement officers to administer a chemical analysis of a driver's blood, breath, urine, or saliva.
Rose, 86 S.W.3d at 102.
c. (§14.27) Other Jurisdictions' Field Sobriety Cases

Recent cases decided throughout the United States have consistently held that SFSTs must be administered exactly as specified in the NHTSA SFST training curriculum; otherwise, they are both inadmissible and inherently unreliable in court proceedings, or may only be admissible for limited purposes.

(1) (§14.28) State v. Homan

In State v. Homan, 732 N.E.2d 952 (Ohio 2000), the officer's failure to follow his NHTSA training in administering field sobriety exercises was a factor in determining the admissibility of the field sobriety tests. The Supreme Court of Ohio held that, unless the SFSTs are administered in strict compliance with NHTSA guidelines, the tests are too unreliable to be considered by the court in deciding whether the officer had probable cause to arrest. Further, when field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable. Homan, 732 N.E.2d at 955. The court did note, however, that "probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of these tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered or where, as here, the test results must be excluded for lack of strict compliance." Id. at 957.

(2) (§14.29) United States v. Horn

Like the court in State v. Homan, 732 N.E.2d 952 (Ohio 2000), the court in United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002), dealt with the issue of the extent to which SFSTs may be used under the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), criteria as circumstantial evidence for determining probable cause to arrest, for determining the alcohol impairment of the driver, or to estimate a specific BAC score based on the driver's performance on the SFSTs.

The Horn court first held that the results of "properly conducted SFSTs may be considered to determine whether probable cause exists to charge a driver with driving while intoxicated ("DWI") or under the influence of alcohol ("DUI")," Horn, 185 F. Supp. 2d at 532-33, and the driver conceded this point at trial. The prosecution also conceded that even properly administered SFSTs could not be used to establish a specific BAC level. Id.

The Horn court was then left to decide whether properly administered SFSTs could be used to provide circumstantial evidence of impairment in the driver. The defense's expert witnesses testified that the SFSTs were unreliable in accurately providing circumstantial evidence of alcohol impairment, and they were highly critical of the NHTSA field sobriety studies, which allegedly validated the test battery. The Horn court noted numerous flaws in NHTSA's methodology, and, in dicta, criticized the fact that none of NHTSA's validation studies had been subject to peer review. The court took particular note of Dr. Spurgeon Cole's critique of NHTSA's "validation" of SFSTs being used to provide circumstantial evidence of impairment as a result of alcohol consumption:

(1) 47% of the subjects tested in the 1977 NHTSA laboratory study who would have been arrested by the testing officers for driving while intoxicated (BAC of 0.10 or greater) actually had BACs below 0.10;

(2) in the 1981 Final Report, 32% of the participants in the lab study were incorrectly judged by the testing officers as having BACs of 0.10 or greater; and

(3) the accepted reliability coefficient for standardized clinical tests is .85 or higher, yet the reliability coefficients for the SFSTs, as reported in the NHTSA studies, ranged from .61 to .72 for the individual tests and .77 for individuals that were tested on two different occasions while dosed to the exact same BAC. More alarmingly, inter-rater reliability rates (where different officers score each subject) ranged from .34 to .60, with an over-all rate of .57.

Dr. Cole theorized that the SFSTs, particularly the WAT and OLS tests, required subjects to perform unfamiliar, unpracticed motions and noted that a very few miscues result in a conclusion that the subject failed and had a BAC in excess of 0.10. His hypothesis was that individuals could be classified as intoxicated/impaired as a result of unfamiliarity with the test, rather than actual BAC. He tested this hypothesis by videotaping twenty-one completely sober individuals performing either "normal-abilities tests" (such as reciting their addresses or phone numbers or walking in a normal manner) or the WAT and OLS tests. The results of the study were that 46% of the officers that viewed the videotape of the sober individuals performing the SFSTs rated the subjects as having had too much to drink, as compared to only 15% reaching this decision after seeing the videotape of the subjects performing the normal-abilities tests.

Horn, 185 F. Supp. 2d at 539-40 (citations omitted).

While the court noted that "[a] police officer trained and qualified to perform SFSTs may testify with respect to his or her observations of a subject's performance of these tests," and that the results are "admissible as circumstantial evidence that the defendant was driving while intoxicated or under the influence," the court specifically held that "the officer may not use value-added descriptive language to characterize the subject's performance of the SFSTs, such as saying that the subject 'failed the test' or 'exhibited' a certain number of 'standardized clues' during the test." Id. at 533.

(3) (§14.30) State v. Lasworth

In State v. Lasworth, 42 P.3d 844 (N.M. Ct. App. 2001), the court assessed whether the HGN test was admissible either as evidence of impairment or to show that a driver was above or below the statutory blood alcohol limit using the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), criteria.

In holding that the HGN test does not meet sufficient evidentiary standards to be admissible in a prosecution for driving under the influence, the court held inadmissible the testimony of the arresting officer that "he observed six cues, the maximum possible under the standardized HGN [S]FST," and that "based on his training and experience, the presence of all six HGN cues indicated Defendant was 'under the influence' of alcohol or another central nervous system depressant, an inhalant, or PCP at the time of the test," Lasworth, 42 P.3d at 846, as a proper foundation had not been presented by the state under Daubert, 509 U.S. 579.

To lay a proper foundation for the admission of this type of officer testimony, the state must show that the HGN test is "a scientifically valid means of discriminating between BACs below 0.08 percent and those at or above 0.08 percent" and "that a BAC at or above 0.08 percent correlates with diminishment of Defendant's mental or physical driving skills." Id. at 848.

Significantly, the Lasworth, 42 P.3d 844, court held that Dr. Marcelline Burns, the state's expert witness and one of the main proponents of NHTSA's field sobriety testing validation studies, was not qualified as an expert to testify whether the HGN test accurately measures the amount of alcohol allegedly consumed by a subject. Kansas City practitioners should note that Dr. Burns was the State of Kansas City's expert witness in State v. Hill, 865 S.W.2d 702 (Mo. App. W.D. 1993), overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997), where her testimony was admitted using Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), criteria.

3. NHTSA-Approved SFST Battery

a. (§14.31) HGN Test

NHTSA alleges that the HGN test is the most reliable field sobriety test when properly administered, 2002 NHTSA Student Manual, VII-5, being 77% reliable. 1995 NHTSA Instructor Manual, XV-4; 2000 NHTSA Instructor Manual, VIII-11-12; 2002 NHTSA Student Manual, VII-6, VIII-1. Gaze nystagmus occurs as the eyes move from the center position. NHTSA defines gaze nystagmus as an "involuntary jerking of the eyes." 2002 NHTSA Student Manual, VIII-3. Dr. Joseph Citron, M.D., a noted expert in SFSTs, defined gaze nystagmus as a "lack of fixation when someone looks to the side" at an NHTSA Instructor course in March 2004. See also FLEM K. WHITED & DONALD H. NICHOLS, DRINKING/DRIVING LITIGATION: CRIMINAL AND CIVIL § 17:8 (2nd ed. 2003) ("a jerking of the eyes that occurs as they gaze to the side").

There are three types of gaze nystagmus:

1. HGN-an involuntary jerking of the eyes as they gaze toward the side
2. Vertical gaze nystagmus (VGN)-an involuntary jerking of the eyes as they gaze upward
3. Resting nystagmus-an involuntary jerking of the eyes as they look straight ahead

It should be noted that nystagmus is a natural, normal phenomenon. 1992 NHTSA Student Manual, VIII-11; 1992 NHTSA Instructor Manual, VIII-8. Nystagmus is present in all people, and when gaze nystagmus is noticeable, it is exaggerated by the presence of a central nervous system depressant in the person's system. In other words, alcohol does not "cause" nystagmus, despite it being a depressant, and the HGN test is not alcohol-specific. 1992 NHTSA Student Manual, VIII-11; 2000 NHTSA Student Manual, VIII-8; 2000 NHTSA Instructor Manual, VIII-6; see also Troy McKinney, Challenging and Excluding HGN Tests, THE CHAMPION (April 2002). Note: The 2002 NHTSA Student Manual states that "alcohol and certain other drugs cause horizontal gaze nystagmus." 2002 NHTSA Student Manual, VIII-3. But the general scientific community, NHTSA's validation research, and the 1995 and 2000 versions of the NHTSA manuals indicate otherwise: "[A]lcohol and certain other drugs do not cause this phenomenon, they merely exaggerate or magnify it." 1995 NHTSA Student Manual, VIII 12; 2000 NHTSA Student Manual, VIII-3.

Nystagmus in its various forms is often exaggerated by nonalcoholic depressants or other factors besides alcohol intoxication. Whether the nystagmus is exaggerated by alcohol or another depressant, the involuntary jerking of the eyes becomes more pronounced as the amount of the depressant increases in the subject's bloodstream. 1995 NHTSA Instructor Manual, XV-1; 2000 NHTSA Instructor Manual, VIII-5. When alcohol, or any other depressant, is increased in the subject's bloodstream, nystagmus will become more readily noticeable the more alcohol, or other depressant, the subject consumes. NHTSA concedes that the HGN is not alcohol specific: "Nystagmus may be due to causes other than alcohol. These other causes include seizure medications and some other drugs. A large disparity between the performance of the right and left eye may indicate a medical condition." 2002 NHTSA Student Manual, VIII 8; 2002 NHTSA Instructor Manual, VIII-5, VIII 53.
Three to four percent of the general population has nystagmus at all times for reasons other than the consumption of alcohol. NHTSA concedes: "[A] small percentage of individuals may exhibit a natural jerkiness of their eyes that can appear similar to HGN," 1992 NHTSA Instructor Manual, VIII-54, "due to certain pathological disorders." 2002 NHTSA Instructor Manual, VIII 54. NHTSA also admits that nystagmus can be the result of brain damage or illness, or of unknown etiology. Marcelline Burns & Herbert Moskowitz, NHTSA, U.S. Department of Transportation, Psychophysical Tests for DWI Arrest, DOT HS 802-424 (June 1977).

Courts around the country have taken judicial notice of nonalcohol-related items that exaggerate the visibility of nystagmus in individuals. In Schultz v. State, 664 A.2d 60, 77 (Md. Ct. Spec. App. 1995), the court noted many possible causes of HGN that are unrelated to alcohol:

(1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) [sic] extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes . . .; (38) antihistamine use.

Schultz, 664 A.2d at 77. Defense counsel should take note if any of these nonalcoholic causes of horizontal nystagmus are present in the client and use them accordingly.

There are also 46 types of nystagmus in individuals, separate from horizontal nystagmus:

(1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced, somatosensory); (4) Associated (induced, Stransky's); (5) Audio kinetic (induced); (6) Bartel's (induced); (7) Brun's; (8) Centripetal; (9) Cervical (neck torsion, vestibular-basilar artery insufficiency); (10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital (fixation, hereditary); (12) Convergence; (13) Convergence-evoked; (14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced (barbiturate, bow tie, induced); (17) Epileptic (ictal); (18) Flash induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in); (20) Horizontal; (21) Induced (provoked); (22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent (monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid; (27) Miner's (occupational); (28) Muscle-Paretic (myasthenic); (29) Optokinetic (induced, optomotor, panoramic, railway, sigma); (30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic); (31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating; (33) Physiologic (end-point, fatigue); (34) Pursuit After-induced; (35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38) Reflex (Baer's); (39) See-Saw; (40) Somatosensory; (41) Spontaneous; (42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat; (46) Vertical; (47) Vestibular (ageotropic, geotropic, Bechterew's, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.

L.F. Dell'Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 CURRENT NEURO-OPTHALMOLOGY 147 (1989); see also FLEM K. WHITED & DONALD H. NICHOLS, DRINKING LITIGATION: CRIMINAL AND CIVIL § 17:1-17:3 (2nd ed. 2003).

The conditions a subject is facing in the field while attempting to perform the HGN test must not be overlooked. Visual or other distractions may impede the test. 1995 NHTSA Instructor Manual, VIII-66; 2000 NHTSA Instructor Manual, VIII-56. Wind, dust, or other eye irritants may interfere with performance on the HGN test. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor Manual, VIII-56; 2002 NHTSA Student Manual, VIII-15. The officer must keep the subject away from the traffic passing in close proximity. 2002 NHTSA Student Manual, VIII-15. It should also be emphasized that an HGN test may not be administered to someone who is lying down. 2002 NHTSA Instructor Manual, VIII 7. This is especially important to note in accident cases.

Finally, the officer must always face the subject away from rotating lights or flashing or strobe lights while performing
the HGN test to avoid stimulation of artificial jerking of the eyes from the light. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor Manual, VIII-56; 2002 NHTSA Student Manual, VIII-15. The jerking of the eyes stimulated by
this strobe effect is referred to as optokinetic nystagmus. At a recent standardized field sobriety testing seminar, this author observed noted impaired driving consultants, Lance Platt and Troy Walden, of Walden, Platt & Associates, create the effect of optokinetic nystagmus by simulating the rotating lights of a police vehicle with a disco ball. The subject had consumed no alcohol. Each time the subject focused on the flashing lights behind the person administering the test, as opposed to focusing on the stimulus right in front of him, the subject's eyes began to noticeably jerk in a very pronounced manner. Defense counsel should thoroughly review material on optokinetic nystagmus when it can be determined that a driver was facing flashing lights while performing the HGN test. Note: Before the 2002 edition of the NHTSA Student Manual, the manuals did not mention rotating lights or traffic passing in close proximity. They only stated that flashing or strobe lights may interfere with the HGN test.

A person administering the HGN test uses a stimulus in a series of passes in front of the subject's eyes, looking for an involuntary jerking as they gaze toward the side as a sign of alcohol intoxication. "The stimulus may be the tip of a pen or penlight, an eraser on a pencil or [the officer's] finger tip, whichever contrasts with the background." 2002 NHTSA Student Manual, VII-5; 2002 Instructor Manual, VII-7. It is best to use a stimulus that has a contrasting tip or focal point. 2002 NHTSA Instructor Manual, VIII 15. The HGN test measures this involuntary jerking of the eyes with three clues:

1. Lack of smooth pursuit
2. Distinct nystagmus at maximum deviation
3. Onset of nystagmus prior to 45 degrees

Each of these three clues are distinct steps that must be tested for by the officer administering the HGN test for it to be valid. The maximum number of clues that may appear in any one eye is three. 2002 NHTSA Instructor Manual, VIII-14. The maximum total number of clues for any subject is six, i.e., the three clues above, in each eye. 2002 NHTSA Student Manual, VII-6; 2002 NHTSA Instructor Manual, VIII-14. Any four observed clues in the eyes of the subject will result in a failed HGN test. 2002 NHTSA Student Manual, VII-6. NHTSA's original validation research indicates it is likely that a subject's BAC is above 0.10% when four or more clues are present for the HGN. NHTSA alleges that this test is 77% accurate when four or more clues are present. 2002 NHTSA Student Manual, VII-6, VIII-1. See Parrish v. Dir. of Revenue, 11 S.W.3d 652 (Mo. App. E.D.1999) (score of four or more on the HGN test, which gives one point for eye movement indicative of alcohol influence for each of three tests for each eye, is an indication that a subject is intoxicated).

For the first clue, lack of smooth pursuit, the officer is determining whether the subject's eyes can smoothly follow a moving stimulus or whether they jerk or bounce. 2002 NHTSA