OTHER DUI/DWI RESOURCES

4. (§14.10) Officer Reliance on “Flushed or Red Face” or “Bloodshot Eyes” as Basis of Reasonable Suspicion/Probable Cause in Making a Missouri DUI / DWI / BAC or Other Drunk Driving Arrest

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.

5. (§14.11) Conclusion/NHTSA Impairment Clue Chart in a Missouri DUI / DWI / BAC or Other Drunk Driving Case

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.

C. (§14.12) Phase III—Pre-Arrest Screening of the Driver in a Missouri DUI / DWI / BAC or Other Drunk Driving Case

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:  

Horizontal gaze nystagmus (HGN) test

Walk-and-turn WAT test

One-leg stand OLS 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 in Missouri DUI / DWI / BAC or Other Drunk Driving Cases

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 National Highway Traffic Safety Administration 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—NHTSA 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. The One Leg Stand OLS test

2. Finger-to-nose test

3. Finger count test

4. The Walk and Turn WAT test

5. Tracing / drawing / writing test

6. Both the VGN vertical gaze nystagmus and HGN 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) NHTSA Standardized Field Sobriety Testing SFST Validation Studies-- 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%.Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864 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 Pyschophysical 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 Pyschophysical 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. Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864 (March 1981) 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). 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) NHTSA Standardized Field Sobriety Testing SFST Validation Studies-- 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 of the Standardized Field Sobriety Test (SFST) Battery (Nov. 1995), p. 3. 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 Missouri , 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.” A Colorado Validation of the Standardized Field Sobriety Test (SFST) Battery, 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) NHTSA Standardized Field Sobriety Testing SFST Validation Studies--Florida (Field)

The Florida validation study used the same basic methodology as the Colorado study—see Marcelline Burns & Ellen W. Anderson,A Colorado Validation 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 of the Standardized Field Sobriety Test (S.F.S.T. Battery (1997) at p. 8.

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. A Florida Validation of the Standardized Field Sobriety Test (S.F.S.T. Battery, 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.” A Florida Validation of the Standardized Field Sobriety Test (S.F.S.T. Battery, 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) NHTSA Standardized Field Sobriety Testing SFST Validation Studies--San Diego (Field)

In 1997, another SFST validation study was conducted utilizing officers from San Diego, California. Jack W. Stuster & M arcelline 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). 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 Standardized Field Sobriety Testing 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 Standardized Field Sobriety Testing 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 Standardized Field Sobriety Testing in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

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 Missouri 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 Missouri. State v. Myers, 940 S.W.2d 64, 65 (Mo. App. S.D. 1997); Hockman v. Director 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. Director 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 Missouri . 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 Missouri’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. Director of Revenue, 945 S.W.2d 589 (Mo. App. E.D. 1997) (two pre-arrest breath alcohol tests given to driver using portable breath test 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 in Missouri DUI / DWI / BAC or Other Drunk Driving Cases    

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 Missouri 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, Missouri state courts followed the Frye, 293 F. 1013, standard for determining whether a scientific technique is admissible. Missouri 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 Missouri 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 Fields, 35 P.3d 82, 87–88, n.5 (Ariz. Ct. App. 2001), provides an excellent summary of Daubert:

In Daubert, 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.

In 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 Missouri emphasized that the standards for admissibility of expert testimony in civil cases in Missouri are exclusively set forth in § 490.065, now RSMo 2000, and Missouri 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 Missouri in McDonagh, 123 S.W.3d 146, decided the following issues related to the admission of expert testimony in Missouri 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 Missouri 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 Missouri 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 Missouri under Frye, 293 F. 1013—see Duffy v. Director 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 Missouri 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. Missouri Standardized Field Sobriety Testing SFST Cases

(1) (§14.24) Admissibility of a Driver’s Refusal of Standardized Field Sobriety Tests SFSTs in a Missouri DUI / DWI / BAC or other drunk driving case

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 test 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 Missouri 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) Missouri Standardized Field Sobriety Testing SFST- 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. Uniited 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 Missouri. 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. Rose; 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’ Standardized Field Sobriety Testing SFST 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:

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;

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,

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. Missouri practitioners should note that Dr. Burns was the State of Missouri’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) The Horizontal Gaze Nystagmus 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 (2 nd ed. 2003) (“a jerking of the eyes that occurs as they gaze to the side”).

There are three types of gaze nystagmus:

Horizontal Gaze Nystagmus HGN—an involuntary jerking of the eyes as they gaze toward the side

Vertical Gaze Nystagmus VGN—an involuntary jerking of the eyes as they gaze upward

Resting nystagmus—an involuntary jerking of the eyes as they look straight ahead

It should be noted that nystagmus (the jerking of the eyes) 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 (2 nd 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:

Lack of Smooth Pursuit

Distinct Nystagmus at Maximum Deviation

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 Student Manual, VIII-5. For the second clue, distinct nystagmus at maximum deviation, the stimulus is moved to the extreme side of each of the subject’s eye’s vision (“maximum deviation”), where the stimulus is held to observe any distinct jerking. Id. The third clue, onset of nystagmus prior to 45 degrees, measures the angle at which the eye begins jerking to determine alcohol impairment. Id.

(1) (§14.32) The Horizontal Gaze Nystagmus HGN Test Pretest and Instructions

Before checking for the three clues of the HGNtest, the officer must conduct a pretest to determine if the subject is an eligible candidate for the test and give the subject proper instructions on how the test will be administered. First, the officer must instruct the subject to remove glasses, if any. 2002 NHTSA Student Manual, VIII-6, VIII-14; 2002 NHTSA Instructor Manual, VII-7, VIII-12. Glasses impede the subject’s peripheral vision. 2002 NHTSA Instructor Manual, VIII-12. NHTSA originally instructed the officer to inquire about and note if contact lenses are being worn by the subject. 1995 NHTSA Instructor Manual, VIII-13, 15. The 2000 and subsequent NHTSA manuals do not mention contact lenses.

The officer should verbally instruct the person to stand feet together and hands at sides. 1995 NHTSA Instructor Manual, VIII-17; 2000 NHTSA Instructor Manual, VIII-13. Further, subjects should be instructed that their eyes are going to be checked, that they should keep their head still and follow the moving stimulus with their eyes only, and that they should keep following the stimulus with their eyes until they are told to stop. 2002 NHTSA Student Manual, VIII-6. The officer should ask the person if they understand the instructions and is not to continue with administering the test until the person indicates the understanding of what is required. As mentioned, the HGNtest may not be properly administered to someone who is lying down. 2002 NHTSA Instructor Manual, VIII-7. By the very nature of the instructions for the test, the subject must be standing or the test is invalId.

For the pretest, the officer must also check for equal tracking in both eyes—i.e., do the eyes follow an object together?—and pupil size before checking for the three clues to make sure the subject is an eligible candidate for the HGN test. 2002 NHTSA Student Manual, VIII-5.

If the eyes do not track together, it could indicate a medical disorder, injury, or blindness, Id. at VIII-6, and the subject is not an eligible candidate for the HGN test.

If the pupils are different sizes, it is a strong indication of a head injury, also precluding the subject from being a candidate for the test. Id.

For each pass of the stimulus during the test, the officer is to “[p]osition the stimulus approximately 12–15 inches from the suspect’s nose and slightly above eye level.” 2002 NHTSA Student Manual, VIII-6, X-3; 2002 NHTSA Instructor Manual, VII-7, VIII-12.

For the pretest equal-tracking passes, the officer is to rapidly move the stimulus from the center of the subject’s face to the far left, to the far right, and back to center again. 2002 NHTSA Instructor Manual, VIII-12. The equal-tracking pass or passes should take at least two seconds to administer.

(2) (§14.33) The Horizontal Gaze Nystagmus HGN Test-- Impairment Clue #1-- Lack of Smooth Pursuit

To be NHTSA compliant, the officer must check each of the subject’s eyes at least two times for lack of smooth pursuit. 2002 NHTSA Student Manual, VIII-7. The officer must begin by checking the subject’s left eye, 2002 NHTSA Instructor Manual, VII-7; VIII-13, moving the stimulus from the center of the subject’s face to the officer’s right. The stimulus is to be moved smoothly, 2002 NHTSA Instructor Manual, VIII-17, at a speed that requires two seconds to take the subject’s left eye out as far as it will go with the stimulus without the head moving. 2002 NHTSA Instructor Manual, VIII-17–18. Once the stimulus is taken out as far to the officer’s right as it will go, the stimulus should be returned again to center, also in a smooth motion at a speed that requires two seconds to return the subject’s left eye to center. The stimulus should be moved at a speed of “20 degrees per second,” i.e., two seconds out from center to side, and two seconds back from side to center. 1992 NHTSA Instructor Manual, VIII-22; 1995 NHTSA Instructor Manual, VIII-23–24; 2000 NHTSA Instructor Manual, VIII-18; 2002 NHTSA Student Manual VIII-7.

The officer should then repeat the same process in reverse for the right eye: moving the stimulus smoothly from the center of the subject’s face to the officer’s left at a speed that requires two seconds to take the subject’s right eye out as far as it will go with the stimulus without the head moving, then returning again to center in a smooth motion and at a speed that requires two seconds to return the subject’s right eye to center. 2002 NHTSA Student Manual VIII-7. The stimulus should be moved at a speed of “20 degrees per second” for the right eye, i.e., two seconds out from center to side, and two seconds back from side to center. 1992 NHTSA Instructor Manual, VIII-22; 1995 NHTSA Instructor Manual, VIII-23–24; 2000 NHTSA Instructor Manual, VIII-18; 2002 NHTSA Student Manual VIII-7.

This entire process must be repeated for each eye for the first clue of lack of smooth pursuit. 1995 NHTSA Instructor Manual, VIII-21, 23; 2002 NHTSA Student Manual, VIII-7. If a jerking is noticed while testing for this clue on either pass of either eye, a clue is scored for that eye. Because each motion for this clue requires two seconds for testing, the officer must take at least 16 seconds to complete this portion of the HGN test.

Some common mistakes for testing for lack of smooth pursuit include:

holding the stimulus too close or too far away from the subject;

not holding the stimulus slightly above eye level throughout the passes;

moving the stimulus too quickly or too slowly;

not using a smooth motion, which may induce artificial jerking of the subject’s eyes;

failing to move the stimulus far enough to the side; or

arcing the path of the stimulus upward or downward during any pass, causing the stimulus to vary from “slightly above eye level.”

1992 NHTSA Instructor Manual, VIII-24; 1995 NHTSA Instructor Manual, VIII-6, X-3; 2000 NHTSA Instructor Manual, VIII-20–21; 2002 NHTSA Instructor Manual, VIII-20.

(3) (§14.34) The Horizontal Gaze Nystagmus HGN Test-- Impairment Clue #2--Distinct Nystagmus at Maximum Deviation

To be NHTSA compliant, the officer must also check each of the subject’s eyes at least two times for distinct nystagmus at maximum deviation. 2002 NHTSA Student Manual, VIII-7. The officer should first check the subject’s left eye, moving the stimulus from the center of the subject’s face to the officer’s extreme right, holding the subject’s left eye at maximum deviation, i.e., as far to the side as possible with no white showing in the corner of subject’s eyeball. Id.

The officer must hold the eyeball at maximum deviation for a minimum of four seconds, observing the eyeball for distinct jerking, i.e., both distinct and obvious. 2002 NHTSA Instructor Manual, VIII-22. It is vital that the stimulus be held at maximum deviation for the required time because many sober people will exhibit nystagmus at maximum deviation if the stimulus is held for less than four seconds. 2000 NHTSA Instructor Manual, VIII-23, XV-1; 2002 NHTSA Instructor Manual, VIII-22. See also1992 NHTSA Instructor Manual, VIII-25 (“You cannot simply hold the eye to the side for an instant and expect to observe distinct nystagmus.”). It is also important to note that the subject’s eye cannot be held too long at maximum deviation because fatigue nystagmus will be evident in many sober individuals if the eye is held at maximum deviation for more than 30 seconds. 2002 NHTSA Student Manual, VIII-7.

The officer should repeat the same procedure on the right eye and then check for the clue a second time on both eyes. Id.

Testing each eye for the second clue of distinct nystagmus at maximum deviation requires that the officer must take 16 seconds, at the very least, by actually holding the stimulus at maximum deviation for the full 16 seconds (4 seconds, 2 times, each eye). Defense counsel should note that, because the NHTSA protocol repeatedly instructs the officer to not vary the speed of the stimulus, because any variance in the speed at which the stimulus is moved could artificially create the appearance of nystagmus, time should also be factored in each time the officer moves the stimulus to maximum deviation in addition to the 16 seconds required to hold the stimulus at maximum deviation for a valid test.

Some common mistakes an officer makes when testing for nystagmus at maximum deviation include:

holding the stimulus too close or too far away from the subject;

moving the stimulus too quickly or too slowly;

not using a smooth motion, which may induce artificial jerking of the subject’s eyes;

failing to move the stimulus far enough to the side to bring the eye to maximum deviation;

“some white still showing” while attempting to place the eye at maximum deviation with the stimulus, meaning the stimulus is likely not actually at maximum deviation; and

not holding the eye at maximum deviation for at least four seconds.

1992 NHTSA Instructor Manual, VIII-27; 1995 NHTSA Instructor Manual, VIII-25, 29; 2000 NHTSA Instructor Manual, VIII-20–21, 24; 2002 NHTSA Instructor Manual, VIII-20.

(4) (§14.35) The Horizontal Gaze Nystagmus HGN Test-- Impairment Clue #3-- Onset of Nystagmus Prior to 45 Degrees

The angle of onset of nystagmus is the point at which the eye is first seen jerking. 2002 NHTSA Instructor Manual, VIII-24. “Generally speaking, the higher the BAC, the sooner the jerking will start as the eye moves toward the side.” Id.

To be NHTSA compliant, the officer must check each of the subject’s eyes at least two times for the third clue of onset of nystagmus prior to 45 degrees. 2002 NHTSA Student Manual, VIII-7. The officer must begin by checking the subject’s left eye, moving the stimulus from the center of the subject’s face to the officer’s right. Id. The stimulus is to be moved smoothly, at a speed that requires four seconds to take the stimulus from center to the edge of the subject’s left shoulder. Id.

The officer is to watch for any jerking at any time during the motion between center and the edge of the subject’s shoulder, stopping the stimulus immediately if jerking is observed and holding the stimulus in place to verify that the jerking continues . Id; 2002 NHTSA Instructor Manual, VIII-27. See also 1992 NHTSA Instructor Manual, VIII-29 (“it is necessary to move the stimulus slowly to identify the point at which the eye begins to jerk.”). “If the suspect’s eyes start jerking before they reach 45 degrees” (edge of shoulder), “check to see that some white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you either have taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.” 2002 NHTSA Student Manual, VIII-7 ; 2002 NHTSA Instructor Manual, VIII-27.    

The officer should repeat the same procedure on the right eye and then check for the clue a second time on both eyes. 2002 NHTSA Student Manual, VIII-7.

As with testing for distinct nystagmus at maximum deviation, testing each eye for onset of nystagmus prior to 45 degrees requires that the officer take 16 seconds at the very least to complete this portion of the HGN test, by actually taking 4 seconds 2 times for each of the subject’s 2 eyes. This does not take into account any time when the officer is specifically instructed to “stop and verify that the jerking continues” when the jerking of the subject’s eyeballs is observed, if any. In other words, a test for this clue that only takes 16 seconds is one in which no nystagmus has been properly observed, even if it allegedly exists. Defense counsel needs to examine the officer carefully regarding the officer’s observations and factor in the appropriate time according to what the officer allegedly observed. When nystagmus was allegedly observed and the appropriate stop was not made by the officer to observe the jerking, the testing of this clue is not NHTSA compliant, and there is not a valid test.

Some common mistakes officers make while testing for onset of nystagmus prior to 45 degrees are:

moving the stimulus too quickly by not taking the full four seconds to move the stimulus from the center to the subject’s shoulder;

not stopping the stimulus to verify any observed jerking in the eye;

failing to check for white in the corner of the eye on the side of the eye closest to the ear to verify that the stimulus has not been taken past 45 degrees;

failing to check alignment with the shoulder; and

stopping the stimulus on any pass of this clue short of 45 degrees.

2000 NHTSA Instructor Manual, VIII-32; 2002 NHTSA Instructor Manual, VIII-31.

(5) (§14.36) Vertical Gaze Nystagmus (VGN)

After the HGN test is administered, officers often make a pass or passes of the subject’s eyes with a stimulus checking for vertical gaze nystagmus (VGN), which is an involuntary jerking as the eyes gaze upward, 2002 NHTSA Instructor Manual, VII-8, often as a result of the impairment of certain drugs other than alcohol, such as phencyclidine (PCP) or high doses of central nervous system depressants or inhalants, 1992 NHTSA Instructor Manual, VIII-19; 2002 NHTSA Student Manual, VIII-4, 8 (“D.I.P.”—depressants, inhalants, PCP).

This VGN test is often administered for officer safety if the subject appears erratic or dangerous. It should first be noted that, while vertical nystagmus can be present because of extremely high doses of alcohol, 2002 NHTSA Instructor Manual, VIII-9, VGN was not examined in the original research that led to the alleged validation of the SFSTs. 2002 NHTSA Instructor Manual, VII-8; VIII-32. Further, when VGN is present and HGN is not, it could be because of a medical condition. 2002 NHTSA Instructor Manual, VIII-10. It should also be emphasized that any pass or passes testing for VGN are not a part of the HGN test and cannot be counted as passes testing for the three clues the officer is looking for during the HGN test.

NHTSA’s procedures for administering a pass or passes testing for VGN are:

1. Position the stimulus horizontally, about 12–15 inches in front of the subject’s nose.

2. Instruct the subject to hold the head still, and follow the object with the eyes only.

3. Raise the object until the subject’s eyes are elevated as far as possible.

4. Hold for approximately four seconds.

5. Watch closely for evidence of jerking.

2002 NHTSA Student Manual, VIII-8; 2002 NHTSA Instructor Manual, VIII-32–33.

When attempting to invalidate the administration of an HGN test while examining an officer, defense counsel should ask the officer if a VGN test was conducted. Officers will often testify that certain passes were allegedly testing for two clues at once when the number of total passes has been challenged as invalId. If the officer indicates that a VGN test was performed, counsel should commit the officer to how many passes were conducted for VGN and deduct those passes from the passes allegedly testing for HGN.

b. (§14.37) Standardized Field Sobriety Testing-- The Walk-and-Turn (WAT) Test

As a preliminary matter, it should be noted that NHTSA acknowledges that the test criteria for the WAT is not necessarily valid for all individuals. 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), at 4; 1995 NHTSA Instructor Manual, VIII-63; 2000 NHTSA Instructor Manual, VIII-52–53, 59.

The WAT test should be conducted on a reasonably dry, hard, level, nonslippery surface. Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 5; 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-34. Note: The 1995 edition of the NHTSA Manuals did not use the word “reasonably” in describing the surface to be used for the WAT test, only stating that “reasonably safe conditions” should be utilized. 1995 NHTSA Student Manual, VIII-21. If these conditions cannot be met roadside, the subject should be asked to perform the WAT test elsewhere, Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 5; 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36, or only to perform the HGN test, 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36. NHTSA’s validation studies also showed that certain individuals had difficulty performing the WAT test when sober, including people:

over 65 years of age;

over 50 pounds overweight;

with back, leg, or middle ear problems; and

with high-heeled shoes over two inches in height.

Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 5; 2002 NHTSA Instructor Manual, VIII-52.

People who cannot see out of one eye or who have monocular vision or poor depth perception also had an extremely difficult time with the WAT test in the validation studies—even when sober. Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 4; 1992 NHTSA Student Manual, VIII-18; 1995 NHTSA Student Manual, VIII-21.

The 1992 NHTSA Manuals originally indicated that the WAT test is not valid for subjects age 60 and over, 1992 NHTSA Instructor Manual, VIII-54; 1992 NHTSA Student Manual VIII-18, while the 1995 NHTSA Manuals indicate that the WAT test is not valid for subjects age 65 and over, and these subjects should only be requested to perform the HGN test, 1995 NHTSA Student Manual, VIII-21; 1995 NHTSA Instructor Manual, VIII-52. Interestingly, the 2000 NHTSA Student Manual also states that the WAT test is not valid for subjects age 65 and over, and these subjects should only be requested to perform the HGN test, but the 2000 NHTSA Instructor Manual only notes that the WAT test is difficult for persons 65 years of age or older. 2000 NHTSA Instructor Manual, VIII-45.     The 1992 NHTSA Manuals indicate that the WAT test is not valid for people more than 50 pounds overweight. 1992 NHTSA Instructor Manual, VIII-54; 1992 NHTSA Student Manual VIII-8. The 1995 and 2000 NHTSA Manuals only indicate that “weight” may interfere with performance on the WAT test. 1995 NHTSA Instructor Manual, VIII-69; 2000 NHTSA Instructor Manual, VIII-59. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. 1992 NHTSA Student Manual, VIII-18; 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-34.

The original WAT test validation research required a designated, actual, straight line, which the officer could manufacture, 1992 NHTSA Student Manual, VIII-19; 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36, but which was required to be “clearly visible,” 1992 NHTSA Student Manual, VIII-18. The 2000 and subsequent manuals indicate that an officer may now use an imaginary line, 2002 NHTSA Instructor Manual, VIII-35, despite the validation research indicating otherwise. But “a visible straight line should exist, if possible.” 1992 NHTSA Instructor Manual, VIII-36.    

Test conditions for the WAT test require sufficient room for subjects to safely complete nine heel-to-toe steps in a line and return. 2002 NHTSA Instructor Manual, VIII-34. The initial research also found that it is critical that there be enough light for the subject to use a frame of reference for balance; otherwise, sober subjects as well as nonsober subjects would likely have difficulty with the test. Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 4. Any reference to the subject being able to see to perform the test has been omitted in the NHTSA manuals from the original research in the validation studies.

It is important to note that the officer is specifically instructed to observe the subject performing the WAT test from a distance and to limit movement that may distract the subject during the test. The officer should “remain motionless, three to four feet away. Too close or excessive motion will make it difficult even if sober.” 1992 NHTSA Student Manual, VIII-18. See also 2000 NHTSA Instructor Manual, VIII-12 (“Officer must limit movements which would distract suspect during the test”).

(1) (§14.38) Two Stages of the Walk and Turn WAT Test

The WAT test is a divided-attention test that divides the subject’s attention between mental and physical tasks. Before administering the WAT test, the officer should ask if the subject has any physical problems or disabilities. 2002 NHTSA Instructor Manual, VII-5. There are two stages to the WAT test: the Instructions Stage and the Walking Stage. 2002 NHTSA Student Manual, VII-3.


(a) (§14.39) Instructions Stage of the Walk and Turn WAT Test

The objective of the Instructions Stage is to divide the subject’s attention by having the subject stand with feet in a heel-to-toe position, keeping both arms at the sides, while listening to instructions. 2002 NHTSA Student Manual, VII-3.

It is important to note that the officer is specifically trained to physically demonstrate each individual instruction given to the subject for the WAT test and is to make sure that the subject understands the instructions before being told to begin performing the test. 2002 NHTSA Student Manual, VIII-9. The 2002 NHTSA Student Manual lists the following instructions the officer must give to the subject in the Instructions Stage before beginning the test:

[H]ave the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:

“Place your left foot on the line” (real or imaginary).

Demonstrate.

“Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.”

Demonstrate.

“Place your arms down at your sides.”

Demonstrate.

“Keep this position until I tell you to begin. Do not start to walk until told to do so.”

“Do you understand the instructions so far?”

(Make sure suspect indicates understanding.)

Id. at VIII-9.

It should be noted that officers are specifically trained to avoid delays in completing the instructions to avoid placing the subject for too long a time in the unnatural position of the Instructions Stage: “It simply isn’t fair or meaningful to require the suspect to maintain the instruction position for a prolonged period before conducting the walking stage of the test.” 1995 NHTSA Instructor Manual, VIII-47. The 1992 NHTSA Student Manual also instructs, “it is important to avoid delays.” 1992 NHTSA Student Manual, VIII-11.

(b) (§14.40) Walking Stage of the Walk and Turn WAT Test

The second stage of the WAT test is the Walking Stage. The objective of the Walking Stage is that the subject must take “nine heel-to-toe steps, turn in a prescribed manner, and take nine heel-to-toe steps back, while counting the steps out loud, while watching their feet.” 2002 NHTSA Student Manual, VII-3. To successfully complete the turn after the first nine steps in the Walking Stage, the subject must keep his or her front foot on the line and turn with a series of small steps with the other foot. The turn should always be to the left if the subject has taken the correct number of steps. 2002 NHTSA Student Manual, VIII-9.

It should be noted that, if the subject properly assumed the instructional stance in the Instructions Stage, with the left foot placed in front of the right, the subject will begin walking in the Walking Stage on the leftfoot. The specific instructions the officer must give for the Walking Stage of the WAT test are:

Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:

“When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.”

(Demonstrate 3 heel-to-toe steps.)

“When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this.”

(Demonstrate).

“While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.”

“Once you start walking, don’t stop until you have completed the test.”

“Do you understand the instructions?”

(Make sure suspect understands.)

“Begin, and count your first step from the heel-to-toe position as ‘One.’”

Id.

(2) (§14.41) Scoring of the Walk and Turn WAT Test

There are eight clues used to score the subject’s performance of the WAT test. 2002 NHTSA Student Manual, VII-4, VIII-10–11. The driver will be deemed to have failed the test if two or more of the eight clues are observed by the officer or if the driver cannot complete the test. Id. at VIII-11. According to NHTSA, the WAT test is 68% accurate in determining alcohol intoxication above a 0.10 BAC when two or more clues are present in the WAT test. Id.

The first two clues are in the Instructions Stage:

1. Cannot balance during instructions

2. Starts before instructions are finished

Id. at VIII-10.

The remaining six clues are in the Walking Stage:

1. Stops while walking

2. Does not touch heel-to-toe

3. Steps off the line

4. Uses arms to balance

5. Improper turn

6. Incorrect number of steps

Id. at VIII-10–11.

Cannot balance during instructions.

The officer may properly mark this clue against the driver only if the driver cannot balance during the instructions to the degree of breaking the heel-to-toe stance, i.e., the feet must completely break apart. Id. at VIII-10; 2002 NHTSA Instructor Manual, VIII-40.

NHTSA specifically instructs that this clue must not be recorded “simply because the subject raises arms or wobbles slightly.” 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-49; 2000 NHTSA Instructor Manual, VIII-42.

Starts before the instructions are finished.

The driver must actually start performing the test before the instructions are finished for the officer to properly mark this clue. 2002 NHTSA Instructor Manual, VIII-41. The officer is specifically instructed: “Do not record this clue if the suspect sways or uses the arms to balance but maintains the heel-to-toe position” during instructions. 2002 NHTSA Student Manual, VIII-10.

This clue also cannot be recorded unless a subject was specifically told not to start walking until directed to do so. 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-49; 2000 NHTSA Instructor Manual, VIII-42.

Stops while walking.

The driver must actually pause for several seconds for this clue to be properly recorded against the driver, and the officer is instructed, “Do not record this clue if the suspect is merely walking slowly.” 2002 NHTSA Student Manual, VIII-10; 2000 NHTSA Student Manual, VIII-11.

It should be noted that the 1995 edition of the NHTSA Student Manual stated that this clue should be scored by the officer when the subject “stops to steady self,” 1995 NHTSA Student Manual, VIII-20, but this language was omitted in the 2000 NHTSA Student Manual.

Does not touch heel-to-toe.

The subject’s feet do not have to be tight to one another every step of the test and must leave a space greater than one-half inch between the heel and toe on any step for the officer to properly record this clue. 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-50; 2000 NHTSA Instructor Manual, VIII-43; 2002 NHTSA Student Manual, VIII-10; 2002 NHTSA Instructor Manual, VIII-41.

Steps off the line.

The subject must step so that one foot is completely off the line for the officer to properly record this clue. 2002 NHTSA Student Manual, VIII-10.

As discussed in §14.37 above, the original WAT test validation research required a designated, actual, straight line, which the officer could manufacture, for the subject to use in walking, 1992 NHTSA Student Manual, VIII-19; 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36, but the “straight line must be clearly visible,” 1992 NHTSA Student Manual, VIII-18.

The 2000 and subsequent manuals indicate that an officer may now use an imaginary line, 2002 NHTSA Instructor Manual, VIII-36, despite the validation research indicating otherwise. But “a visible straight line should exist, if possible.” 1992 NHTSA Instructor Manual, VIII-36.

Uses arms to balance.

This clue may be properly recorded if the driver “raises one or both arms more than 6 inches from the sides in order to maintain balance.” 2002 NHTSA Student Manual, at VIII-11.

In other words, it is permissible for the driver to use the arms to balance as long as one or both of the arms are not raised more than six inches at any time while performing the test, 2002 NHTSA Instructor Manual, VIII-41.

Improper turn.

This clue may be properly recorded if the driver does not turn as demonstrated by the officer, i.e., if the “suspect removes the front foot from the line while turning” by spinning or pivoting around. 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-42.

The driver must perform “several small steps in turn.” 1992 NHTSA Student Manual, VIII-16.

Incorrect number of steps.

This clue may be properly recorded if the driver “takes more or less than nine steps in either direction.” 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-42.

But mistakes in the verbal counting of steps by the subject do not justify recording this clue against the driver. 1995 NHTSA Instructor Manual, VIII-51; 2000 NHTSA Instructor Manual, VIII-44.

NHTSA protocol instructs the officer to record all eight clues against a driver who cannot perform the test using the following three criteria:

steps off the line three or more times;

is in danger of falling;

cannot do the test.

2002 NHTSA Student Manual, VII-4, VIII-11; 2002 NHTSA Instructor Manual, VIII-42.

The test is also to be terminated if the driver cannot safely complete the instructed tasks. Id. at 43. If the driver does not step off the line less than three times, the test is to be continued from the point of the alleged violation, not from the beginning. Id. at 42.

c. (§14.42) Standardized Field Sobriety Testing-- The One-leg stand (OLS) Test

Like the WAT test, the OLS test is a divided-attention test that divides the subject’s attention between mental and physical tasks and forces the subject to hold 1 foot 6 inches off the ground for 30 seconds to complete the test successfully.

As a preliminary matter, the OLS “should be conducted on a reasonably dry, hard, level, nonslippery surface,” and the suspect’s safety should be considered at all times. 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-45.

If these conditions cannot be met roadside, the subject should be asked to perform the OLS test elsewhere or only to perform the HGN test. 1995 NHTSA Instructor Manual, VIII-56; 2000 NHTSA Instructor Manual, VIII-47; 2002 NHTSA Instructor Manual, VIII-45. Wind and weather conditions may interfere with the subject’s performance on the OLS test. 1995 NHTSA Instructor Manual, VIII-73–74.

NHTSA’s validation studies indicated that certain individuals had difficulty performing the OLS test when sober, including people:

over 65 years of age;

over 50 pounds overweight;

with back, leg, or middle ear problems; and

with high-heeled shoes over two inches in height.

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); 1995 NHTSA Student Manual, VIII-21, 25; 1995 NHTSA Instructor Manual, VIII-61, 63, 73-74; 2000 NHTSA Student Manual, VIII-14; 2000 NHTSA Instructor Manual, VIII-53; 2002 NHTSA Instructor Manual, VIII-53.

NHTSA validation research indicated that there must be adequate lighting for the subject to have a frame of reference to perform the OLS test. If the subject cannot see or become oriented to a visible point of reference, the test is too difficult to perform even sober, Development and Field Test of Pyschophysical Tests for DWI Arrest, DOT HS-805-864, at 5, and the test is invalId.

People with leg injuries or inner-ear disorders may have difficulty with the OLS test, or with any other balance test. 1995 NHTSA Student Manual, VIII-25; 1995 NHTSA Instructor Manual, VIII-63; 2000 NHTSA Instructor Manual, VIII-53.

The officer is also precluded from performing distracting movements while the subject is performing the test. The officer is to observe from at least three feet away and remain motionless. 1995 NHTSA Student Manual, VIII-23–24; 2000 NHTSA Student Manual, VIII-14. The 2002 NHTSA Student Manual instructs only to observe from a safe distance. 2002 NHTSA Student Manual, VIII-12.

(1) (§14.43) Two Stages of The One Leg Stand Test

Like the WAT test, the OLS test is a divided-attention test that divides the subject’s attention between mental and physical tasks. There are two stages to the OLS test: the Instructions Stage and the Balance and Counting Stage. 2002 NHTSA Student Manual, VII-4–5, VIII-12.

(a) (§14.44) Instructions Stage of The One Leg Stand (OLS) Test

The objective of the Instructions Stage is to divide the subject’s attention by having the subject stand with feet together, keeping both arms at the sides, while listening to instructions. Id. It is important to note that the officer is specifically trained to physically demonstrate each individual instruction given to the subject for the OLS test and is to make sure the subject understands the instructions before being told to begin performing the test. Id. The 2002 NHTSA Student Manual lists the following instructions the officer must give in the Instructions Stage before the subject begins the test:

Initiate the test by giving the following verbal instructions, accompanied by demonstrations.

"Please stand with your feet together and your arms down at the sides, like this.”

(Demonstrate)

“Do not start to perform the test until I tell you to do so.”

“Do you understand the instructions so far?”

(Make sure suspect indicates understanding.)

2002 NHTSA Student Manual, VIII-12; 2002 NHTSA Instructor Manual, VIII-48–50.

Placing the feet together in the instructions phase means placing the heels together with the feet at slight angles.

(b) (§14.45) Balance and Counting Stage of The One Leg Stand (OLS) Test

The second stage of the OLS test is the Balance and Counting Stage. The objective of this stage is:

[T]he subject must raise one leg, either leg, approximately six inches off the ground, toes pointed out, keeping both legs straight.

While looking at the elevated foot, count out loud in the following manner: “one thousand and one”, “one thousand and two”, “one thousand and three”

until told to stop.

2002 NHTSA Student Manual, VII-4.

The test is concluded after the officer has finished timing the 30 seconds the subject is to perform the test. 2002 NHTSA Student Manual, VIII-12.

Note: Before the 2000 edition of the NHTSA Manuals, the subject was instructed to count out loud “for thirty seconds.” 1995 NHTSA Student Manual, VIII-23.    

The specific instructions the officer must give to the driver for the Balance and Counting Stage of the OLS test are:

Explain the test requirements, using the following verbal instructions, accompanied by demonstrations.

“When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.”

(Demonstrate one-leg stance.)

“You must keep both legs straight, arms at your side.”

“While holding that position, count out loud in the following manner: ‘one thousand and one, one thousand and two, one thousand and three,’ until told to stop.”

“Keep your arms at your sides at all times and keep watching the raised foot.”

“Do you understand?”

(Make sure suspect indicates understanding.)

“Go ahead and perform the test.”

2002 NHTSA Student Manual, VIII-12; 2002 NHTSA Instructor Manual, VIII-47–48.

It is important to note that a driver cannot be required to hold a foot 6 inches off the ground more than 30 seconds, and if the driver is required to do so, the OLS test is invalid. 2002 NHTSA Student Manual, VIII-12.

(2) (§14.46) Scoring of The One Leg Stand (OLS) Test

There are four clues used to score the subject’s performance of the OLS test. 2002 NHTSA Student Manual, VII-5, VIII-13. The driver will be deemed to have failed the OLS test if the officer observes two or more of the four clues or if the driver cannot complete the test. Id. at VIII-13.

According to NHTSA, the OLS test is 65% accurate in determining alcohol intoxication above a 0.10 BAC when two or more clues are present in the OLS test. 2002 NHTSA Student Manual, VIII-13.

The four clues of the OLS test are (PUSH):

1. Puts foot down

2. Uses arms for balance

3. Sways while balancing

4. Hops

2002 NHTSA Student Manual, VIII-13; 2002 NHTSA Instructor Manual, VIII-48–50.

Puts foot down.

The subject must put the foot down one or more times during the 30 seconds for this clue to be validly recorded. Id.

Uses arms for balance.

As with the WAT test, this clue may be properly recorded if the driver raises one or both arms more than six inches from his or her sides in order to maintain balance, Id.

In other words, it is permissible for the driver to use arms to balance as long as one or both of the arms are not raised more than six inches at any time while performing the test. Id.    

Sways while balancing.

There must be a distinct side-to-side or back-and-forth motion while the driver is attempting to maintain the one-leg stand position for the officer to properly record this clue. Id.

Hops.

This clue may be properly recorded if the driver resorts to hopping while attempting to maintain the one-leg stand position. Id.  

"Cannot Complete the Test"   

NHTSA protocol instructs the officer to record all four clues of the OLS test against a driver who puts a foot down three or more times or who cannot complete the test. Id.

For each time the driver puts a foot down before the third time, the officer is to “give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground.” Id.

The test is also to be terminated if the driver cannot safely complete the instructed tasks. Id.

Keeping Track of Time

Perhaps the most important item in a “close” OLS test is the consideration of time.

The driver is to be tested only for 30 seconds for a valid OLS test, and the officer is to always independently time the 30 seconds. 2002 NHTSA Student Manual, VIII-12.

The test must be discontinued after 30 seconds. Id. at VIII-12—13; 2002 NHTSA Instructor Manual, VII-6. When the officer relies on the subject’s counting to measure 30 seconds, the OLS test is invalId. 2002 NHTSA Student Manual, VIII-12.    

"Point out that research has demonstrated that many impaired suspects are able to maintain one leg balance for as long as 25 seconds, but relatively few can do so for 30 seconds. NOTE: Therefore officer should keep track of the actual time the suspect stands on one leg. When 30 seconds have passed, stop the test. Point out that the subject should be timed while performing this test.

2002 NHTSA Instructor Manual, VII-6.

4. (§14.47) Portable Breath Tests (PBTs); PBT Law in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

As discussed in §14.12 above, Phase III, Pre-Arrest Screening, “has two major evidence gathering tasks,” 2002 NHTSA Student Manual, VII-1, which form the basis of the officer’s decision to arrest. The second evidence-gathering task is for the officer to perform a portable breath test a (PBT) when allowed by state law.

It is important to note that NHTSA protocol lists standardized field sobriety testing as the first evidence-gathering task of Phase III and performing a PBT on the subject as the second. Id. NHTSA instructs the officer that a PBT “can help to corroborate all other evidence and to confirm your judgment as to whether the suspect is impaired.” Id. at VII-2 (emphasis added).

Implicit in this instruction is the notion that an officer may not begin an investigation “fishing” with a PBT without first following NHTSA protocol regarding Phases I and II, when applicable, and the standardized field sobriety testing of Phase III before administering the PBT on the subject. NHTSA further provides that “[t]he PBT result is only one of many factors the officer considers in determining whether the suspect should be arrested for DWI. It should never be the sole basis for a DWI arrest.” Id. at VII-7.

In short, a PBT is properly used when the officer seeks to corroborate his or her initial observations of the subject, but it is not a proper substitute for the other factors that are to be used in making an arrest decision—it is only one of several factors to be employed.    

When an officer attempts to perform a PBT on a subject moments after the stop is made, before conducting Phases I and II, when applicable, and before administering the SFST battery under Phase III, or when an officer uses a PBT as the sole basis of arresting a subject for DWI, counsel should seek suppression for lack of probable cause.

In Missouri, a blood alcohol test administered with a PBT is not a “test” within the meaning of Implied Consent statute, § 577.020, RSMo Supp. 2003. Justice v. Dir. of Revenue, 890 S.W.2d 728 (Mo. App. W.D. 1995). A PBT is admissible as evidence of probable cause to arrest in Missouri , but it is not admissible as evidence of the subject’s blood alcohol content. Section 577.021, RSMo Supp. 2003, provides:     Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.

See State v. Duncan, 27 S.W.3d 486, 488 (Mo. App. E.D. 2000) (allowing the results of PBT into evidence was reversible error in prosecution for DWI when officer testified that subject “failed” the PBT test; § 577.021 “represents a legislative conclusion that the portable breath test is too unreliable to be used to prove intoxication.”).

See also:

State v. Stottlemyre, 35 S.W.3d 854 (Mo. App. W.D. 2001) (foundation does not need to be established to admit PBT “results”);

State v. Hanway, 973 S.W.2d 892 (Mo. App. W.D. 1998) (trial court erred in permitting municipal police officer to testify that he had given defendant a breath test and had arrested him based on breath test and other field sobriety tests given; statute governing breath tests only authorized highway patrol officers to perform test, not municipal or county police officers);

State v. Buckler, 988 S.W.2d 565 (Mo. App. W.D. 1999) (PBT relied on to establish intoxication).

Because § 577.021 provides that a PBT may not be used as “evidence of blood alcohol content,” defense counsel should be creative and seek suppression of officer testimony that the suspect tested positive for alcohol or that the presence of alcohol was detected on the subject’s breath. See State v. Deshaw, 404 N.W.2d 156 ( Iowa 1987) (cited by the Missouri Court of Appeals in Duncan, 27 S.W.3d 486):    

The unreliability inherent in the [PBT] test goes to both aspects of the test; not only may the test register an inaccurate numerical percentage of alcohol present in the breath, it may also be inaccurate as to the presence or absence of any alcohol at all. In this case, the unreliable evidence of the presence of alcohol was introduced to show defendant had been drinking. We fail to find any suggestion in the statute that the term “result” should be restricted to render inadmissible only the numerical percentage of alcohol present. Consequently, we conclude that the showing of positive on the test, indicating the presence of some alcohol, is a “result” of the testing which may not be used as evidence in court.

Deshaw, 404 N.W.2d at 158.

5. (§14.48) NHTSA Phase III-- The Officer's Arrest Decision in a Missouri DUI / DWI /BAC or Other Drunk Driving Cases

The final step in Phase III is the officer’s decision whether to arrest based on all observations in Phases I, II, and III. NHTSA instructs the officer:

Your decision involves a careful review of each of the observations you have made. Conduct a “mental summary” of the evidence collected during vehicle in motion, personal contact and pre-arrest screening. If all of the evidence, taken together, establishes probable cause to believe that DWI has been committed, you should arrest the suspect for DWI. 2002 NHTSA Student Manual, VII-9.

6. (§14.49) Fifth Amendment Considerations for Standardized Field Sobriety Testing; Are Standardized Field Sobriety Tests Testimonial in Nature in a Missouri DUI / DWI /BAC or Other Drunk Driving Cases?

The Fifth Amendment’s prohibition against compelled self-incrimination has often been rejected as a valid basis for excluding physical, scientific evidence. Schmerber v. Cal., 384 U.S. 757 (1966) (prohibition against self-incrimination is testimonial in nature and offers no protection against items such as fingerprinting, being photographed, appearing in court, assuming a particular stance, walking, or making a particular gesture). But the Fifth Amendment should not be overlooked as a basis for challenging any physical, scientific evidence that is objectively testimonial in nature. The evidence may also have been obtained as the fruit of a Fifth Amendment violation in a case. See Wong Sun v. United States, 371 U.S. 471 (1963).

To determine whether the Fifth Amendment is applicable, a court must determine whether the defendant was in “custody” and whether the responses of the defendant were “testimonial.”

In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court ruled that “custody,” for the purposes of the Fifth Amendment, occurs when “a reasonable person” would no longer feel free to leave the officer’s presence.

Although in Berkemer, a drunk driving case, this occurred after field sobriety tests at the moment of the official arrest, the moment when the arrest occurs will not always be when “custody” begins. 

Defense counsel must strive to show that custody of the driver occurred before the administration of SFSTs, if any. When the driver can be shown to be legally detained or in custody, it can be argued in many states that no field tests can be given without the proper Miranda v. Arizona, 384 U.S. 436 (1966), advisements first being provided. See State v. O'Donnell, 484 S.E.2d 313 (Ga. Ct. App. 1997).

See also Price v. State, 498 S.E.2d 262 (Ga. 1998) (defendant was “in custody” and thus entitled to Miranda warnings before administration of field sobriety tests when officer informed defendant that license check showed she had suspended license, that officer had strong impression that she was intoxicated based on smell of alcohol and on her having to steady herself against car to keep from falling, and that officer would take her to jail for driving under influence regardless of whether she performed field sobriety tests).

When the performance of a field sobriety test is testimonial in nature, i.e., the subject’s response could not be elicited without proper Miranda advisements and a waiver, the test can be argued inadmissible. Pa. v. Muniz, 496 U.S. 582 (1990) (subject’s response to the question of the date of his sixth birthday was inadmissible because it constituted testimonial evidence and, therefore, could not be elicited without proper Miranda advisements and a waiver; subject’s counting at officer’s request during field sobriety tests qualified as a response to “custodial interrogation” within meaning of Miranda).

It should be noted, however, that this interpretation of the law has fallen out of favor.

For an excellent summary of the law of numerous jurisdictions on this issue, see Vanhouton v. Commonwealth, 676 N.E.2d 460, 466–67, n.12 (Mass. 1997), which provides: The recitation of the alphabet from A to Z is an exercise, which when utilized as a field sobriety test with a suspect asked to perform the test in his or her own language, is not subject to the privilege contained in art.12. The fact that a motorist must use his or her voice to perform the test does not necessarily make the response testimonial any more so than would the giving of a voice exemplar. The alphabet constitutes a set of generic linguistic symbols that the average person masters early in life and learns to recite by rote. The alphabet cannot be fabricated or guessed at, so a person reciting it is not faced with the dilemma of deciding between a true or false answer. As such, the recitation of the alphabet lacks inherent communicative value because it does not convey knowledge of any fact specific to the person being questioned. In a road-side drunk driving inquiry by a police officer, the recitation determines only whether the motorist’s memory is impaired and whether the motorist has sufficient mental coordination to perform a rudimentary psychological exercise. In this respect, the test is directed at the reflexive functioning of the motorist’s mental processes, and it provides a basis for ascertaining the extent to which those processes may be affected by the motorist’s consumption of alcohol. Further, the fact that the motorist might slur his or her speech while reciting the alphabet, thereby indicating intoxication, is not significant. “The physical inability to articulate words in a clear manner due to ‘the lack of muscular coordination of . . . tongue and mouth’ . . . is not itself a testimonial component of [the suspect’s] responses to [the investigating police officer’s] . . . questions.” Pa. v. Muniz, supra at 590–91, 110 S.Ct. at 2644–2645. “Certainly, [the defendant’s] inability to recite the alphabet. . . incriminated him. Intoxication increases reaction time and reduces speed of motor responses, including those of auditory discrimination and judgment. . . . The [test] did not require the [defendant] to disclose his knowledge of his intoxication. [The test combined with the physical coordination tests] elicited tangible evidence of the . . . condition of the [defendant’s] body. The responses were no more testimonial or communicative than a voice exemplar . . . or a blood sample . . .” (citations omitted). Edwards v. Bray, 688 F.2d 91, 92 (10th Cir.1982).

The same conclusion has been reached by the vast majority of other jurisdictions that have addressed the issue. The decisions hold that a straightforward alphabet recitation test (or comparable counting exercises), performed during a roadside investigation of suspected drunk driving, are outside the protective sphere of the privilege against self-incrimination because there is no disclosure of subjective knowledge or thought processes in a constitutionally prohibited sense. See State v. Superior Court, 154 Ariz. 275, 742 P.2d 286 (Ct.App.1987); Oxholm v. District of Columbia, 464 A.2d 113, 114 (D.C.1983); Lankford v. State, 204 Ga.App. 405, 406–407, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S.Ct. 972, 122 L.Ed.2d 127 (1993); People v. Bugbee, 201 Ill.App.3d 952, 959, 147 Ill.Dec. 381, 559 N.E.2d 554 (1990); State v. Maze, 16 Kan.App.2d 527, 532, 825 P.2d 1169 (1992); People v. Burhans, 166 Mich.App. 758, 762–763, 421 N.W.2d 285 (1988) (counting test); State v. Tompson, 237 Mont. 384, 387, 773 P.2d 722 (1989); State v. Zummach, 467 N.W.2d 745, 746 (N.D.1991); State v.Medenbach, 48 Or.App. 133, 616 P.2d 543 (1980); State v. Meek, 444 N.W.2d 48, 50 (S.D.1989).

Only two States have concluded that an alphabet recitation test constitutes evidence protected by the privilege against self- incrimination. See Allred v. State, 622 So.2d 984, 987 (Fla.1993) (under Traylor v. State, 596 So.2d 957 [Fla.1992], alphabet recitation test is “[i]nterrogation[:] . . . express questions . . . that a reasonable person would conclude are designed to lead to an incriminating response”); Vickers v. State, 878 S.W.2d 329, 330 (Tex.Ct.App.1994) (alphabet recitation test showed defendant’s “mind was confused”; test should have been suppressed because it was “testimonial in nature”). These conclusions have recently been called into question. See State v. Taylor, 648 So.2d 701, 704 (Fla.1995) (field sobriety tests do not violate any Fourth Amendment rights); State v. Burns, 661 So.2d 842, 845 (Fla.Dist.Ct.App.1995) (reviewing Traylor, supra, and concluding that, under Florida Constitution, routine traffic stops are not custodial and therefore Miranda warnings are not required before administering roadside sobriety tests, including alphabet and counting tests); Vester v. State, 916 S.W.2d 708, 712–713 (Tex.Ct.App.1996) (spoken roadside sobriety tests are nontestimonial; such tests do not involve an express or implied assertion of fact or belief).

7. (§14.50) Nonstandardized Field Sobriety Tests

The most common nonstandardized field sobriety tests are: 

The Finger-To-Nose Test

The Finger-Count Test

The Hand-Pat Test

The Coin-Pickup Test

Variations of The Alphabet Test

Variations of the Counting Test

The Tracing / Drawing / Writing Test

The Rhomberg Balance Test

As discussed in §14.13 above, before NHTSA’s validation of the three-test SFST battery, field sobriety tests varied widely in police departments across the country. The nonstandardized field sobriety tests employed by law enforcement at the time of the validation studies were rejected for lack of reliability in accurately determining whether a subject was alcohol impaired.    

While NHTSA instructs that an officer may wish to employ the “additional techniques” of the alphabet, countdown, and finger-count test when interviewing the driver in Phase II, 2002 NHTSA Student Manual, VI-5, its validation studies showed the nonstandardized field sobriety tests to be inaccurate in determining alcohol impairment, and NHTSA states flatly in its student manual: THESE TECHNIQUES DO NOT REPLACE THE SFST. Id. at VI-4.

When an officer employs a field sobriety test on a subject that is not standardized, i.e., when there are no set administrative procedures or scoring protocol, or if the test is any test other than the three tests validated by NHTSA as the most accurate in determining alcohol impairment, defense counsel should seek suppression or a limiting instruction.    

Nonstandardized field sobriety tests are admissible in Missouri to show probable cause to arrest, Tuggle v. Dir. of Revenue, 727 S.W.2d 168, 169 (Mo. App. W.D. 1987), and scientific foundation is not necessary under these circumstances, Eggleston v. Lohman, 954 S.W.2d 696 (Mo. App. W.D. 1997); Kranz v. Director of Revenue, 764 S.W.2d 508 (Mo. App. 1989). But when the tests are offered as scientific proof of sobriety from which an inference of guilt or innocence can be drawn, they are inadmissible. Nuyt v. Dir. of Revenue, 814 S.W.2d 690, 692 ( Mo. App. 1991).

Missouri courts have also emphasized the extent to which the officer solely relies on nonstandardized tests in the probable cause determination. It appears that the more indicia of intoxication an officer has for probable cause separate from the nonstandardized test, the more likely it is that the test will be admissible. See Eggleston v. Lohman, 954 S.W.2d at 697.     [The officer’s] training and experience caused him to look for the indicators exhibited by [the driver]. No scientific basis was necessary for admissibility of [the officer’s] testimony.

When the results of [the officer’s] finger-to-nose test are considered with the illegal turn [the driver] made, the smell of alcohol on [the driver’s] breath, and [the driver’s] slurred speech, [the officer] had reasonable grounds to believe that [the driver] was driving a motor vehicle while intoxicated.     Id.

Counsel should be familiar with the nonstandardized tests described in §§14.51–14.57 below because they are still frequently employed by law enforcement in Missouri. Because none of these tests are standardized, large variations in instructions and scoring protocol may be encountered across jurisdictions. 

a. (§14.51) Non-Standardized Field Sobriety Tests-- Finger-to-Nose Test

For the finger-to-nose test, the subject is asked to:

stand with his or her feet together;

tilt his or her head back; and

touch the tip of his or her right hand to the tip of the nose, repeating the process with the left hand.

When confronted with this test, counsel should carefully examine the officer regarding the instructions that were provided to the driver. Often, the test will be deemed failed when the subject did not touch the tip of the fingers to the tip of the nose, despite the officer not specifically instructing the subject to do so.
    
b. (§14.52) Non-Standardized Field Sobriety Tests-- Finger-Count Test  

For the Finger-Count test, the subject is to:

touch the index finger to the thumb on the same hand and count “one”;

touch the middle finger to the thumb and count “two”;

touch the ring finger to the thumb and count “three”; and

touch the pinkie to the thumb and count “four.”

The subject is then to repeat the process starting where he or she left off, touching the thumb to the pinkie and counting “four” and counting backward to “one” touching the index finger to the thumb.

The driver will usually be asked to perform the test at least three times.

When confronted with this test, counsel should carefully examine the officer regarding the instructions that were provided to the driver. Often, the test will be deemed failed when the subject did not count out loud or when the driver did not speed up each time through the test, despite not being told to do so.

c. (§14.53) Non-Standardized Field Sobriety Tests-- The Hand-Pat Test

For the hand-pat test:

the subject is asked to place one hand palm up, pat the palm with the other hand,

and to continue alternating patting between the back of the hand and palm of the other hand in a quick motion while counting.

Not counting, chopping, clapping, or patting too slowly are common grounds for the officer to claim that the subject failed the test.

Counsel should pay close attention to the instructions given to the subject and the officer’s demonstration of the test, if any.

d. (§14.54) Non-Standardized Field Sobriety Tests-- The Alphabet Test

The NHTSA Manual indicates that, for the alphabet test in the Phase II interview, the officer should ask the subject to recite the alphabet, asking the subject to begin on a letter other than A and end on a letter other than Z. 2002 NHTSA Student Manual, VI-5. See the discussion in §14.49 above regarding this test being “testimonial” in nature.

e. (§14.55) Non-Standardized Field Sobriety Tests-- The Reverse Counting / Countdown Test

The reverse counting/countdown test requires a subject to count out loud 15 or more numbers in reverse sequence. The NHTSA Manual gives as an example for this test: “[Y]ou might request a driver to, ‘Count out loud backwards, starting with the number 68 and ending with the number 53.’” 2002 NHTSA Student Manual, VI-5. The Manual also instructs the officer not to use a starting or ending number that ends with “5” or “0.” Id. at 6.

f. (§14.56) Non-Standardized Field Sobriety Tests-- The Tracing / Writing / Drawing Test

There are numerous variations of the tracing / writing / drawing test, many of which call for some variation of drawing a circle within a square and the subject signing his or her name somewhere inside the symbols.

NHTSA has determined this test mostly unreliable in determining blood alcohol concentration above 0.10. Marcelline Burns & Herbert Moskowitz, NHTSA, U.S. Department of Transportation, Psychophysical Tests for DWI Arrest, DOT HS-802 424 (June 1977).

g. (§14.57) Non-Standardized Field Sobriety Tests-- The Rhomberg Balance Test

For the Rhomberg Balance Test, the subject is instructed to stand with feet together and eyes closed. The officer is to look for swaying and lack of balance. While utilized by the National Park Service, this test lacks reliability because numerous individuals who are not intoxicated have difficulty with this test. Flem K. Whited & Donald H. Nichols, Drinking/Driving Litigation: Criminal and Civil § 17:4 (2 nd ed. 2003) (citing Waligren & Barry, Actions of Alcohol (1970)); see also Marcelline Burns & Herbert Moskowitz, NHTSA, U.S. Department of Transportation, Psychophysical Tests for DWI Arrest, DOT HS-802-424 (June 1977). The WAT test and OLS test are modified Rhomberg tests. Drinking/Driving Litigation: Criminal and Civil §  17:13.

III. Admission of NHTSA Manuals Into Evidence in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

A. (§14.58) Generally    

While there is no question that many publications are hearsay and not admissible for the truth of the matters stated in them because witnesses could be called to testify, the National Highway Traffic Safety Administration’s (NHTSA) Manuals are admissible under exceptions to the hearsay rule.

B. (§14.59) Certified Copies  of NHTSA Training Manuals   

When NHTSA publications are certified, they are admissible under § 490.220, RSMo 2000. While Missouri has no exception to the hearsay rule for public records in general, § 490.220 provides a codified exception to the hearsay rule for official records of the United States and other states:

All records and exemplifications of office books, kept in any public office of the United States , or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.

As this Court has observed, section 490.220 is one of a number of statutes that eliminate the foundational requirements of authentication, best evidence, and hearsay for the admission of certain public documents. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 ( Mo. banc 1993). Referring to section 490.220, in particular, this Court then concluded that “[s]o long as the requirements of the statute are met and the records are relevant, they are admissible.” Id.    

Rodriquez v. Suzuki Motor Corp., 996 S.W.2d 47, 55 ( Mo. banc 1999).     The Court in Suzuki further held that NHTSA reports clearly meet the requirements of § 490.220 because they are published in the Federal Register.

They are not only the records of the office books of the NHTSA, but also of the Office of the Federal Register, both of which entities are public offices of the United States. The second requirement of the statute—that the reports be authenticated by the seal of the government agency in question—is satisfied by the fact that the Federal Register is published under seal of the National Archives and Records Administration, which authenticates the Federal Register as the official serial publication established under the Federal Register Act. See 44 U.S.C. § 1501 et seq. (1994); 1 C.F.R. § 2.3 (1998).    

Id. at 56.

As long as it is established that the officer was trained according to NHTSA’s protocol, NHTSA manuals are admissible under Suzuki, 996 S.W.2d 47, and § 490.220. 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 Missouri has been teaching the NHTSA-based course of driving while intoxicated detection and standardized field sobriety testing since 1984. Accordingly, law enforcement in Missouri is governed by its protocol.

C. (§14.60) Noncertified Copies of NHTSA Training Manuals
    
Often, the arresting officer will produce a NHTSA field sobriety manual at trial; if the copy is not certified, it may be admitted into evidence through the trade journal exception to the hearsay rule with proper foundation. The foundation requirements to admit a noncertified NHTSA manual under the trade journal exception are set forth in Stuart v. Dir. of Revenue, 761 S.W.2d 234 (Mo. App. S.D. 1988).

If there is evidence that the publication contains information of everyday professional and business need, intended to be circulated publicly and consulted by interested persons, tested by their use and found by experience to be trustworthy and actually relied upon in the work or occupation, such publications are admissible under the trade journal exception to the hearsay rule.    

Id. at 238.

IV. Cross-Examination of Arresting Office in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

A. (§14.61) Visiting the Scene of the Stop

For effective cross-examination, it is vital for the defense to personally visit the scene of the arrest, taking photographs that can be used to impeach the testimony of the officer. Defense attorneys who take as truth, without verification, a police report that indicates the field sobriety tests were conducted on a dry, nonslippery, smooth, level surface, free of debris, with adequate lighting, without actually viewing and photographing the scene, do so at their own peril. Once counsel begins employing this technique, it is staggering the number of standardized field sobriety tests (SFSTs) that have been found to have been conducted on a steep grade, with heavy traffic in close proximity, on gravel, or in complete darkness, despite a police report indicating pristine conditions. This is a tremendous help in lowering the officer’s credibility with a jury.

B. (§14.62) Cross Examination of the Arresting Officer-- Videotapes in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Videotapes of the stop are becoming prevalent in some jurisdictions. Determining whether a videotape exists should be one of the defense’s first inquiries in this type of case. While videotapes can be a double-edged sword if they show a subject staggering in intoxication or making damaging admissions to drinking, operation of the vehicle, etc., they often serve as a significant means of challenging the administration and scoring of field sobriety tests. The videotapes can be very helpful for the defense in cases when they act as demonstrative evidence of sobriety in an individual, especially in cases with a high test result. Counsel should carefully review any existing videotape to look for signs of sobriety, e.g., following instructions, speech, performance of field sobriety tests, etc. Juries are obviously more inclined to doubt a breath result when they can view signs of the driver’s sobriety with their own eyes.

Videotapes also serve as an excellent means of cross-examining the officer regarding field sobriety tests. Counsel should note that there are excellent videotape summaries available to assist in evaluating the facts of a case at a very reasonable cost from expert witnesses. Walden, Platt and Associates, 219 North Main Street, Suite 406 , Bryan, Texas 77803, 979/822-3060, is one excellent source of quick, thorough review of such materials.

C. (§14.63) Cross Examination of the Arresting Officer-- Police Reports in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Defense counsel should commit the officer to the four corners of the police report regarding every important fact of the case. The officer should be committed to the fact that the report is complete, is accurate, and includes all relevant information. After the officer has committed to the accuracy of the report, counsel should find all items that indicate the driver’s sobriety that are not in the report and should consider framing all questions thereafter as: “Please show me where your report states that Driver [could not] [did not] ‘X’.”

By showing numerous items that indicate the driver’s sobriety using this method before dealing with field sobriety tests, it helps establish that the driver could perform normal activities, just not those involved in the field sobriety tests, which could be difficult for anyone to perform.

D. (§14.64) Cross Examination of the Arresting Officer-- Examination of the Officer Before Trial in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

It is very effective to have a transcript that commits the officer to his or her version of the facts before trial; such a transcript may be used to impeach the officer’s memory of the case if that memory changes at a later date. Asking friendly, nonconfrontational, open-ended questions to an officer before trial, without being critical or pointing out the officer’s mistakes at that time, often will lead to the officer freely making admissions damaging to the state’s case. Once the officer is committed to the story, the transcript is an excellent tool to impeach the officer in a pointed cross in front of the fact-finder at trial.    

An effective technique is to cite the officer’s testimony from the previous transcript after each question in the materials used for cross-examination to readily be able to impeach the officer. Example: “When you administered this test, you told him to focus on the tip of your ballpoint pen?” (“I told him to focus on the tip of my ballpoint pen.” Transcript, 52 / 6 - 8) .

E. (§14.65) Cross Examination of the Arresting Officer-- Reasonable Suspicion/Probable Cause to Arrest for DWI Based on Standardized Field Sobriety Tests (SFSTs) in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Regarding cross-examination on field sobriety testing, it is vital for the defense to attempt to commit the officer, if possible, to testifying that reasonable suspicion/probable cause was based on the driver’s performance on the SFSTs. When this can be accomplished, defense can obviously show lack of valid reasonable suspicion to arrest when the SFSTs are determined improper.    

To attempt to commit an officer to testifying that probable cause was based entirely on the SFSTs, the entire time period of the stop needs to be broken down one sequential step at a time before attacking the validity of the SFSTs. After inquiring about each sequential step, counsel should ask:     

“Did you arrest the driver at that time?”

“Did you have reasonable suspicion at that time?”

At some point, the officer will commit to when he or she could have or should have arrested the driver. If the officer admits that there was no probable cause to arrest until after the SFSTs, probable cause can be more effectively challenged.

F. (§14.66) Cross Examination of the Arresting Officer-- Outline for Cross-Examination in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

In the field, the real-world administration and scoring of SFSTs often varies very significantly from the tests as envisioned by National Highway Traffic Safety Administration ( NHTSA) protocol in which the officer is trained, and they should be challenged accordingly. To properly challenge the admissibility or validity of SFSTs, it is imperative to memorize every step of NHTSA protocol for each of the three tests. This includes the environmental conditions, the instructions, the demonstrations, the proper means of administering the test, and the scoring.

Unless otherwise indicated, page references in the following outline are to the 2002 NHTSA Student Manual.

I. Administering Standardized Field Sobriety Tests

A. Walk and Turn (WAT)

1. Two Stages

a. Instructions Stage    

b. Walking Stage

2. Instructions Stage (VII-3)    

a. Objective—(VII-3) subject must stand with feet in heel-to-toe position, keep arms at sides, and listen to the instructions

b. Instructions (VIII-9)    

(1) “Have D assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations.”

(2) “Place your left foot on the line.”    

(3) Demonstrate.

(4) “Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot

(5) Demonstrate.

(6) “Place your arms down at your sides.”    

(7) Demonstrate.

(8) “Keep this position until I tell you to begin. Do not start to walk until told to do so.”    

(9) Demonstrate.

(10) “Do you understand the instructions so far?”    

(11) Make sure suspect indicates understanding.

3. Walking Stage    

a. Objectives (VII-3)

(1) “Subject must take nine heel-to-toe steps, turn in a prescribed manner, and take nine heel-to-toe steps back, while counting steps out loud, while watching their feet.”    

(2) “During the turn, the subject must keep their FRONT foot on the line, turn in a prescribed manner, and use the other foot to take several small steps to complete the turn.” (Note: Turn should always be to the left)

b. Instructions (VIII-9)    

(1) “Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:

(2) “When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.”    

(3) Demonstrate three heel to toe steps.

(4) “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot like this.”    

(5) Demonstrate.

(6) “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.”    

(7) “Once you start walking, don’t stop until you have completed the test.”

(8) “Do you understand the instructions?”    

(9) Make sure subject understands.

(10) “Begin, and count your first step from the heel-to-toe position as ‘one.’”    

4. Eight Clues (VIII-10)

a. There are eight clues used to score the subject’s performance of the WAT test. (VII-4, VIII-10–11) The driver will be deemed to have failed the test if two or more of the eight clues are observed by the officer, or if the driver cannot complete the test. (VIII-11)    

b. First two clues are in Instructions Stage

(1) Cannot balance during instructions    

(a) Must balance heel-to-toe during instructions

(b) Listen to instructions at the same time    

(c) Clue should only be recorded if subject does not maintain heel-to-toe position throughout instructions (feet must actually break apart)

(2) Starts before the instructions are finished—Subject must actually start the test before instructions are finished to record the clue    

c. Remaining six clues in Walking Stage (VIII-10-11)    

(1) Stops while walking

(a) Subject must pause several seconds        

(b) Clue is not to be recorded if merely walking slowly

(2) Does not touch heel-to-toe    

(a) Subject does not have to actually touch heel-to-toe

(b) Subject is allowed a space of up to one-half an inch on any step    

(c) Clue is not to be recorded against subject unless space is more than one-half an inch between the heel and toe on any step

(3) Steps off the line—Subject must step so one foot is completely off the line to record this clue    

(4) Uses arms to balance

(a) Subject is allowed to slightly use arms for balance    

(b) Clue is not to be recorded against subject unless one or both arms are raised more than six inches from side at any time during the test to maintain balance

(5) Improper turn    

(a) Subject removes the front foot from the line while turning OR

(b) Subject spins or pivots around without making the series of small steps as instructed    

(6) Incorrect number of steps—Subject must take nine steps in each direction

d. Inability to complete WAT test when (VII-4):    

(1) Steps off line three or more times

(2) Is in danger of falling    

(3) Cannot do the test

(4) All eight clues are recorded against the subject if the WAT test cannot be completed    

5. Test Conditions (VIII-11)

a. Officer must limit movements that would distract subject during the test. 2000 NHTSA Instructor Manual, VIII-12.    

b. Designated (actual) straight line (VIII-11)

(1) 1992 NHTSA Student Manual required a designated straight line, which the officer can manufacture. 1992 NHTSA Student Manual, VIII-19. See §14.37, supra.    

(2) While the designated line may be manufactured at the scene by the officer, NHTSA’s protocol required that the “straight line must be clearly visible.” 1992 NHTSA Student Manual, VIII-18.

c. Should be conducted on a reasonably dry, hard, level, nonslippery surface (VIII-11)    

d. Needs to be sufficient room for subject to complete nine heel-to-toe steps (VIII-11)

e. The subject taking the test (VIII-11)    

(1) The test criteria for the WAT are not necessarily valid for all individuals. 1995 NHTSA Instructor Manual, VIII-63; 2000 NHTSA Instructor Manual, VIII-52–53, 59.

(2) Over 65 years of age?—The WAT is not valid for age 65 and over. Subject should only do the HGN. 1995 NHTSA Student Manual, VIII-21; 1995 NHTSA Instructor Manual, VIII-52.    

(3) Over 50 pounds overweight?—The WAT is not valid for people more than 50 pounds overweight. 1992 NHTSA Instructor Manual, VIII-54.

(4) Back, leg, or middle ear problems?    

(5) High-heeled shoes over two inches in height? (If so, “should be given the opportunity to remove their shoes.”) (VIII-11).

B. One-leg stand (OLS)    

1. Two Stages

a. Instructions Stage    
b. Balance and Counting Stage

2. Instructions Stage    
a. Objectives (VII-3)—Subject must stand with feet together, keep arms at sides, and listen to instructions

b. Instructions (VIII-12)    

(1) “Initiate the test by giving the following verbal instructions, accompanied by demonstrations.”

(2) “Please stand with your feet together and your arms down at the sides, like this.”    

(3) Demonstrate.

(4) “Do not start to perform the test until I tell you to do so.”    

(5) “Do you understand the instructions so far?”

(6) Make sure subject indicates understanding.    

3. Balance and Counting Stage

a. Objectives (VII-4)—“Subject must raise one leg, either leg, approximately six inches off the ground, toes pointed out, keeping both legs straight. While looking at the elevated foot, count out loud in the following manner: ‘one thousand and one’, ‘one thousand and two’, ‘one thousand and three’, until told to stop.”    

b. Instructions (VIII-12)

(1) “Explain the test requirements, using the following verbal instructions, accompanied by demonstrations.”    

(2) “When I tell you to start, raise one leg, either leg, approximately 6 inches off the ground, foot pointed out.”

(3) Demonstrate leg stance.    

(4) “You must keep both legs straight, arms at your side.”

(5) “While holding that position, count out loud in the following manner: ‘one thousand and one, one thousand and two, one thousand and three, etc.’”    

(6) “Keep your arms at your sides at all times and keep watching the raised foot.”

(7) “Do you understand?”    

(8) Make sure subject indicates understanding.

(9) “Go ahead and perform the test.”    

(10) “Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.” (VIII-12)

4. Four Clues (“P.U.S.H.”) (VIII-13)    

a. There are four clues used to score the subject’s performance of the OLS test. (VII-5); (VIII-13). The driver will be deemed to have failed the OLS test if two or more of the four clues are observed by the officer, or if the driver cannot complete the test. (VIII-13).

b. P.U.S.H.    

(1) P—Puts foot down

(a) Subject is not able to maintain one-leg stand position    

(b) Puts foot down one or more times during the 30-second count

(2) U—Uses arms for balance    

(a) Subject is allowed to slightly use arms for balance

(b) Clue is not to be recorded against subject unless one or both arms are raised more than six inches from side at any time during the test in order to maintain balance    

(3) S—Sways

(a) Side-to-side or back-and-forth motion while subject maintains the one-leg stand position    

(4) H—Hops

(a) If subject resorts to hopping this clue is recorded even if subject is able to keep one foot off the ground    

5. Inability to Complete Test (VIII-13)

a. Puts foot down three or more times during 30 second period    

b. Cannot do the test

c. All four clues are recorded against the subject if the test cannot be completed    

6. Test Conditions

a. Officer must limit movements that would distract subject during the test. Officer is to observe from at least three feet away and remain motionless. 1995 NHTSA Student Manual, VIII-23–24; 2000 NHTSA Student Manual, VIII-14. The 2002 NHTSA Student Manual instructs only to observe from a safe distance. 2002 NHTSA Student Manual, VIII-12.    

b. NHTSA validation research indicated there must be adequate lighting for the subject to have a frame of reference for the OLS test. 1995 NHTSA Student Manual, VIII-24. If the subject cannot see or orient himself or herself to a visible point of reference, the test is too difficult to perform even sober, V. Tharp, Marcelline Burns & Herbert Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrests, DOT HS-805-864 (March 1981), at 5, and the test is invalId.

c. “[S]hould be conducted on a reasonably dry, hard, level, nonslippery surface,” and the suspect’s safety should be considered at all times. 2002 NHTSA Student Manual, VIII-11; 2002 NHTSA Instructor Manual, VIII-48.    

d. Wind and weather conditions may interfere with the subject’s performance on the OLS test. 1995 NHTSA Instructor Manual, VIII-73–74.

e. The subject taking the test    

(1) NHTSA’s validation studies indicated that certain individuals had difficulty performing the OLS test when sober, including people over 65 years of age, people over 50 pounds overweight, people with back, leg, or middle ear problems, and people with high-heeled shoes over two inches in height. 2002 NHTSA Instructor Manual, VIII-53; Development and Field Test of Psychophysical Tests for DWI Arrests, DOT HS-805-864; 1995 NHTSA Student Manual, VIII-21.

(2) High-heeled shoes over two inches in height? (If so, “should be given the opportunity to remove their shoes.”)    

C. Horizontal Gaze Nystagmus (HGN)

1. Definitions    

a. Gaze Nystagmus occurs as the eyes move from the center position. NHTSA definition—involuntary jerking of the eyes; Dr. Joe Citron’s definition—lack of fixation when someone looks to the side

b. Three types of Gaze Nystagmus    

(1) Horizontal Gaze Nystagmus—an involuntary jerking of the eyes as they gaze toward the side. Nystagmus may be due to causes other than alcohol. These other causes include seizure medications and some other drugs. A large disparity between the right and left eye may indicate a medical condition. (VIII-8)

(2) Vertical Gaze Nystagmus—the involuntary jerking as the eyes gaze upward. If Vertical Nystagmus is present and horizontal nystagmus is not, a medical condition is present.    

(3) Resting Nystagmus—The jerking of the eyes as they look straight ahead. Only present with pathology or PCP.

2. Description of the Three HGN Clues    

a. Lack of Smooth Pursuit (VIII-5)

(1) The eyes can be observed to jerk or bounce as they follow a smoothly moving stimulus    

(2) The eyes of an unimpaired person will follow smoothly

b. Distinct Nystagmus at Maximum Deviation (VIII-5)    

(1) Distinct nystagmus will be evident when the eye is held at maximum deviation for a minimum of four seconds

(2) People will normally exhibit these signs if eye held at maximum deviation less than four seconds    

c. Onset of Nystagmus Prior to 45 Degrees (VIII-5)

(1) The point at which the eye is first seen jerking    

(2) If the jerking begins prior to 45 degrees, it is allegedly evidence that the person has a BAC above 0.08

3. Administering the HGN Test    

a. Pretest —Before looking for the three clues

(1) Remove subject’s glasses, if any (VIII-6)    

(2) The presence of contact lenses should be noted, but they do not have to be removed for the test

(3) Instructions (VIII-6)    

(a) “Place your feet together with your hands at your sides.”

(b) “I am going to check your eyes.” (VIII-6)    

(c) “Keep your head still and follow this stimulus with your eyes only.” (VIII-6)

(d) “Keep following the stimulus with your eyes until I tell you to stop.” (VIII-6)    

(4) Stimulus

(a) “Position the stimulus approximately 12–15 inches from the suspect’s nose and slightly above eye level.” (VIII-6); (X-3)    

(b) “Stimulus may be tip of pen or penlight, an eraser on a pencil or your fingertip, whichever contrasts with the background.” (VII-5)

(5) Pretest—Before administering HGN test, officer must check subject’s eyes for equal tracking and equal pupil size (VIII-5)    

(a) Equal tracking—if the eyes do not track together, it could indicate medical disorder, injury, or blindness (VIII-6)

(b) Pupil Size—if pupils are different sizes, could indicate head injury (VIII-6)    

(6) Pretest pass for equal tracking and pupil size is at least one pass of the stimulus in front of the subject’s eyes before looking for the three clues

b. lack of smooth pursuit (Clue Number One) (VIII-7)    

(1) Left Eye

(a) Always begin with subject’s left eye. 1995 NHTSA Instructor’s Manual, VIII-20.    

(b) Check subject’s left eye by beginning with the center of the subject’s face, moving the stimulus to the officer’s right.

(c) Move the stimulus smoothly, at a speed that requires two seconds to take the subject’s left eye out as far as it will go with the stimulus without the head moving.    

(d) With the stimulus, return the eye from as far out as it will go to center, moving the stimulus smoothly, at a speed that requires two seconds to return subject’s left eye to center.

(e) Move the stimulus “20 degrees per second,” 2000 NHTSA Instructor Manual, VIII-18, i.e., two seconds out from center to side, and two seconds back from side to center.

(2) Right Eye

(a) Check subject’s right eye by beginning with the center of the subject’s face, moving the stimulus to the officer’s left.

(b) Move the stimulus smoothly, at a speed that requires two seconds to take the subject’s right eye out as far as it will go with the stimulus without the head moving.    

(c) With the stimulus, return the eye from as far out as it will go to center, moving the stimulus smoothly, at a speed that requires two seconds to take return subject’s right eye to center.

(d) Move the stimulus “20 degrees per second,” 2000 NHTSA Instructor Manual, VIII-18, i.e., two seconds out from center to side, and two seconds back from side to center.    

(3) Repeat Entire Procedure for Both Eyes—Must check each eye at least twice for lack of smooth pursuit. 1995 NHTSA Instructor Manual, VIII-21, 23

(4) Common Mistakes    

(a) Holding stimulus too close or too far away from the subject. 1995 NHTSA Instructor Manual, VIII-25

(b) Not holding stimulus slightly above eye level throughout the passes (VIII-6, X-3)    

(c) Moving the stimulus too quickly or too slowly, 2000 NHTSA Instructor Manual, VIII-20–21, or not using a smooth motion, which may induce artificial jerking of the subject’s eyes

(d) Failing to move the stimulus far enough to the side. 2000 NHTSA Instructor Manual, VIII-20–21    

(e) Arcing the path of the stimulus upward or downward during any pass causing the stimulus to vary from slightly above eye level. 2000 NHTSA Instructor Manual, VIII-20–21

c. Distinct Nystagmus at Maximum Deviation (Clue Number Two) (VIII-7)    

(1) Left Eye

(a) Begin with subject’s left eye.    

(b) Check subject’s left eye by beginning with the center of the subject’s face, moving the stimulus to the officer’s far right until subject’s left eye is at maximum deviation.

(c) Usually no white will be showing in the corner of the eye at maximum deviation.    

(d) Hold the stimulus at maximum deviation for a minimum of four seconds.

(e) Look for distinct and sustained nystagmus while holding the eye at maximum deviation for at least four seconds.    

(f) Note: Fatigue nystagmus will be evident in many sober individuals if eye is held at maximum deviation for more than 30 seconds.

(2) Right Eye    

(a) To check the subject’s right eye, move the stimulus all the way across the subject’s face to the officer’s left until right eye is at maximum deviation.

(b) Usually no white will be showing in the corner of the eye at maximum deviation.    

(c) Hold the stimulus at maximum deviation for a minimum of four seconds.

(d) Look for distinct and sustained nystagmus while holding the eye at maximum deviation for at least four seconds.    

(e) Note: Fatigue nystagmus will be evident in many sober individuals if eye is held at maximum deviation for more than 30 seconds.

(3) Repeat Entire Procedure for Both Eyes    

(4) Common Mistakes

(a) Holding stimulus too close or too far away from the subject. 1995 NHTSA Instructor Manual, VIII-25    

(b) Moving the stimulus too quickly or too slowly, 2000 NHTSA Instructor Manual, VIII-20-21, or not using a smooth motion, which may induce artificial jerking of the subject’s eyes

(c) Failing to move the stimulus far enough to the side, 1995 NHTSA Instructor Manual, VIII-29    

(d) “Some white still showing” while attempting to place eye at maximum deviation with stimulus. 2000 NHTSA Instructor Manual, VIII-24

(e) Not holding eye at maximum deviation for at least four seconds. 2000 NHTSA Instructor Manual, VIII-24. (With each eye tested twice, at least 16 seconds of eyes held at maximum deviation must exist for a valid test, i.e., 4 x 4. This also does not take into account the time it takes to smoothly move the stimulus to maximum deviation for each eye.)    

d. Onset of Nystagmus Prior to 45 Degrees (Clue Number Three) (VIII-7)

(1) Left Eye    

(a) Begin with subject’s left eye.

(b) Check subject’s left eye by beginning with the center of the subject’s face, moving the stimulus to the officer’s right.    

(c) Move the stimulus smoothly, at a speed that requires four seconds to take the stimulus from center to the edge of the subject’s left shoulder.

(d) Watch for any jerking at any time during the pass between center and the edge of the subject’s shoulder, stopping the stimulus immediately if jerking is observed and holding stimulus in place to verify that the jerking continues.    

(e) “If the suspect’s eyes start jerking before they reach 45 degrees” (edge of shoulder), “check to see that some white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you either have taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.” (VIII-7)

(2) Right Eye    

(a) Check subject’s right eye by beginning with the center of the subject’s face, moving the stimulus to the officer’s left.

(b) Move the stimulus smoothly, at a speed that requires four seconds to take the stimulus from center to the edge of the subject’s right shoulder.    

(c) Watch for any jerking at any time during the pass between center and the edge of the subject’s shoulder, stopping the stimulus immediately if jerking is observed and holding stimulus in place to verify that the jerking continues.

(d) “If the suspect’s eyes start jerking before they reach 45 degrees” (edge of shoulder), “check to see that some white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you either have taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.” (VIII-7).

(3) Repeat the Entire Procedure for Both Eyes (4) Common Mistakes

(a) Moving the stimulus too quickly by not taking the full four seconds to move the stimulus from center to the subject’s shoulder    

(b) Not stopping the stimulus to verify any observed jerking in the eye

(c) Failing to check for white in the corner of the eye on the side closest to the ear to verify that the stimulus has not been taken past 45 degrees. 2000 NHTSA Instructor Manual, VIII-32.    

(d) Failing to check alignment with shoulder. Id.

(e) Stopping the stimulus on any pass of this clue short of 45 degrees. Id.    

e. Vertical Gaze Nystagmus (given at the end of the HGN test, commonly used to determine impairment by certain drugs separate from alcohol) (VIII-8)

(1) Stimulus must be one pass or a series of passes separate from those used to test for the three clues above, and are not part of the HGN test    

(2) Administration

(a) Position the stimulus horizontally, about 12–15 inches in front of the subject’s nose.    

(b) Instruct the subject to hold the head still and follow the stimulus with the eyes only.

(c) Raise the stimulus until the subject’s eyes are elevated upward as far as possible.    

(d) Hold for approximately four seconds

(e) Watch closely for evidence of jerking.    

4. HGN Notes for Cross-examination

a. Subject must always be made to face away from flashing or strobe lights to avoid stimulation of artificial jerking of the eyes because of the light. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor Manual, VIII-56.    

b. 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.

c. Visual or other distractions may impede the test. 1995 NHTSA Instructor Manual, VIII-66; 2000 NHTSA Instructor Manual, VIII-56.

d. Glasses impede peripheral vision. 1995 NHTSA Instructor Manual, VIII-17; 2000 NHTSA Instructor Manual, VIII-13.    

5. Missouri HGN Cases

a. The HGN test meets the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), standard of admissibility. State v. Hill, 865 S.W.2d 702, 704 (Mo. App. W.D. 1993), overruled on other grounds, State v. Carson, 941 S.W.2d 518, 520 ( Mo. banc 1997).    

b. Police officer must be adequately trained and able to properly administer the test. (Eight hours training required on the HGN. Hill, 865 S.W.2d at 704.)

c. HGN can be admitted as evidence of intoxication. Hill, 865 S.W.2d at 704.    

II. Portable Breath Test

III. NHTSA Validation Language (VIII-19)    

A. “It is necessary to emphasize this validation applies only when:

1. The tests are administered in the prescribed, standardized manner    

2. The standardized clues are used to assess the suspect’s performance

3. The standardized criteria are employed to interpret that performance.    

B. If any of the standardized field sobriety elements is changed, the validity is compromised.

G. (§14.67) Cross Examination of the Arresting Officer: Examples of Cross-Examination Questions in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

For exhaustive lists of cross-examination questions of an officer in a DWI case, see:

Lawrence E. Taylor, Drunk Driving Defense (5 th ed. Aspen Publishers);

Flem K. Whited & Donald H. Nichols, Drinking/Driving Litigation: Criminal and Civil (2 nd ed. 2003);

John A. Tarantino, Defending Drinking Drivers (James Publishing, Inc.); and

Richard Erwin, Defense of Drunk Driving Cases, Criminal and Civil (3 rd ed. 1992 Matt hew Bender).

The example in §§14.68–14.101 below of typical cross-examination materials regarding the NHTSA protocol and standardized field sobriety testing is meant to be illustrative only and should be modified as the case dictates. The sections covering police reports, number of DWI trials, professional witness, failure to impound and inventory evidence, and questions generally regarding the stop and field sobriety testing are loosely based on material provided by defense attorney Edward Loss III, of Arizona, at the National College for D.U.I. Defense summer session, presented at Harvard University, Summer 2003, reproduced with Mr. Loss’s permission. Unless otherwise indicated, parenthetical information following some of the questions is an example of using the officer’s previous answers recorded in a transcript, with reference to the location of the answer in the transcript. See §14.64, supra.

1. (§14.68) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions: Introduction

Please state for the record your name, serial number, and employment.    

If you do not understand any of my questions would you please ask me to repeat or rephrase it for you?

Officer, if I ask you any question that you find offensive, will you please tell me?    

You are trained as a police officer in the State of Missouri ?

Part of your training included the National Highway Traffic Safety Administration or NHTSA’s guidelines for making alcohol arrests?    

And for administering standardized field sobriety tests?

Would you believe it fair to state that NHTSA is an authoritative source regarding information about alcohol arrests and standardized field sobriety testing?    

Officers’ training at the police academy is done according to NHTSA’s standardized procedures?

2. (§14.69) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions: Police Reports in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

You prepared a written report in relation to this matter?    

Your report in relation to this matter is complete and accurate? (“Complete and accurate, yes.” 8 / 3 - 5)

And you agree that a complete and accurate report will contain all of the important facts? (“Yes.” 7 / 21 - 24)    

The night you arrested Mr. _____________ was the first and only night you ever met him?

You do not have a clear recollection of the facts attendant to this matter without consulting your report? (“Vague.” 10/ 11 - 14)    

Prior to the hearing today, have you had the opportunity to review your report?

Your report for this matter was prepared from notes that you took in the field?    

You threw those field notes away?

It’s your “personal preference” to throw your field notes away, isn’t it? (8 / 18 - 21)    

This jury will never see your field notes, will they?

Your report in relation to this matter was prepared after the arrest decision had been made? (8 / 22 - 25)    

Your report was prepared 12 hours after your arrest decision? (9/ 15 - 16)

And there is no aspect of your complete and accurate report in relation to this matter that you would like to change or modify, is there? (“No.” 11 / 1 - 4)    

You do agree that there is a difference between probable cause to arrest and proof beyond a reasonable doubt, don’t you? (12 / 19 - 22)

3. (§14.70) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions: Number of DWI Trials

You’ve been with ___________ police department for _____ years Prior to that you were with the _____________ office for three years?

During your years in law enforcement, you’ve been involved in approximately _______ DWI arrests? (11 / 15 - 16)                    

Despite your _____ DWI arrests, as of _____________, the date of your deposition, you’ve never testified in a single DWI trial? (12 / 3 - 7)

This is the first time in ______ DWI arrests that your version of events will be subject to cross-examination, correct?                    

This is the first time in _____ DWI arrests that your version of events will be subject to question?

This is the first time in _____ DWI arrests that your DWI procedures will be subject to close scrutiny?

4. (§14.71) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions: Overtime Related to Arrests-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Can you tell this jury how much overtime pay you made in relation to DWI arrests in ____? (14 - 15)

Can you tell this jury how much overtime pay you made in relation to DWI arrests in ____? (14 - 15)

Can you tell this jury how much overtime pay you made in relation to DWI arrests in ____? (14 - 15)    

Despite _______ DWI arrests, you have no idea how much money you made in overtime pay in relation to DWI arrests in _____, _____, or the year _____? (14 - 15)

Officer, do you believe there is anyone on this jury who honestly doesn’t know how much money they make?

5. (§14.72) Examples of Standardized Field Sobriety Testing Cross Examination Questions: Professional Witness-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

You’ve received training in how to testify in court? (12 / 23 - 25)     You consider yourself a professional when it comes to offering testimony in court? (13 / 22 - 24)

And, you consider it your job here today to help convict [driver] of these charges, don’t you?

6. (§14.73) Examples of Cross Examination Questions: Operation of the Vehicle (if at Issue) in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Was there anyone else with you when you first approached my client?    

There was no one else present?

It was dark when you first approached my client at the scene of arrest?    

Your report indicates that your initial contact with Mr. ____________ was at his vehicle at the scene of the arrest?

Your report indicates that when you first approached my client that you saw “the interior light of the truck come on and could see a white male subject reaching in to the interior of the cab through the driver’s side door”?

Do you think this is a fair characterization of my client’s actions when you first saw him at the scene?

So he was standing beside the truck reaching into the window when you first saw him?    

His buttocks were located outside his vehicle when you first approached him?

His head was located outside his vehicle when you first approached him?    

His hands were located outside his vehicle when you first approached him?

His feet were located outside his vehicle when you first approached him?    

The motor was not running when you first approached him?

The keys to the vehicle were not in the ignition when you first approached him?    

The transmission was in park when you first approached him?

The headlights of the vehicle were not on when you first approached him?    

The radio was not on when you first approached him?

The heating / air conditioning was not on when you first approached him?    

He was not sitting in his vehicle when you first approached him?

OR    

He was not sitting in the driver’s seat of his vehicle when you first approached him?

Other than being transported by the police to the station, Mr. _____________ was never in a vehicle in your presence on the night of arrest?    

Your report does not indicate anywhere that my client admitted to driving?

Please indicate where your report indicates any admissions by my client that he was driving.    

If he did make admissions to driving it would be important that you list it in your report, wouldn’t it?

7. (§14.74) Examples of Cross Examination Questions: Vehicle in Motion-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

You stopped my client for an illegal turn?

This is a relatively minor traffic infraction?

Most people who receive minor traffic infractions such as an illegal turn or speeding are not arrested for DWI?    

The alleged illegal turn is not in itself enough to charge someone with DWI?

You did not have reasonable suspicion to arrest him for DWI at the moment you stopped him for the illegal turn, did you?    

You did not arrest him under reasonable suspicion for DWI at that point in the stop, did you?

(Go through the vehicle in motion clues the officer did and did not observe in making the stop.)    

My client did not straddle either the center or lane marker?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not have eye fixation?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not tightly gripping the steering wheel?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not slouching in the seat?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not g esturing erratically or obscenely?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not have his face close to the windshield?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not drinking in the vehicle?

Please indicate where in your report it indicates my client exhibited this clue.    

My client’s head was not protruding from the vehicle?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not almost strike any object or vehicle?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not weaving?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not driving on anything other than the properly designated roadway?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not swerving?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not driving at a speed slower than 10 M.P.H. below the limit?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not stop in his driving lane for no apparent reason?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not following any other vehicle too closely?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not d rifting in his lane?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not cause his tires to move onto the center of the road or onto the lane marker?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not braking erratically?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not driving into opposing or crossing traffic?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not have slow response to traffic signals?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not signaling inconsistent with his driving actions?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not stopping inappropriately with regard to his driving actions?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did not stop inappropriately?

Please indicate where in your report it indicates my client exhibited this clue.    

My client did allegedly make an illegal turn?

Please indicate where in your report it indicates my client exhibited this clue.    

My client was not accelerating or decelerating rapidly?

Please indicate where in your report it indicates my client exhibited this clue.    

My client’s headlights were not off?

8. (§14.75) Examples of Cross Examination Questions: Further Driving Examples-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Now, you had an opportunity to observe my client’s vehicle for approximately two miles as it proceeded northbound on X Road the night of his arrest? (18 / 22 - 25)

According to your complete and accurate report, your attention was first directed to Mr. X’s truck because it drifted between lanes number # 1 and # 2 on northbound X Road ?

And the driving behavior that brought Mr. X to your attention took five to ten seconds?    

When you first stopped him, he tried to explain his erratic driving by telling you he was “reaching for a CD” as he drove? (21 / 5 - 9)

And you would agree that reaching for a CD could certainly explain the driving behavior that you observed? (“To a degree.” 21 / 10 - 13)    

There were not a lot of other vehicles on the road at that time, were there? (“No, there were not.” 21 / 21 - 23)

And there is nothing in your complete and accurate report stating that the driving behavior that you have described put any other vehicles at risk, correct? (“Not specifically, no.” 22 / 4 - 7)    

You would agree that, as a police officer, it is your normal practice to issue citations and warnings for the motor vehicle infractions that you observe? (“Yes.” 24 / 2 - 5)

And you did not cite him or issue him a warning ticket for driving on other than the designated roadway, did you? (24 / 6 - 8)    

And you did not cite him or issue him a warning ticket for improper lane usage, did you? (24 / 9 - 12)

In point of fact, you didn’t cite him for any of the improper driving that you claim to have observed, did you? (“No I did not.” 24 / 13 - 16)    

Now, despite all of the driving irregularities you claim to have observed, when you first observed Mr. X’s vehicle, you did not conclude that he was impaired by reason of alcohol consumption, did you? (“Not at all.” 23/ 14 - 19)

Ok, let’s talk about some of the things that you did not observe, shall we?    

Nothing in your complete and accurate report suggests that Mr. X failed to maintain a safe and proper interval between himself and the vehicle in front of him, does it? (“That’s correct.” 25 / 4 - 8)

Now you observed Mr. X execute a right hand turn into the mobile home park off of X Road , correct? (25 / 9 - 12)    

And nothing in your report suggests that you observed Mr. X turning with a wide radius, does it? (25 / 13 - 16)

And nothing in your complete and accurate report suggests that he failed to signal his right hand turn into that mobile home park, does it?    

And you would agree that signaling a turn is a driving behavior that you, as a trained officer, would expect from a sober and prudent driver, isn’t it?

Nothing in your report suggests that Mr. X appeared to be drunk prior to the stop? (25 / 17 - 19)    

Nothing in your report suggests that you observed Mr. X almost strike another vehicle or object, does it? (25 / 20 - 23)

Nothing in your report suggests that my client was exceeding the posted speed limit, does it? (25 - 26)    

Nothing in your report suggests that Mr. X was driving at a rate of speed more that 10 miles below the posted speed limit? (26 / 2-5)

Your report doesn’t suggest that my client was observed stopping without cause in a lane of traffic? (26 / 7 - 9)    

Your report doesn’t suggest that you observed Mr. X following another vehicle too closely? (26 / 10 - 12)

In fact, we know that none of the driving behavior that you observed put any other vehicle at risk, don’t we? (22 / 4 - 7)    

Nothing in your report suggests that Mr. X was braking erratically? (26 / 13 - 15)

Your report doesn’t suggest that you observed my client driving into opposing or crossing traffic? (26 / 20 - 23)    

Your report doesn’t suggest that you observed Mr. X signaling in a manner inconsistent with his driving behavior? (26 - 27)

Your report doesn’t suggest that you observed Mr. X turning abruptly or illegally? (27 / 19 - 21)    

And we know that he signaled his right hand turn into that mobile home park off of X Road , don’t we? (27 / 6 - 9)

Nothing in your report suggests that you observed my client’s responses to traffic conditions as being slow? (27 / 10 - 13)    

And we know that when his vehicle went off the road onto the shoulder he made an immediate and appropriate correction, didn’t he?

Your report doesn’t suggest that you observed Mr. X stopping inappropriately? (27 / 16 - 19)    

And we know that when he pulled into the mobile home park, he parked in an appropriate location, didn’t he?

Your report doesn’t suggest that you observed Mr. X accelerate or decelerate rapidly or inappropriately? (27 / 22 - 24)    

Your report doesn’t suggest that you observed my client driving with his headlights off? (27 - 28)

So, based on the driving that you observed, you did not conclude that Mr. X was impaired for reason of alcohol consumption, did you? (“Not at all.” 28 / 3 - 6)

9. (§14.76) Examples of Cross Examination Questions: Stopping Sequence of the Vehicle-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

My client did not attempt to flee?    

Please indicate where in your report it indicates my client exhibited this clue.

My client responded immediately to your request to stop when he saw your lights and heard your siren?     Please indicate where in your report it indicates my client exhibited this clue.

My client was not slow to respond to the signs that he was being requested to stop?    

Please indicate where in your report it indicates my client exhibited this clue.

My client did not make an abrupt swerve when requested to stop?    

Please indicate where in your report it indicates my client exhibited this clue.

My client did not make an inappropriately sudden stop when requested to pull over?    

Please indicate where in your report it indicates my client exhibited this clue.

My client did not strike any curb or other object when he properly pulled over?    

Please indicate where in your report it indicates my client exhibited this clue.

10. (§14.77) Examples of Cross Examination Questions: Driver's Initial Response to Emergency Lights-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Nothing in your report suggests that Mr. X’s response to your emergency lights was slow or inappropriate? (28 / 11 - 15)

Based on what’s contained in your police report, his response to your emergency lights was consistent with the response that you, as a trained officer, would expect from a sober and prudent person, correct? (“Not necessarily.” 29 / 2 - 6)

Nothing about his response to your emergency lights suggested mental impairment, correct? (“No.” 29 / 10 - 12)    

After observing the vehicle in motion and the stopping sequence where my client pulled over when he saw your lights, you had no reasonable suspicion at that point to believe he was committing any offense other than committing the traffic offense of an illegal turn, is that correct?

You did not have reasonable suspicion to arrest him for DWI at that point, did you?    

You did not arrest him under reasonable suspicion for DWI at that point in the stop, did you?

11. (§14.78) Examples of Cross Examination Questions: Officer's Personal Observations of the Driver-- in Missouri DUI / DWI /BAC or Other Drunk Driving Case

Under the NHTSA guidelines you were trained with at the academy, after a vehicle is stopped you are to observe and interview the driver, and observe the driver’s exit and walk, isn’t that correct?

12. Examples of Cross Examination Questions: Officer's Interview of the Driver-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

a. (§14.79) General

Given your supposed 400 DWI arrests, is it fair to say that you essentially follow the same investigatory procedures in most of your DWI arrests?

You asked Mr. X several questions in your interview, didn’t you? (32 / 19 - 20)    

What was the first thing you asked him? (“Specifically, I don’t recall.” 32 / 22 - 23)

What was the second thing you asked him? (32 / 24 - 25)    

What was the third thing you asked him?

You’ve been involved in 400 DWI arrests, and you don’t remember the first question that you asked him?    

He appeared to understand each and every one of your questions, didn’t he? (“Somewhat” 33 / 10 - 12)

His responses to your questions were appropriate in relation to the questions asked? (“I believe so.” 33 / 13 - 16)    

Nothing in your report suggests that his responses to your questions suggested impaired mental faculties, does it? (“Nothing in my report, no.” 33 / 17 - 20)

During the course of your investigation, you asked Mr. X if he could “feel the effects of alcohol while driving,” correct? (23 / 4 - 7)    

And he responded, “No, he could not feel the effects of alcohol in any way while driving,” correct? (“Yes, correct.” 23 / 8 - 10)

And he answered that question unequivocally, unambiguously, and without hesitation, didn’t he? (23 / 11 - 13)    

He told you that he could not feel the effects of alcohol in any way while driving, didn’t he?

b. (§14.80) Examples of Cross Examination Questions: NHTSA Interview Clues of impairment in the Officer Interview of the Driver in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Your NHTSA training indicates there are certain clues which might indicate alcohol impairment when you interview a driver?

My client produced his license and registration upon request, didn’t he?

He did not produce any documents other than those requested, did he?    

He readily retrieved his license and registration for you and did not fail to see them while searching through his wallet, didn’t he?

He did not fumble or drop his wallet, license, or registration, did he?    

He was able to retrieve the documents using his fingertips, wasn’t he?

Nothing in your report indicates he had bloodshot eyes?    

Nothing in your report indicates he had soiled clothing?

Nothing in your report indicates he had fumbling fingers?    

Nothing in your report indicates alcohol containers were present?

Nothing in your report indicates drugs or drug paraphernalia were present?    

Nothing in your report indicates he had bruises, bumps, or scratches?

Nothing in your report indicates he exhibited any unusual actions?    

Nothing in your report indicates he had slurred speech?

Nothing in your report indicates he made any admissions of drinking?    

Nothing in your report indicates he gave any inconsistent responses?

Nothing in your report indicates he used abusive language?    

Nothing in your report indicates he made any unusual statements?

Nothing in your report indicates the odor of alcoholic beverages?    

Nothing in your report indicates the odor of marijuana?

Nothing in your report indicates the presence of cover-up odors like breath sprays?    

Nothing in your report indicates the presence of unusual odors?

So my client allegedly showed ________ (number) of _______ clues total?    

You did not have reasonable suspicion to arrest my client for DWI after the interview with him, did you?

Did you in fact arrest my client at that time?    

You proceeded with your investigation to attempt to gain reasonable suspicion to arrest because it did not yet exist, didn’t you?

c. (§14.81) Examples of Cross Examination Questions: Officer's Requests for Documentation to the Driver-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

At some point in time, you asked Mr. X to produce his driver’s license? (33 / 21 - 23)

And he understood your request in this regard? (33 - 34)

Nothing in your complete and accurate report suggests that his response to your request for his driver’s license suggested mental impairment, correct? (“Not that I see in my report.” 34 / 2 - 5)    

And he produced his driver’s license in a timely manner? (“Yes he dId.” 34 / 8 - 10)

Your report in relation to this matter does not suggest that he “fumbled” with his wallet while locating his driver’s license, does it? (“No.” 34 / 11 - 14)    

Based on your training and experience, you know that a truly impaired driver will often fumble for their driver’s license and other requested documentation, won’t they? (“Yes.” 34 / 15 - 19)

But Mr. X did not fumble with his wallet for requested documentation, did he? (“No, sir.” 34 / 20 - 22)    

Nothing in your complete and accurate report suggests that Mr. X’s retrieval of requested documents demonstrated impaired fine motor skills, does it? (“No it does not.” 34 - 35)

And nothing in your report suggests that his mental abilities were impaired by reason of his responses to your requests for documentation, does it? (“No it does not.” 35/ 12 - 15)    

Nothing in your report suggests that his responses to your requests for documents suggested that his mental abilities were impaired to the slightest degree, does it? (“Correct.” 35 / 16 - 23)

Nothing in your report suggests that Mr. X’s responses to your requests for documents were anything other than the responses that one would expect from a prudent and sober person, correct? (“That is a correct statement.” 36 / 12 - 18)    

So, based on his responses to your questions and your requests for documentation, you did not conclude that he was impaired by alcohol, did you? (“No.” 36 / 19 - 22)

d. (§14.82) Examples of Cross Examination Questions: Nervousness in the Driver-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

You checked the box indicating nervousness in your report, is that correct?

You would agree that a police officer is an authority figure? (36 / 23 - 25)

As a police officer, you get to carry a badge and a gun and you have the power to arrest people, don’t you? (37 / 1 - 3)            

And you would agree that the power to arrest people carries with it the power to seriously affect people’s lives, doesn’t it?

Now, you went to school in order to acquire the power to carry a badge and a gun and have the power to seriously affect people’s lives, correct? (37 / 4 - 8)

Based on your training and experience, you would agree that people are often nervous during encounters with a police officer, aren’t they? (37/ 9 - 12)

And you would also agree that people are nervous when confronted by a police officer, even if they have done nothing wrong, correct? (37 / 17 - 19)

Mr. X wasn’t under oath when you were questioning him in the field, was he? (37 / 20 - 22)    

Just like you weren’t under oath when you prepared your report in relation to this matter, were you? (37 - 38)

But you are under oath today, aren’t you?    

And you were under oath at a Director of Revenue hearing in relation to this matter on _____________, weren’t you?

And you were also under oath during your deposition in relation to this matter on ________________, weren’t you?

e. (§14.83) Examples of Cross Examination Questions: Odor of Intoxicating Beverage-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

According to your complete and accurate report, you detected the strong odor of alcohol emitting from the passenger compartment of Mr. X’s truck when you walked up to the passenger window? (39 / 5 - 10)

I believe you testified at the Director of Revenue hearing on _______________, that the odor you detected was consistent with the odor of beer? (39 / 16 - 19)

From the odor you detected, you could not tell how much beer or alcohol was consumed, could you? (“Not at all.” 39 / 20 - 22)    

And, from the odor you detected, you could not tell when that alcohol might have been consumed, could you? (39 23 - 25)

And, based on the odor you detected, you did not conclude that Mr. X was impaired by reason of alcohol consumption, did you? (40 / 13 - 17)    

That’s because the odor of an alcoholic beverage is merely a sign of consumption and not a sign of impairment, correct? (40 / 18 - 21)

And it’s not illegal to consume alcohol and then drive a motor vehicle, is it? (“No, sir, it is not.” 40 - 41)    

That’s why most bars and restaurants that serve alcohol have parking lots, correct? (“Sure.” 41 / 4 - 6)

Now, reading from your complete and accurate report: “I asked Mr. X if he had been consuming alcohol tonight, and he said ‘no.’ I asked him to blow air from his mouth into my face, which he dId. I smelled the strong odor of an alcoholic beverage on his breath.” Is that what your report says, Officer?    

So, you asked him to blow into your face despite the fact that you had detected the strong odor of an alcoholic beverage when you first approached the truck, correct? (“Correct.” 41 / 14 - 18).

f. (§14.84) Examples of Cross Examination Questions: Blood Shot Eyes—Dazed Look on Face-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Continuing with your complete and accurate report, you claim to have observed Mr. X to have bloodshot eyes and a dazed look on his face? (41 / 22 - 25)

You had never seen Mr. X prior to the moment you stopped him, had you? (42 / 1 - 3)

You had no prior knowledge as to how he normally looks? (42 / 4 - 6)    

He didn’t tell you he was “dazed,” did he? (42 / 7 - 8)

In point of fact, on the night you arrested Mr. X, you had no idea whether the look on his face was the least bit unusual, did you? (42 / 12 - 15)  

That’s because you had never laid eyes on him before, had you? (42 / 16 - 18)

As a matter of fact, that look on his face could have easily been one of anger or frustration because he didn’t like being messed with by you, correct? (42 / 19 - 22)    

You stopped Mr. X at 9:35 at night? (42 / 23 - 25)

You have no idea how long he had been awake that day? (43 / 4 - 6)    

You would agree that many people get red and watery eyes just because they are tired?

You would agree that many motorists have red and watery eyes even when cold sober? (“That hasn’t been my personal experience, no.” 43 / 11 - 14)    

Let me ask you this: Have you ever had to work all night and then come to court to testify? (“Oh, yeah.” 43 / 15 - 17)

Perhaps your eyes might have been red and watery from having worked all night? (43 / 18 - 20)    

But you weren’t under the influence of alcohol in court, were you?

NHTSA has also determined in the field that bloodshot eyes are an invalid indicator of alcohol intoxication, haven’t they?    

—“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.” “The Detection of DWI at BACs below 0.10,” DOT HS 808 654, FINAL REPORT, p. E-10.

OK, so based on the condition of my client’s eyes and the expression on his face, you did not conclude that Mr. X was impaired by reason of alcohol consumption, did you? (43 - 44)

g. (§14.85) Examples of Cross Examination Questions: Slurred Speech-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

OK, your complete and accurate report also states that Mr. X’s speech was slurred?

You don’t have any training in speech pathology, do you? (48 / 22 - 24)    

In other words, you couldn’t tell me if it was his morphemes, his phonemes, or his fricative consonants that were slurred, could you?

You had never met or spoken with Mr. X prior to ______________________?

h. (§14.86) Examples of Cross Examination Questions: flushed face in the Driver-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

OK, based on your training and experience, you would agree that a flushed or red face is a common symptom of alcohol intoxication? (49 / 22 - 24)    

And Mr. X did not have a flushed or red face on the night he met up with you, did he? (49 / 19 - 21)

OR IF THIS CLUE IS INDICATED IN THE REPORT:    

NHTSA has also determined in the field that a red or flushed face is an invalid indicator of alcohol intoxication, haven’t they?

—“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.” “The Detection of DWI at BACs below 0.10,” DOT HS 808 654, FINAL REPORT, p. E-10.

i. (§14.87) Examples of Cross Examination Questions: Sluggish Mannerisms in the Driver-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

OK. continuing with your complete and accurate report . . .    

Your report in relation to this matter states that Mr. X’s “mannerisms were sluggish”? (“Correct.” 50 / 3 - 6)

Again, you never laid eyes on him prior to the night of his arrest? (50 / 9 - 11)    

You had no idea how he normally behaves? (“Correct.” 50 / 22 - 24)

You had no idea what his normal “mannerisms” were? (“Correct.” 51 / 16 - 18)

13. (§14.88) Examples of Cross Examination Questions: Exit Sequence of the Driver From the Vehicle-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

I am now going to ask you about when you requested my client to exit his vehicle.

NHTSA instructs you that there are seven clues to look for impairment when a driver exits the vehicle?

Nothing in your report indicates my client showed any angry or unusual reaction when he exited his vehicle?    

Nothing in your report indicates that he could not follow instructions?

Nothing in your report indicates that he could not open the door.    

Nothing in your report indicates that he left his vehicle in gear when he exited his vehicle?

Nothing in your report indicates that he climbed out of his vehicle?    

Nothing in your report indicates that he was leaning against the vehicle when he got out to maintain balance?

Nothing in your report indicates that he kept his hands on the vehicle for balance?    

Nothing in your report indicates that my client exhibited any of NHTSA’s clues of alcohol intoxication when a driver exits a vehicle?

Go through the chart in §14.11 above and check all clues officer has in report and all clues he does not have in his report if it is beneficial to the client in the case, and give a “grade” in front of the jury.

You asked him to sit in your patrol car at that point for ______ minutes?

You did not have reasonable suspicion to arrest him for DWI at that point, did you?    

You did not arrest him for reasonable suspicion for DWI at that point in the stop, did you?

You proceeded with your investigation to attempt to gain reasonable suspicion to arrest because it did not yet exist, didn’t you?    

NHTSA provides you are not to administer standardized field sobriety tests to a driver unless probable cause exists at this point, doesn’t it?

But you chose to proceed with giving the field sobriety tests despite not having reasonable suspicion to do so, didn’t you?    

You would have arrested my client before administering standardized field sobriety tests if you had reasonable suspicion, wouldn’t you?   

14. (§14.89) Examples of Cross Examination Questions: Exit Sequence of the Driver From the Vehicle-- Further Examples-- in Missouri DUI / DWI /BAC or Other Drunk Driving Case

Now, after Mr. X properly parked his vehicle. you approached his vehicle, correct? (30 / 5 - 7)    

Shortly thereafter, you asked him to exit his vehicle? (30 / 8 - 10)

He appeared to understand your request in this regard? (30 / 11 - 12)    

Nothing about his response to your instructions to exit his vehicle suggested impaired mental faculties, did it? (“No, not that I recall.” 30 / 13 - 17)

You observed him exit his vehicle? (30 / 18 - 19)    

Nothing in your report suggests that he had difficulty exiting his vehicle? (30 / 20 - 22)

Nothing in your complete and accurate report suggests that he had difficulty maintaining his balance as he exited his vehicle? (30 - 31)    

And, you know based on your training and experience, that a truly impaired driver will often have difficulty exiting his vehicle? (“At times.” 31 / 8 - 11)

You are trained to note evidence of impairment in your complete and accurate reports, aren’t you? (31 / 2 - 4)    

And if he had difficulty exiting his vehicle, you would have noted that fact in your report, correct? (31 / 5 - 7)

After he exited his vehicle, you instructed him to walk to the rear of his vehicle? (30 / 12 - 14)    

And your report states, “As Mr. X walked (to the rear of his truck), he used the bed of his pick-up truck for support.” (31 / 15 - 18)

Is that what your complete and accurate reports says?    

Now, he didn’t tell you that he was using the bed of his truck for support, did he? (“No.” 31 / 19 - 21)

By “using the bed for support,” you mean he had his left hand on the bed of his pick-up truck as he walked to the rear of his vehicle?    

You never told him not to put his left hand on the bed of his pick-up truck as he walked to the rear of his vehicle, did you?

And you did not conclude that he was impaired by alcohol because he put his hand on the bed of his truck, did you?    

He had a Chevy 350 racing engine in the back of his pick-up truck? (32 / 3 - 4)

Now, Officer, you are obviously young and in very good shape. You wouldn’t disagree with the fact that a lot of people are just sore and hurting at the end of a long day, would you?    

A lot of people are just sore and hurting when they exit a vehicle, aren’t they?

And you don’t know if Mr. X was sore and hurting when he walked to the rear of his vehicle, do you?

15. (§14.90) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

You administered certain roadside agility exercises to Mr. X on the night of his arrest?

Do you agree that the National Highway Traffic Safety Administration is an authoritative source of information regarding field sobriety testing? (“Yes.” 60 / 12 - 16)

Would you also agree that NHTSA based SFST procedures are reasonably relied upon by police officers when forming inferences and opinions regarding a subject’s blood alcohol concentration? (60 / 17 - 21)    

And your SFST training was done pursuant to standards and procedures established by the National Highway Traffic Safety Administration? (60 - 61)

You would agree that the instructional, administrative, and scoring protocol as defined by NHTSA with respect to field sobriety testing must be followed in order to ensure the validity of your purported test results? (“Yes.” 61 / 3 - 8)    

And you would also agree that NHTSA publications regarding field sobriety testing are considered to be authoritative sources of information by police officers such as yourself?

And you do not consider yourself free to deviate from NHTSA standardized protocol, do you? (“No.” 74 / 17 - 20)    

a. (§14.91) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions-- Horizontal Gaze Nystagmus HGN Test-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

OK, one of the so-called “tests” that you administered is the Horizontal Gaze Nystagmus Test? (51 / 19 - 22)

What is horizontal gaze nystagmus? (an involuntary jerking of the eyes as they gaze toward the side).

You claimed to have observed six HGN clues, correct?    

Do you dispute the fact that according to NHTSA research, six HGN clues have been observed in subjects with BACs as low as—BAC is blood alcohol concentration—with BACs as low as .05?

So you have no basis to dispute that, correct?    

Nystagmus may be due to causes other than alcohol consumption?

Please describe your training in administering the HGN test. (Police officer must be adequately trained and able to properly administer the test (eight hours training required on the HGN), State v. Hill, 865 S.W.2d 702, 704 (Mo. App. 1993), rev’d on other grounds, State v. Carson, 941 S.W.2d 518, 520 (Mo. 1997).)    

(1) (§14.92) Horizontal Gaze Nystagmus HGN Test Conditions

You administered the HGN at night, correct?

You administered the test roadside after you pulled him over?    

Was Mr. X facing toward your vehicle or away from your vehicle when you performed the test?

Was he standing in a position where he could see the lights of any vehicles? (No.)    

He couldn’t see either the headlights or the taillights of any other vehicles where he was standing? (Probably the headlights.)

—Subject must always be made to face away from flashing or strobe lights to avoid stimulation of artificial jerking of the eyes due to the light. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor Manual, VIII-56.    

Was it windy that night?

—Wind, dust, or other eye irritants may interfere with performance on the HGN. 1995 NHTSA Instructor Manual, VIII-65; 2000 NHTSA Instructor Manual, VIII-56.     Describe the traffic conditions on the road where the test was conducted—e.g., was it an expressway where the traffic was heavy and moving in close proximity to the subject?

(2) (§14.93) Horizontal Gaze Nystagmus HGN Pretest    

Your stimulus, or stylus, for the HGN was a pen, correct?

Did you hold the stimulus at eye level or above eye level to perform the HGN test? ( “Position the stimulus approximately 12–15 inches from the suspect’s nose and slightly above eye level.” (2002 NHTSA Student Manual, VIII-6))    

How far away did you hold the stimulus when conducting the HGN test? ( “Position the stimulus approximately 12–15 inches from the suspect’s nose and slightly above eye level.” (2002 NHTSA Student Manual, VIII-6))

What instructions did you give my client prior to the HGN test? (Instructions: “I am going to check your eyes.” “Keep your head still and follow this stimulus with your eyes only.”)    

“Keep following the stimulus with your eyes until I tell you to stop.” ( 2002 NHTSA Student Manual, VIII-6)

When you administered the HGN to my client, you told him to keep his head still, correct?    

According to the NHTSA standardized protocol, my client had to keep his head perfectly still during the HGN test in order for the HGN conclusions to be valid, correct?

Holding the head perfectly still is one of the standardized elements of the HGN, correct?    

Your HGN results would be invalid if the head was not held still, correct?

According to your report, my client swayed during your administration of the one-leg stand test, finger-to-nose test, and walk and turn test, correct?    

So he held his head perfectly still during the HGN test but swayed during the other exercises you recorded, is that correct?

Did you note in your report whether he was wearing glasses?    

Did you allow him to remove them prior to the test?

Did you note in your report whether he had contact lenses?    

Did you pretest my client to make sure he was an eligible candidate for the test prior to administering the test? (“Yes.”)

Please describe the clues you are instructed to look for in the pretest prior to performing the HGN test to ensure he was an eligible candidate for the test. (Prior to administering HGN test, officer must check subject’s eyes for equal tracking and equal pupil size. ( 2002 NHTSA Student Manual, VIII-5))    

So you pretested for pupil size and equal tracking of his eyes prior to administering the HGN test for the three clues?

Describe the procedure you use for pretesting for pupil size and equal tracking. (pretest pass for equal tracking and pupil size is at least one pass of the stimulus in front of the subject eyes prior to looking for the three clues.)    

Were his pupils the same size?

Did his eyes track equally to your stimulus during the pretest?    

How many passes with the stimulus did you make for the pretest?

What speed did you use for the stimulus during the pretest passes? (Must be even speed of two seconds out from nose to side and two seconds back for each pass utilized. Move the stimulus “20 degrees per second.” (2000 NHTSA Instructor Manual, VIII-18)—i.e., two seconds out from center to side, and two seconds back from side to center).    

After the pretest, you determined my client was an eligible candidate for the test?

(3) (§14.94) Horizontal Gaze Nystagmus Clue #1-- lack of smooth pursuit     

And you then administered the test looking for the three clues of the HGN test?

What are the three clues you were looking for? (lack of smooth pursuit, distinct nystagmus at maximum deviation, and Onset of Nystagmus Prior to 45 Degrees)    

Beginning with the first clue of lack of smooth pursuit, which eye did you begin with? (Always begin with subject’s left eye. 1995 NHTSA Instructor’s Manual, VIII-20)

Where on my client’s face did you begin checking for the first clue?    

At the center of his face or to the side?

If you started at his nose or the center of his face, describe how far out you took the stimulus to the side.    

And then you returned to center?

How long did it take for you to move from the center of his face to your right checking his left eye? (Should take 2 seconds.)    

And from your right back to center? (Should take 2 seconds.)

Then how did you proceed? (“I checked his right eye for the first clue.”)    

Did you follow the same procedure for the right eye as you did for the left for the first clue of lack of smooth pursuit?

For the right eye, did you begin at the center of his face or to the side?    

If you started at his nose or the center of his face, describe how far out you took the stimulus to the side.

And then you returned to center?    

How long did it take for you to move from the center of his face to your left checking his right eye? (Should take 2 seconds.)

And from your left back to center? (Should take 2 seconds.)    

Were you done testing for the first clue at this point? (Note: entire procedure must be repeated for both eyes to test for the first clue. Must check each eye at least twice for lack of smooth pursuit. 1995 NHTSA Instructor Manual, VIII-21, 23

When moving the stimulus while testing for this first clue, did you keep it at the same distance from the subject’s face the entire time? When moving the stimulus while testing for this first clue, was the stimulus kept the entire time at eye level or above eye level? (Must be slightly above eye level at all times.)

When moving the stimulus while testing for this first clue, was the same speed utilized throughout, or were there pauses in the motion of the stimulus?    

Demonstrate how far to the side you took the stimulus in each of your passes testing for the first clue.

When you concluded testing for lack of smooth pursuit, how did you then proceed?    

(4) (§14.95) Horizontal Gaze Nystagmus Clue #2-- Distinct Nystagmus at Maximum Deviation

Which eye did you being with when testing for the second clue of Distinct Nystagmus at Maximum Deviation?    

Where did you begin with the stimulus?

So you began at the center of subject’s face or his nose, and then presumably moved the stimulus to Maximum Deviation? Describe maximum deviation. Or demonstrate it please.

How long did you hold the stimulus at maximum deviation when testing for this clue? (Must hold a minimum of four seconds.)    

Describe the nystagmus you observed in the subject’s left eye at maximum deviation. (Nystagmus must be distinct and sustained.)

—Fatigue nystagmus will be evident in many sober individuals if eye is held at maximum deviation for more than 30 seconds if officer indicates stimulus was held this long.    

Did you then move the stimulus all the way across his face and check his right eye for the second clue?

How long did you hold the stimulus at maximum deviation when testing for this clue? (Must hold a minimum of four seconds.)    

Describe the nystagmus you observed in the subject’s right eye at maximum deviation. (Nystagmus must be distinct and sustained.)

—Fatigue nystagmus will be evident in many sober individuals if eye is held at maximum deviation for more than 30 seconds if officer indicates stimulus was held this long.    

After you checked his right eye for the second clue, did you then start checking for the third clue?

—Entire procedure must be repeated for both eyes so each eye is tested at least twice for the second clue.    

(5) (§14.96) Horizontal Gaze Nystagmus Clue #3-- Onset of Nystagmus Prior to 45 Degrees

What did you check for after Distinct Nystagmus at Maximum Deviation? (Onset of Nystagmus Prior to 45 Degrees.)    

Which eye did you start with when checking for this third clue?

Where did you begin with the stimulus?    

So you began at the center of subject’s face or his nose, and then presumably moved the stimulus to your right if you began by checking his left eye?

How far to your right did you move the stimulus when checking for this clue? (45 degrees is about the edge of the shoulder.)    

How many seconds did it take you to move the stimulus to 45 degrees? (Move stimulus toward officer’s right (testing left eye) at a speed that takes four seconds to reach 45 degrees (shoulder). 2002 NHTSA Student Manual, VIII-7 )

You indicated my client showed this clue in his left eye; what did you do when the nystagmus was first observed? (If you see nystagmus stop and verify the jerking continues. 2002 NHTSA Student Manual, VIII-7)    

Did my client’s eyes start jerking before the stimulus reached 45 degrees, or, in other words, the edge of his shoulder?

(If yes). Did you check to see that some white of his eyes was still showing on the side closest to the ear to verify the stimulus had not been taken past 45 degrees?     —“If the suspect’s eyes start jerking before they reach 45 degrees” (edge of shoulder) “check to see that some white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you either have taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.” ( 2002 NHTSA Student Manual, VIII-7)

How many total seconds did it take to test the left eye for this clue where you allegedly observed nystagmus? (Must be four seconds plus the time officer is instructed to stop to verify that the nystagmus continues.)    

Did you immediately return back to his center and begin testing the right eye?

So you began at the center of subject’s face or his nose, and then moved the stimulus to your left to check his right eye?    

How far to your left did you move the stimulus when checking for this clue? (45 degrees is about the edge of the shoulder.)

How many seconds did it take you to move the stimulus to 45 degrees? (Move stimulus toward officer’s left (testing right eye) at a speed that takes four seconds to reach 45 degrees (shoulder). 2002 NHTSA Student Manual, VIII-7 )    

You indicated my client also showed this clue in his right eye; what did you do when the nystagmus was first observed? (If you see nystagmus stop and verify the jerking continues. 2002 NHTSA Student Manual, VIII-7 )

Did my client’s eyes start jerking before the stimulus reached 45 degrees, or, in other words, the edge of his shoulder?    

(If yes) Did you check to see that some white of his eyes was still showing on the side closest to the ear to verify the stimulus had not been taken past 45 degrees?

—“If the suspect’s eyes start jerking before they reach 45 degrees” (edge of shoulder) “check to see that some white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you either have taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.” ( 2002 NHTSA Student Manual, VIII-7)    

How many total seconds did it take to test the right eye for this clue where you allegedly observed nystagmus? (Must be four seconds plus the time officer is instructed to stop to verify that the nystagmus continues.)

What did you do then?

Did that conclude your check of each eye for the third clue? (Must repeat the entire procedure for both eyes for this clue. 2002 NHTSA Student Manual, VIII-7 )    

Did that conclude the HGN test?

b. (§14.97) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions-- The walk and turn WAT Test-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

You also administered a roadside agility maneuver called the Walk & Turn exercise, correct?

And you administered this exercise just inside the entryway to the neighborhood just east of X Road , correct?

And there were no street lights in that area where you administered this agility maneuver, were there? (74 - 75)    

The closest light was on the gate as you entered the neighborhood? (75 / 4 - 6)

And he performed these exercises approximately 50 feet east of that gate? (29 / 7 - 9)    

This exercise required him to walk heel to toe?

You didn’t give him an opportunity to practice this exercise, did you? (77 / 19 - 22)    

You don’t know anyone who normally walks heel-to-toe, do you? (77 / 22 - 24)

What kind of line did you use? A real one or an imaginary one?    

I see from your report that you counted it against him because he started the test before you finished with your instructions? (75 / 18 - 21)

You didn’t tell him it would count against him if he started the test before the instructions were finished, did you? (76 / 1 - 7)    

People generally do better on tests when they know what they’re being tested on, don’t they?

You had him take these heel-to-toe steps up and down an imaginary line, correct? (71 / 15 - 18)    

Was this a line that he was imagining or a line that you were imagining? (“A line that he was imagining.” 71 / 19 - 21)

How wide was his imaginary line? (“I don’t know.” 72 / 1 - 3)    

How wide was your imaginary line? (“About six inches.” 72 / 4 - 5)

The color of your imaginary line was white? (“ . . . white.” 72 / 10 - 12)    

Was his imaginary line was also white? (“I don’t know.” 72 / 13 - 14)

Isn’t it true, Officer, that according to the National Highway Traffic Safety Administration, this particular exercise is supposed to be administered on a designated, visible line and not an imaginary line?    

If he denies, use demonstrative : “A Straight line must be clearly visible on the surface.” HS 178 R7/91 VIII-18. An officer may now use an imaginary line in some instances, 2002 NHTSA Instructor Manual, VIII-36, but a “visible straight line should exist if possible,” 1992 NHTSA Instructor Manual, VIII-36.

So, you would agree that you did not administer the WAT exercise in a manner consistent with NHTSA protocol regarding the line to be used, did you?    

And you have already testified that the instructional, administrative, and scoring protocol as defined by NHTSA with respect to field sobriety testing must be followed in order to ensure the validity of your purported test results, haven’t you?

And we know that you did not adhere to standardized protocol during the administration of the WAT exercise, did you?    

Please describe the type of surface that the walk and turn should be conducted upon. (Test Conditions. Walk and turn“should be conducted on a reasonably dry, hard, level, nonslippery surface.” 2002 NHTSA Student Manual, VIII-11).

Please describe the type of surface that the walk and turn was actually conducted on.    

Would you say these photos are a fair and accurate representation of the scene where the testing was conducted? (Use photos of the scene to show steep grade, lack of light, heavy traffic, lack of actual line, etc.)

There was (rain, snow, gravel, debris, heavy wind, lack of light, etc.) where the testing was conducted that night, isn’t that correct?    

NHTSA instructs that the walk and turn test is not valid for all individuals, doesn’t it?

Can you please name some types of individuals you are instructed by NHTSA not to give the test to?    

You don’t know?

Did you ask my client his age prior to administering the walk and turn?    

Did you know he was over 65? (Not valid for age 65 and over. Subject should only do the HGN. 1995 NHTSA Student Manual, VIII-21, 1995 NHTSA Instructor Manual, VIII-52)

But you gave him the test anyway, didn’t you?    

Would you agree that my client is at least 75 pounds overweight? (The WAT is not valid for people more than 50 pounds overweight. 1992 NHTSA Instructor Manual, VIII-54)

But you gave him the test anyway didn’t you?    

(If female) My client was wearing high heels on the night of the incident, wasn’t she?

And you did not give her the opportunity to remove them prior to performing the test, did you? (High-heeled shoes over two inches in height? (If so, “should be given the opportunity to remove their shoes.”) 2002 NHTSA Student Manual, VIII-11)    

Please describe to me in detail how you administered the walk and turn test to my client, and also describe in detail the instructions you gave him.

—Instructions officer must give (2002 NHTSA Student Manual, VIII-9)    
—Instructional Phase—“Place your left foot on the line.” Demonstrate. “Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.” Demonstrate. “Place your arms down at your sides.” Demonstrate. “Keep this position until I tell you to begin. Do not start to walk until told to do so.” “Do you understand the instructions so far?” Make sure suspect indicates understanding.

—Walking Phase—“When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.” Demonstrate three heel to toe steps. “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot like this.” Demonstrate. “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.” “Once you start walking, don’t stop until you have completed the test.” “Do you understand the instructions?” Make sure subject understands. “Begin, and count your first step from the heel-to-toe position as ‘one.’”    

Were those your complete instructions? (Keep asking this until officer says yes.) (Go over all instructions above he omits.)

When you were giving the instructions, did you at any time demonstrate part of the test?     Please describe.

How long did you spend demonstrating the test?    

Did you put him in the instructional stance while demonstrating how he should perform the test?

Nothing in your complete and accurate report indicates he could not hold this awkward stance while you were demonstrating what he should do, does it?    

How many steps did you take while giving his demonstration of how to perform the test?

What step did you begin with?    

Did you show him how you expected him to pivot to perform the test the way you wanted?

What foot was down when you pivoted and which foot did you turn with?    

NOTE: To properly perform the test, the turn should always be to the left if the subject has taken the correct number of steps. 2002 NHTSA Student Manual, VIII-9. If the officer demonstrates an incorrect number of steps, which causes him to pivot on his right foot and turn to the right, the demonstration is invalId.

He completed the test, didn’t he?    

He did not step off the line three or more times, did he?

You did not terminate the test because he was in danger of falling, did you?    

Your report indicates that he took the correct number of steps, nine out and nine back, is that correct?

So that indicates he ended the first nine steps on his left foot and pivoted around as you instructed to the left before completing the nine steps back?    
Your report does not indicate that Mr. X did not properly count out all of his steps out loud, does it?

So he properly counted a total number of 18 steps while walking for you, didn’t he?    

Your report indicated he stopped while walking. How many times did he stop?

You don’t remember, do you?    

Your report does not indicate where he stopped, does it?

When he stopped did he pause several seconds or was he merely walking slowly?    

Your report also indicated that he did not touch heel-to-toe, but it is not clear on which steps he failed to maintain heel-to-toe.

Did he maintain heel-to-toe on any steps?    

Do you remember how many times he failed to touch heel-to-toe?

On the steps he allegedly broke heel-to-toe, describe the space he left between his feet for you to mark this clue against him.    

My client does not actually have to touch heel-to-toe on every step, does he?

And you are instructed under your training not to mark this clue against him if there is a space of up to one-half an inch on any step, isn’t that correct?    

He actually passed this clue based on your testimony today didn’t he?

Your report also indicates he stepped off of the line, correct?    

The imaginary line he was walking, you testified you don’t remember how wide it was, and that it didn’t actually exist, correct?

You don’t remember if he actually took one foot completely off of this imaginary line, do you?    

Your report indicates that he used his arms to balance while walking.

Please describe how he used his arms for balance. (“He raised his arms slightly from his sides throughout the test.”)    

NHTSA instructs that a subject is allowed to slightly use their arms for balance during the walk and turn test, doesn’t it?

And further, that this clue is not to be recorded against subject unless one or both arms are raised more than six inches from his or her side at any time during the test in order to maintain balance, doesn’t it?    

And you testified that he raised his arms slightly throughout the test, didn’t you?

And you marked this clue against him even though he is allowed to raise his arms in the way you testified, didn’t you?    

So he actually passed the walk and turn test, didn’t he?

c. (§14.98) Other Examples of Cross Examination Questions for the walk and turn WAT Test     

You’ve heard prior testimony in relation to this matter that Mr. X is blind in his left eye, haven’t you?

Use demonstrative .     Would you kindly read to the jury the last sentence of this poster?

“Individuals who can not see out of one eye may also have trouble with this test because of poor depth perception.” (HS 178 R/791 VIII-18) (Non-hearsay—Adoptive Admission)    

So, it would appear, Officer, that not only did you administer the WAT exercise improperly, that exercise never should have been administered at all for reason of Mr. X’s blindness, correct?

d. (§14.99) Examples of Standardized Field Sobriety Testing SFST Cross Examination Questions-- The One Leg Stand OLS Test-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

OK, now, you also administered a one-leg stand exercise, correct? (79 / 16 - 18)    

This exercise required him to stand with one foot elevated six inches off the ground for 30 seconds?

And you didn’t give him an opportunity to practice this exercise either, did you? (80 - 81)    

And you would agree that balancing on one leg isn’t an activity that most people have a lot of experience doing, is it?

For example, you have probably seen many, many people waiting at street corners to catch a bus, correct? (81 / 16 - 18)    

And you have never seen anyone standing on a street corner waiting to catch a bus balancing on one leg, have you? (81 / 19 - 22)

You would agree that balancing on one leg is not routine or usual human behavior, is it, Officer? (81 / 23 - 25)

But driving a motor vehicle is an activity that most people have a lot of experience doing, isn’t it? (82 / 1 - 4)    

Help me out on one other point, Officer. You would agree that one of the standardized elements of the horizontal gaze nystagmus test is that the subject must hold his head relatively still in order to ensure the validity of the HGN test results? (80 / 13 - 18)

I note from your complete, accurate, and truthful report that during your administration of this OLS exercise, you noted a “three-to-four inch front to back sway” and a “five plus inch side-to-side sway.” Is that correct, Officer? (80 / 7 - 12)    

So, in other words, during your administration of the HGN test, you did not notice this “three-to-four inch front to back sway” and you did not notice this “five plus inch side to side sway,” did you?

There was (rain, snow, gravel, debris, heavy wind, lack of light, etc.) where the testing was conducted that night, isn’t that correct?    

NHTSA instructs that the one-leg stand test is not valid for all individuals, doesn’t it?

Can you please name some types of individuals you are instructed by NHTSA not to give the test to?    

You don’t know?

Did you ask my client his age prior to administering the One Leg Stand?    

Did you know he was over 65? (Not valid for age 65 and over. Subject should only do the HGN. 1995 NHTSA Student Manual, VIII-21, 1995 NHTSA Instructor Manual, VIII-52)

But you gave him the test anyway, didn’t you?    

Would you agree that my client is at least 75 pounds overweight? (The OLS is not valid for people more than 50 pounds overweight. 1992 NHTSA Instructor Manual, VIII-54)

But you gave him the test anyway, didn’t you?    

(If female) My client was wearing high heels on the night of the incident, wasn’t she?

And you did not give her the opportunity to remove them prior to performing the test, did you? (High-heeled shoes over two inches in height? If so, “should be given the opportunity to remove their shoes.” 2002 NHTSA Student Manual, VIII-11)    

Did you administer the one leg stand test in the same location as the HGN and walk and turn?

Which direction was he facing?    

Toward the lights or away?

How far away from him were you standing when you administered the test? (3–4 feet) (Officer must limit movements that would distract subject during the test. 2002 NHTSA Student Manual, VIII-13)    

Where were you in relation to his body while he performed the test?

Please give the instructions exactly as you remember giving them to my client for this test.    

—Instruction Phase “Please stand with your feet together and your arms down at the sides, like this.” Demonstrate. “Do not start to perform the test until I tell you to do so.” “Do you understand the instructions so far?” Make sure subject indicates understanding. 2002 NHTSA Student Manual, VIII-12

—Balance and Counting Phase “When I tell you to start, raise one leg, either leg, approximately 6 inches off the ground foot pointed out.” Demonstrate leg stance. “You must keep both legs straight, arms at your sides.” “While holding that position, count out loud in the following manner: ‘one thousand and one, one thousand and two, one thousand and three, etc.’” “Keep your arms at your sides at all times and keep watching the raised foot.” “Do you understand?” Make sure subject indicates understanding. “Go ahead and perform the test.” (Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.) 2002 NHTSA Student Manual, VIII-12    

Were those your complete instructions? (Keep asking this until officer indicates the instructions were finished)

He was able to complete the test by NHTSA’s standards, wasn’t he?    

Meaning he did not put his foot down three or more times?

But you checked the box that he put his foot down. So it was at least once but less than three times?    

Where in your report does it indicate on what count he put his foot down?

Where in your report does it indicate how many times he put his foot down?    

You don’t remember with certainty the answer to either of these questions, do you?

Your report indicates that he used his arms for balance? (“He raised his arms slightly throughout the test”)    

But you don’t remember on which count he raised them, do you?

Like the walk and turn test, NHTSA instructs that he may use his arms for balance as long as they are not raised above six inches, doesn’t it?    

Can you state with certainty on what counts, if any, he raised his arms more than six inches?

Please indicate in your report where it states this.    

How many arrests would you estimate you have made since the night you tested my client?

Nowhere in your report does it indicate he resorted to hopping, does it?    

And we already established that he was able to not sway during the HGN test, but you are claiming he was swaying during this test?

We established through your report and your testimony today that he completed the test?    

So that means he completed thirty seconds, correct?

Was he counting fast or slow?    

Did he count clear to 30 himself?

Do you remember what number he counted to before you terminated the test?    

You don’t remember, do you?

Please indicate in your report where it states he counted to 30.    

Did you keep track of the thirty seconds yourself?

What type of shoes was he wearing?    

Please indicate where it states that in your report.

Can you balance on one leg for 30 seconds?    

(If no) Would that be a valid indicator that you are impaired by alcohol today?

Do you believe that any person on this jury should be able to balance on one leg for 30 seconds, Officer?    

If they couldn’t, would you would bust them for DWI right now wouldn't you?

16. (§14.100) Examples of Cross Examination Questions: Blood Alcohol Content (BAC) Correlation With Time-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

OK, it’s your testimony under oath that you heard slurred speech coming from the mouth of Mr. X on the night of _______________________?

Now, you are a certified operator for the Intoxilyzer 5000 breath testing device? (44 / 3 - 7)

And you had to take a class to achieve this certification? (44 / 8 - 10)    

In that class they also teach you some of the fundamentals about how alcohol affects the human body? (44 / 16 - 19)

Based on your training and experience, you know that most subjects will not demonstrate slurred speech until their blood alcohol level reaches .18 or higher, correct? (“I don’t recall that fact specifically, but it sounds consistent with my training, yes.” 44 / 20 - 25)    

Now, Mr. X is a 165 pound male, correct? (45 / 8 - 9)

And, based on your training and experience, you would agree that a 165 pound male will have a blood alcohol contribution of approximately .025 grams of alcohol for each beer consumed? (“I would have no basis for argument.” 45 / 15 - 20)    

Now, for a 165 pound male to reach a blood alcohol level of .18, he would have had to consume at least 7 or 8 beers, correct? (“No basis to disagree.” 45 - 46 & 46 - 47)

So, Mr. X would have had to consume at least 7 or 8 beers in order to reach a blood alcohol level where he would be expected to demonstrate slurred speech, wouldn’t he? (“I have no basis for arguing.” 47 / 3 - 8)     My client was stopped at 9:35 P.M. , wasn’t he? (47 / 8 - 9)

And he was continuously in your custody for well over two and one-half hours, correct? (47 / 23 - 25)    

And in the two and one-half hours that he was in your custody, he never one time asked to relieve himself, did he? (“I don’t believe he relieved himself in my custody.” 48 / 6 - 12)

And in the two and one half hours he was in your custody, he never did relieve himself, did he?

17. (§14.101) Examples of Cross Examination Questions: Timing of Events-- in Missouri DUI / DWI /BAC or Other Drunk Driving Cases

Officer, you do wear a wristwatch, don’t you?

That watch keeps accurate time?

And you were wearing your watch on the night of my client’s arrest?    

So, we can assume that the times listed in your complete and accurate report are also complete and accurate?

According to your complete and accurate report, you first observed my client going northbound on X Road at 2135 hours?    

That would be 9:35 P.M. civilian time?

Then, according to your complete and accurate report, “Given the totality of the driving, demeanor, odor of alcohol, and performance on the field sobriety tests, I felt he was impaired. At 2140 hours, I placed Mr. X under arrest . . .”    

Is that what your report says, Officer?

Now, 2140 hours is 9:40 P.M., correct?    

So, if your report—and your testimony under oath before this jury—is to be believed:                   

You made your initial observation of his vehicle.

You followed him for two miles.

You initiated your investigatory stop.

He turned into his neighborhood and parked his truck.

You exited your motorcycle and approached his vehicle.

You asked for and reviewed requested documentation.

You asked him a series of questions.

You administered an HGN test.

You administered a WAT exercise.

You administered an OLS exercise.

And all of those events transpired in a matter of 5 minutes, correct?

Thank you.