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
