Field Sobriety Tests in West Virginia

To Submit to the FSTs or not, that is the question?

Every single case is different but as a general rule, there is no legal penalty for refusing to submit to the field sobriety tests in West Virginia. Because there is no legal penalty, I recommend that people politely decline to submit to the tests. If your case goes to trial, the state is usually allowed to have the jury instructed that your refusal is slight evidence of a guilty conscience. However, if you submit to the tests, no matter how you think you can do on them, chances are that the officer will find that you have failed.

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What Are Field Sobriety Tests?

FSTs are psychophysical tests used to assess a person's physical and/or mental impairment. FSTs are also known as "divided attention" tasks. They require a person to concentrate on more then one task at the same time. To safely drive a car, a person needs to be able to simultaneously control steering, braking, and acceleration; react to a constantly changing driving environment; and perform many other tasks. Alcohol, in varying amounts, affects one's ability to adequately divide attention, thus possibly causing a driver to concentrate on more difficult tasks while ignoring simpler ones (i.e. ignore a traffic signal while concentrating on one's speed). Even if impaired, most people can successfully concentrate on a single task fairly well, but when impaired, most drivers cannot successfully divide their attention between multiple tasks at once.

Divided attention tasks are designed to evaluate mental and physical. They include information processing; short-term memory; judgment and decision making; balance; steady, sure reactions; clear vision; small muscle control; and coordination of limbs. A good FST will combine any two or more of these capabilities simultaneously. A test must also be reasonably simple for the average non-intoxicated person to perform.

The most common FST's used by the police include the Horizontal Gaze Nystagmus, Walk & Turn, and the One Leg Stand. These three tests, referred to as the Standardized Field Sobriety Test Battery, have been validated as reliable indicators of impairment by the National Highway Traffic Safety Administration (NHTSA), although they are not 100% accurate.

These three are the only tests validated by NHTSA. Validation simply means these three tests have been subjected to evaluation and refinement in order to ensure that they provide useful information regarding the possible intoxication of a driver. Unfortunately, the validation studies conducted by NHTSA were flawed in that the researchers failed in many respects to ensure proper scientific reliability. This information will not be conceded by most prosecutors, expert witnesses, or police officers, but the flaws exist and an honest expert in the area of field sobriety testing can clearly demonstrate the flaws and why they are important.

Other commonly used, but non-validated, tests include counting backwards, saying the alphabet (or a portion of it), finger count, and the stationary balance (Rhomberg) tests.

In reference to the three standardized FST's, the government has admitted, and it is printed in the police officer’s DUI training manual, that "IT IS NECESSARY TO EMPHASIZE THIS VALIDATION ONLY APPLIES WHEN: THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARD MANNER; THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE; THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED."

It is also important to understand that field sobriety tests rely on the person doing them not having a chance to practice. The officer’s training manual also states that the sensitivity of the tests is lost if the person performing them has a chance to do them more than once. Of course, that makes a lot of sense. You are expected to perform these tests with military-style precision, but you are not given a chance to practice, nor are you ever told what is necessary in order to pass the tests. If you knew what you had to do to pass and had a chance to practice, the tests would be almost useless to the officer. So, field sobriety testing is just like taking a pop quiz on a subject you know nothing about. Our advice - don’t take the tests!

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Horizontal Gaze Nystagmus (HGN)

This test refers to the involuntary jerking of the eye as it moves from side to side (horizontally). When this occurs, the person is unaware of the jerking, and cannot control it. This involuntary jerking becomes noticeable as persons' blood alcohol increases. This is the most reliable of the FST's. However, nystagmus is a natural, normal phenomenon present in nearly every human. While it is true that alcohol can cause nystagmus, courts all around the country have recognized at least 38 separate causes of nystagmus that have nothing to do with alcohol consumption.

When the HGN test is properly administered, the officer first should have the suspect remove glasses or contact lenses. Next, he should verify that the suspect’s eyes, 1) track equally, and 2) the pupils are of equal size. Equal tracking is checked with an initial pass of a stimulus (something for you to focus on), usually a pen or fingertip, 12-15 inches in front of the suspect’s eyes at a position just slightly above eye level and asks the suspect to follow it with his eyes while keeping his head still. The movement is fairly quick - 1 second to move the stimulus horizontally to a 45 degree angle towards the suspect’s left eye first, back to center, out to a 45 degree angle towards the right eye, and back to center. If the test is properly given, the officer should also check pupil size at the end of the initial pass with the stimulus. In the event the eyes do not track equally or the pupils are not equal in size, the test is not to be given as those conditions suggest a medical problem that could produce inaccurate test results.

After the initial screening is done, the officer begins checking for the three validated clues of impairment. The officer is supposed to always start with the suspect’s left eye, and looks for the three clues over the course of the test. Each clue is checked by making two passes for each clue. A single pass is defined as beginning in front of the suspect’s nose, moving the stimulus to the suspect’s left to the designated angle, back across center to the suspect’s right to the designated angle, then returning the stimulus to the center. Each clue is to be checked for in succession and the officer is not to check for multiple clues on a single pass.

They three clues are, in order:

• Lack of Smooth Pursuit: As the eye moves from side to side, does it move smoothly or does it noticeably jerk (bounce)? The officer is supposed to use a standardized pace when moving the stimulus from side to side, covering the distance from center to the 45 degree angle in approximately two seconds, then two seconds back to center, approximately two seconds to the other side, and two seconds back to center. If the officer moves the stimulus too fast, not only is the test being given improperly, but NHTSA has admitted that such quick movement of the stimulus may cause false nystagmus.

• Distinct Nystagmus at Maximum Deviation: When the eye moves far enough to the side so no white is showing in the corner and is kept in that position for four seconds, the officer is checking to see if there is distinct nystagmus. If nystagmus is observed, the officer is to briefly continue holding the stimulus in place to observe that the nystagmus continues. Some people exhibit slight jerking of the eye at maximum deviation even when unimpaired as a result of fatigue nystagmus, a condition that appears when eye gets tired.

• Onset of Nystagmus Prior To 45 Degrees: As the eye moves towards the side, does it start to jerk (bounce) before it reaches a 45-degree angle? During this phase of the HGN, the movement of the stimulus should take approximately 4 seconds to reach 45-degrees. If nystagmus is observed prior to 45 degrees, the officer is to stop the stimulus in place and observe briefly to ensure that he is seeing nystagmus. Upon seeing nystagmus prior to 45 degrees, the officer is to move to the remaining eye and start checking it. Again, this clue, like the others, is to be checked two times.


The maximum number of clues in each eye is 3, for a total of 6 clues. The original NHTSA research has shown that if 4 or more clues are present, the person is impaired. This test has been shown to be accurate 77% of the time; therefore, it is inaccurate 23% of the time! The other shortcoming of the training provided to officers is that they are only taught to conclude that the suspect is drunk if nystagmus is observed - they do not normally account for the possibility that one of the other 38 causes may be the reason nystagmus is present.

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Walk & Turn (WAT)

This divided attention test consists of two parts - the instruction phase and the walking phase. During the instruction phase, the suspect must stand on a line (real or imaginary) with the right foot directly in front of the left foot, touching heel to toe, also keeping the arms at the side, while listening to the instructions. The suspect’s attention is divided between keeping balance and listening to and remembering the instructions. Breaking away from the heel to toe stance during the instructions will result in the officer assessing a decision point against you. Only one point is allowed before the test is failed.

During the walking phase, the suspect is asked to take 9 heel-to-toe steps, turn in a prescribed manner; and take 9 heel-to-toe steps back, while counting the steps out loud. The walking phase divides a suspect's attention between keeping their balance, counting out loud, taking the proper number of steps, touching heel to toe, staying on the line, and turning in the prescribed manner, while also keeping their arms no more than six inches from their side.

The officer is looking for 8 specific clues:

• Loses balance during instructions (breaking away from the heel-to-toe stance)
• Starts too soon (starting before the instructions are completed and the command is given to start the test)
• Stops while walking (once the suspect begins to walk, he is required to continue moving until the test is complete)
• Doesn't touch heel-to-toe (this must occur on every step)
• Steps off line (this includes losing balance and losing contact with the line)
• Uses arms for balance (the suspect is allowed to raise his arms no more than six inches from his side - in reality, any movement of the arms will be counted against the suspect)
• Loses balance on turn or turns incorrectly (not turning as instructed)
• Takes the wrong number of steps (more or less than 9 steps each direction)
•
The original NHTSA showed that if 2 or more clues are present, the person is intoxicated. This test has been shown to be accurate 68% of the time; therefore, it is inaccurate 32% of the time!

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One Leg Stand (OLS)

This divided attention test also consists of two phases - the instruction phase and the balance & counting phase. During the instruction phase, the suspect must stand with feet together, keeping the arms at the sides while listening to the instructions. One's attention is divided between keeping their balance and listening to and remembering the instructions.

During the balance & counting phase, the suspect must raise one leg, the suspect’s choice, approximately 6 inches off the ground, arms at the sides, toes pointed out, and looking down at the raised foot. While looking at the foot, the suspect is to count “1001, 1002, 1003,” and so on until told to stop. The test is to last for 30 seconds and the officer is supposed to time the test. During the test, if at any time the suspect puts his foot down, he is instructed to pick it back up and continue counting where he left off. However, if the suspect puts his foot down three times, the officer is to stop the test, score it as if all four decision points were scored, and note that the test was failed.

The officer is looking for 4 validated clues:

• Sways while balancing (this means any visible movement, no matter how slight)
• Uses arms for balance (raising the arms more than six inches from the sides)
• Hops (this one is pretty self-explanatory)
• Puts foot down (also self-explanatory)
•
The original NHTSA research has shown that if 2 or more decision points are scored (i.e. putting foot down 1 time and hopping), the person is intoxicated. This test has been shown to be accurate 65% of the time; therefore, it is inaccurate 35% of the time!

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Counting Backwards (not a validated test)

This divided attention test requires a suspect to count out loud, normally in reverse order. For example, the suspect is instructed to count starting with 56 and ending with 28. This divides the suspect’s attention because he has to remember what number to start with, count backwards correctly, and remember what number to stop on. Anything other than 100% perfection will be viewed as a sign of intoxication.

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Alphabet (not a validated test)

This test requires a suspect to recite a portion of the alphabet. For example, the officer instructs to start with a specific letter, D, and stop at a specific letter, T. This divides the person's attention because they have to remember the specific letter to start with, say the letters in sequence and in a manner most of us do not normally say the alphabet, and remember the letter to stop with. Anything less than 100% perfection will be viewed as a sign of intoxication.

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Finger Count (not a validated test)

This test requires a suspect to touch the tip of each finger in succession to the tip of his thumb, up and back, while counting 1, 2, 3, 4, .. 4, 3, 2, 1. He must touch each fingertip to his thumb and not count out of order. Anything less then 100% perfection will be viewed as a sign of intoxication.

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Stationary Balance (i.e. Rhomberg) (not a validated test)

This test requires a suspect to stand with heels and toes touching, tilting the head back to look up at the sky or ceiling while holding his arms straight out to the side (parallel to the floor or ground) and estimate 30 seconds. The officer looks for any unnatural sway. Generally any sway is assumed to be caused by intoxication. Also, if the time estimation is not close to 30 seconds, this will be viewed as a sign of intoxication.

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Try the Tests Yourself

Try these Field Sobriety Tests at home with someone evaluating you and contact me with your results. Being sober, how many tests did you fail and how badly did you fail them?

Even though officers regularly testify that all non-intoxicated people should be able to successfully perform Field Sobriety Tests (i.e. they are 100% reliable), NHTSA, through the original validation research, has acknowledged that:

• These tests lose their sensitivity if repeated
• Sober people have difficulty with balance
• Leg problems can affect the test results
• Back problems can affect the test results
• Middle ear problems can affect the test results

• Being overweight can affect the test results
• Age can affect the test results
• Footwear can affect the test results
• Weather conditions can affect the test results

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Field Test Realities

What are the realities of performing Field Sobriety Tests? The reality is that you will be asked to perform Field Sobriety Tests in less then ideal conditions at a time you are also extremely nervous about being arrested. NHTSA has admitted that "Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results." But NHTSA did not indicate what is meant by "slight variations from the ideal" and how much "affect" that will cause. Even though the government has admitted this, police officers have consistently testified contrary to this statement, nearly always stating that the sidewalk, street, or highway shoulder where they administered these tests to my clients did not affect the results, regardless of traffic, lighting, weather conditions, or uneven, rocky surfaces.

Further, once the officer asks you to exit your car and perform these tests, he is already suspicious that you are intoxicated and he is not normally inclined to be fair and unbiased. When the police officers have their academy training, individuals sometimes volunteer to go to the training facility, get to drink as test subjects, and submit to the field sobriety tests for the trainee officers. Several aspects of the "drinking school" will be different from what you are being asked to do in the "field." First, those individuals are not nervous or scared about being stopped by the police for a violation of the law. Second, they are in a controlled environment, not outside with all the distractions. Third, they are not in fear of being arrested. These three factors alone make many non intoxicated people so nervous that they have difficulty passing field sobriety tests that are already designed to be failed.

Ideal conditions would be to perform the tests on a flat, smooth surface, inside with proper lighting, when you are not tired, with an officer who knows how to, and does, perform the tests in the prescribed standardized manner. In reality, the majority of the time people are asked to perform field sobriety tests under some or all of the following conditions:

• Early in the morning
• Nervous & scared of being arrested
• Tired from a long day
• Poor lighting conditions
• Poor weather conditions (wind, cold, rain, etc.)
• On the shoulder of a highway/street
• Standing on an uneven/slanted/cracked surface
• Dirt & debris on the surface
• Traffic driving by

• Headlights distracting you, causing you to focus more on the cars (and headlights can affect the HGN test)
• Gusts of wind caused by vehicles speeding past while you are on the shoulder of the highway (wind in your eyes can affect the HGN test, and your balance!)
• Police car strobe lights flashing, thus distracting your vision
• An officer standing in front of you shining a flashlight into your eyes
• An officer not following the prescribed, standardized manner in giving the tests and/or an officer who has prematurely made up his mind you are intoxicated and is only looking for verification (i.e. he won't give you a fair and unbiased evaluation during the tests)

Clearly, nobody can prepare for conditions such as these. And remember, these Field Sobriety Tests may lose their sensitivity if repeated several times. Thus, the police want to evaluate you the very first time you attempt the tests. Remember, the officer expects you to display military-style precision when you perform the tests, but none of us expect to see perfection when performing an unfamiliar task for the very first time!

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2006 Field Sobriety Testing Updates

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