In this section, we will discuss Ohio’s infamous “Standardized Field Sobriety Tests,” which we also know as roadside tests, or stupid human tricks. These tests are used by an investigating police officer to determine whether or not probable cause exists to believe that a driver is impaired by drugs and/or alcohol. Police officers learn the standardized field sobriety tests as they are set forth by the National Highway Traffic Safety Administration in their various manuals.

Police officers learn the Standardized Field Sobriety protocol at the academy or by completing a “Participant” class after they are sworn in. They learn three of the most common standardized field sobriety tests, which are: (1) horizontal gaze nystagmus (HGN), (2) walk-and-turn (WAT), and (3) one-leg-stand (OLS). Officers can receive additional training at the Advanced Roadside Impaired Driving Enforcement (ARIDE) class. ARIDE officers learn the Lack of Convergence (LOC) and Modified Romberg Balance (MRB) standardized field sobriety tests. Officers use their ARIDE training in cases where impairment by drugs (cannabis, narcotics, stimulants, etc.) is suspected. Law enforcement training in OVI cases includes administering and interpreting these standardized field sobriety tests. For each test, the officer looks for and records “clues” in the subject’s performance which they are told equates to an increased likelihood of impairment.

Horizontal Gaze Nystagmus Test

The horizontal gaze nystagmus test is an eye test approved by the National Highway Traffic Safety Administration(hereinafter NHTSA) as a tool to detect clues of impairment in drivers.  The HGN test is one of three psychomotor tests approved as part of the standardized field sobriety testing protocol employed by law enforcement officers throughout the United States and used here in Ohio.

HGN: What is the Science?

Nystagmus is defined as the oscillation of the eyeball that occurs when there is a disturbance of the vestibular system or the oculomotor control of the eye.  During the test, a law enforcement officer is looking for is an involuntary motion.  A person is usually unaware of the presence of a nystagmus and cannot control it. Forkiotis, C.J. Optometric Exercise: The Scientific Basis for Alcohol Gaze Nystagmus. 59 Curriculum II, No. 7 at 9 (April 1987); Good, Gregory W.  & Augsburger, Arol R. Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing. 63 Am. J. of Optometry & Physiological Optics 467, 469 (1986); Stapleton, June M. et al. Effects of Alcohol and Other Psychotropic Drugs on Eye Movements: Relevance to Traffic Safety. 47 Q.J. Stud. on Alcohol 426, 430 (1986).

The officer is looking for a type of nystagmus wherein the eye moves slowly in one direction and then returns rapidly, sometimes referred to as a jerk or jerking nystagmus. Adams, Raymond D. & Victor, Maurice. Disorders of Ocular Movement and Pupillary Function.  Principles of Neurology.  Ch.13, 117 (4th ed. 1991).

Alcohol is a central nervous system depressant affecting many of the higher as well as lower motor control systems of the body. This results in poor motor coordination, sluggish reflexes, and emotional instability. The part of the nervous system that fine-tunes and controls hand movements and body posture also controls eye movements.

When intoxicated, a person’s nervous system will display a breakdown in the smooth and accurate control of eye movements. This breakdown in the smooth control of eye movement may result in the inability to hold the eyes steady, resulting in a number of observable changes of impaired oculomotor functioning. See, Jack E. Richman & John Jakobowski, The Competency and Accuracy of Police Academy Recruits in the Use of the Horizontal Gaze Nystagmus Test for Detecting Alcohol Impairment, 47 New Eng. J. Optometry 5, 6 (Winter 1994). [Ed. Note, The citations and quotes in this DaytonDUI blog article were taken from HERE, HORIZONTAL GAZE NYSTAGMUS: THE SCIENCE & THE LAW, A Resource Guide for Judges, Prosecutors and Law Enforcement (no authorship or suggested citation given).

Nystagmus Terms at a Glance

• Vestibular nystagmus: caused by movement or action in the vestibular system (inner ear); four kinds: rotational, post-rotational, caloric and positional alcohol
• Rotational nystagmus: occurs when a person is spun around
• Post-rotational nystagmus: occurs when a person stops spiruring around
• Caloric nystagmus: occurs when liquids of varying temperatures are put in opposing ear canals
• Positional Alcohol Nystagmus: caused when alcohol alters the specific gravity of the blood versus the vestibular fluid
• Neurological nystagmus: consisting of optokinetic, physiological and gaze nystagmus
• Optokinetic nystagmus: occurs when eyes fixate on objects that suddenly move or when eyes view sharply contrasting images
• Physiological nystagmus: naturally occurring to avoid eye strain; normally too subtle to observe
• Gaze nystagmus: occurs when a person’s eyes move from a center position; three types: horizontal, vertical and resting

“Nystagmus” is a term used to describe a “bouncing” eye motion that is displayed in two ways: (1) pendular nystagmus, where the eye oscillates equally in two directions, and (2) jerk nystagmus, where the eye moves slowly away from a fixation point and then is rapidly corrected through a “saccadic” or fast movement. Raymond D. Adams & Maurice Victor, Principles of Neurology, ch.13, “Disorders of Ocular Movement and Pupillary Function,” 117 (4^th ed. 1991).  HGN is a type of jerk nystagmus with the saccadic movement toward the direction of the gaze.

An eye normally moves smoothly like a marble rolling over a glass plane, whereas an eye with jerk nystagmus moves like a marble rolling across sandpaper. Most types of nystagmus, including HGN, are involuntary motions, meaning the person exhibiting the nystagmus cannot control it. C.J. Forkiotis, Optometric Exercise: The Scientific Basis for Alcohol Gaze Nystagmus, 59 Curriculum II, No. 7 at 9 (April 1987); Gregory W. Good & Arol R. Augsburger, Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing, 63 Am. J. of Optometry & Physiological Optics 467, 469 (1986).  In fact, the subject exhibiting the nystagmus is unaware that it is happening because the bouncing of the eye does not affect the subject’s vision.

There Are Several Know Types & Causes of Horizontal Gaze Nystagmus

A major weakness in relying on the horizontal gaze nystagmus test in the criminal justice arena is that there are multiple causes of nystagmus that have been observed.  Syndromes such as influenza, vertigo, epilepsy, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, streptococcus infections, and other psychogenic disorders all have been shown to produce nystagmus. Additionally, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. Pangman. Horizontal Gaze Nystagmus: Voodoo Science. 2 DWI J. 1, 3-4 (1987).

Caffeine, nicotine and aspirin (alone or in combination with alcohol) can also lead to a nystagmus which mimics a nystagmus attributable to alcohol consumption. Id. at 3-4.  Scientific literature also points to a person’s circadian rhythms or biorhythms as having an affect on nystagmus readings as the body reacts differently to alcohol at different times in the day and even fatigue nystagmus can be found in an individual, and the list, according to critics, goes on.   Id. at 3-4; Booker, J.L.  End-position nystagmus as an indicator of ethanol intoxication. Sci Justice.  41(2):113-116. (April – June, 2001).

47 Types of Nystagmus

1. Acquired
2. Anticipatory(Induced)
3. Arthrokinetic(Induced,Somatosensory)
4. Associated(Induced,Stransky’s
5. AudioKinetic(Induced)
6. Bartel’s(Induced)
7. Brun’s
8. Centripetal
9. Cervical(NeckTorsion,Vestibular-0basilarArteryInsufficiency
10. Crcular/Elliptic/Oblique (Alternataing Windmill, Circumduction, Diagonal, Elliptic, Gyratory, Oblique, Radiary)
11. Congenital (Fixation, Hereditary)
12. Convergence
13. Convergence Invocked
14. Disaccociated, 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 (Agotropic, Geotro-Pic, Bechterew’s, Caloric, Compensatory,Electrical/Faradic/Gal Vanic, Labyrinthine, Pneumatic/Compression, Positional/Alcohol, Pseudo Caloric)

Obtained from Dr. L. F. Dell’Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Opthamology 147 (1989).  There are also 38 verified causes for a horizontal gaze nystagmus other than alcohol impairment.

38 Causes of Horizontal Gaze Nystagmus

1. ProblemsWithTheInnerEarLabyrinth
2. Irrigating The Ears With Warm Or Cold Water Under Peculiar Weather Conditions
3. Influenza
4. StreptococcusInfection
5. Vertigo
6. Measles
7. Syphilis
8. Arteriosclerosis
9. MuscularDystrophy
10. Multiple Sclerosis
11. Korchaff’s Syndrome
12. Brain Hemorrhage
13. Epilepsy
14. Hypertension
15. Motion Sickness
16. Sunstroke
17. Eyestrain
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, PCB’s, Dry-Cleaning Fumes, Carbon Monoxide
35. Extreme Chilling
36. Lesions
37. Continuous Movement Of The Visual Field Past The Eyes
38. Antihistamine Use

See Shultz v. State, 664 A.2d 60, 77 (Md. App. 1995) citing State v. Witte; State v. Clark, State v. Superior Court, and Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney’s Textbook of Medicine § § 84.63 and 84.64 (1990).

Alcohol and the Horizontal Gaze Nystagmus

Alcohol causes two types: alcohol gaze nystagmus, which includes HGN, and positional alcohol nystagmus. Although alcohol causes both, alcohol gaze nystagmus and positional alcohol nystagmus are very different and easily distinguishable. Testing for positional alcohol nystagmus is not a part of the standardized field sobriety test battery. Defendants sometimes claim or attempt to confuse matters by arguing that the nystagmus the officer saw was actually positional alcohol nystagmus and not alcohol gaze nystagmus.

Standards For Admissibility

Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

1. By clear and convincing evidence.
2. The Officer administered the tests in substantial compliance.
3. The testing standards for any reliable, credible, and generally accepted
4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  

If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual. In 2004, the Ohio Supreme Court held that, for the results of field sobriety tests to be admissible at trial, the tests must be administered in compliance with standardized testing procedures. State v. Schmitt.

In my practice we have seen a trend to manipulating the “substantial compliance” standard into a de facto prejudice standard.  The burden is being subtly shifted to the defendant to demonstrate that he or she was somehow prejudiced by the officer’s failure to comply with the NHTSA standards.  For example; if the officer does not articulate that he advised the suspect not to raise his or her arms, the Court says that he substantially complied by merely mentioning that he was trained in NHTSA protocols.  If, however, the defense points out that the officer did not give the proper instruction and still scored the test in a way negative to the defendant, the court may consider excluding some portion or all of the test.  Case law can be helpful on this point.

In State v. Clay, 34 Ohio St. 2d 250, 298 N.E.2d 137 (1973) the court ruled, “[h]owever, if by cross examination or otherwise, the defense places such compliance at issue, it then is incumbent upon the State, in order to maintain its burden of proof, to offer the methods and regulations into evidence and prove compliance.”  Some courts may try to take Judicial Notice of the manual (See Evid. R 201) when no manual was introduced.  In State v. Wells 2005-Ohio-5008 (Ohio Ct. App. 2d Dist., Montgomery County) held that the court cannot assume judicial notice when the record does not demonstrate a request for judicial notice or a reference to the manual by the trial court.

The 9th District Court of Appeals issued a great decision on the issue of substantial compliance.  Specifically, the issue involved giving the HGN test while the Defendant sat in the car.  The Court found that this was not substantial compliance. (State v. Haneberg 5/29/2007, 2007-Ohio-2561, 9th District Court of Appeals).

Validity Is Dependent On Standardization

The validity of Standardized Field Sobriety Tests results is dependent upon law enforcement practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manual states that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.

According to their own manual, the HGN, Horizontal Gaze Nystagmus test is the most reliable of the three standardized field sobriety tests.  In addition, the police are trained that the HGN achieves 77% accurate at detecting subjects at or above a .10% blood alcohol concentration.  But that is not the whole story.

Officers are not told that everyone (EVERYONE) has nystagmus. The presence of alcohol merely enhances or magnifies this natural effect. In addition, they are instructed that there are 40 different kinds of nystagmus. Yes, everyone – but that is somehow not important to their training. The fact that everyone has it and there are numerous non-impairing causes of nystagmus is deemed irrelevant in the decision to arrest someone.  Worse yet, the police officers are given no (NO!) guidance in how to distinguish between the different kinds of nystagmus.  And they get no training about what questions to ask that would help them distinguish between an impairment or a natural event.  They simply don’t care! If they see it, they will use it against you. Furthermore, courts accept this in probable cause determinations.

Drugged Driving And The Horizontal Gaze Nystagmus

Drugged Driving defense attorneys are going to have to learn about the ARIDE program.  The National Highway Traffic Safety Administration’s ARIDE course is described as a bridge between the Standardized Field Sobriety Test (SFST) and Drug Recognition Expert (DRE) courses.  ARIDE, which stands for Advanced Roadside Impaired Driving Enforcement, is a 16-hour course that claims to teach officers how to look for signs of drug impairment (drugged driving) during traffic stops.  The SFST program trains officers to identify and assess drivers suspected of being under the influence of alcohol, while the DEC/DRE program provides more advanced training to evaluate suspected drug impairment. The SFST assessment is typically employed at roadside, while an officer trained as a Drug Recognition Expert (DRE) through the DEC program conducts a 12-step evaluation in a more controlled environment such as a jail or a detention facility.

The drugged driving course begins with a review of the three SFSTs followed by a practice session and then a proficiency exam. The student has two opportunities to properly demonstrate the three tests per NHTSA standards. The student is graded by a qualified NHTSA instructor and a failure to show proficiency within two attempts (if necessary) prohibits the student from continuing on in the ARIDE course.

Once proficiency is shown, the student is introduced to the general concept of “Drugs in the Human Body” and learns about typical ingestion, effects of drugs, observable signs and symptoms of impairment, and then begins the process of learning the seven major drug categories. During this overview the student is briefly introduced to some medical conditions (see session IV, page 8-9). One (1) page of materials out of 98 pages, and about 10 minutes of class time out of 16 hours, is dedicated to the discussion of medical conditions that mimic drug impairment.

DRE, HGN and Marijuana

Drugged driving is all in the eyes according to NHTSA’s ARIDE training.  The HGN (horizontal gaze nystagmus) test confirms the possibility of the presence or absence of certain categories “on board,” as will the subjects pupil size. Lack Of Convergence (LOC) of the eyes reaches a similar conclusion. LOC is simply the inability to cross one’s eyes. However, while hailed as a valid and reliable indicator, 40% of the population lack convergence (cross their eyeballs) naturally.  These eye “conditions” or “observations” alone or in combination and their presence or absence are the primary method of identifying any single or multiple drug categories.

More and more, we are seeing law enforcement officers arrest drivers on suspicion of operating a vehicle under the influence of marijuana.  Often, an officer will request a urine test for marijuana after a defendant has blown substantially under the per se alcohol limit on a breath test machine.  This raises questions about the proper determination of probable cause.  If, for example, no alcohol was suspected how did the officer arrive deduce enough evidence to make an arrest? Were the standardized field sobriety tests administered to detect alcohol or something else?  Can the standardized field sobriety tests use in Ohio demonstrate impairment by any other drug than alcohol?

The horizontal gaze nystagmus test is not present in marijuana impairment cases. In State v. Dixon, 2007-Ohio-5189 (Ohio Ct. App. 12th Dist. Clermont County 2007), the court addressed the issue of standardized field sobriety tests and marijuana impairment.  Relying upon the NHTSA standards, the court concluded that observations as to performance on the walk & turn test and the one-leg stand test were indicative of impairment, thus allowing those to be used against a suspected marijuana user.  The HGN test, however, is not indicative of marijuana impairment.  According to NHTSA nystagmus would not be present due to marijuana and, as such, it was plain error to admit evidence of the horizontal gaze nystagmus test against the defendant accused of marijuana impairment.

The Walk and Turn Test: The Trooper gave me a “walk the line” test.  What was he looking for?

The Walk & Turn test is a divided attention test that is used as part of the three-test battery of field sobriety tests.  The officer will observe your performance on this test, looking for eight (8) clues of impairment.  You will be deemed to have failed the test if you present just two (2) of the eight (8) clues.  According to NHTSA, the Walk & Turn test is 68% accurate in determining alcohol intoxication above 0.10% BAC (when two or more clues are present).  See generally 2006 NHTSA Student Manual, VII-4, VIII 10, et al.

The law enforcement officer will begin the test by asking you to stand with your right foot in front of your left, touching heel to toe.  He or she will then begin to give you a series of instructions and demonstrate how the test is to be conducted.  This part of the test is commonly referred to as the Instruction Stage. There are two clues that are scored during this preliminary phase:

Clue #1: Cannot Maintain Balance During Instructions

Clue #2: Starts the Test Too Early

The obvious tip here is to listen as best you can to the officer’s instructions.  Ask him or her to repeat any instruction that you did not understand as many times as is necessary to be fully informed of what is expected of you.  DO NOT BEGIN UNTIL TOLD TO DO SO.  This is fundamental and should be one of the easiest parts of the test to comply with.

NOTE: I have seen a number of cases where the subject is taken outside of the range of the cruiser camera to conduct the tests.  Take advantage of the recording by talking your way through the test. One client said, “Oh, I stepped off the line because of that passing truck.”  Another client demanded explanations when they came to the “turn” portion of the test.  Yet another client described the conditions (i.e. cracks in the road, poor shoes, cold, shivering).  GIANT CAVEAT: Don’t say things that will hurt your case.  Unfortunately, more than one client has met the challenges of the Walk & Turn test by saying, “I can’t do that sober.”  Admissions against interest will be used against you.

NOTE: You are being judged on your ability to maintain position.  Raising your arms prior to the test will not and cannot be used as a clue. 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.

The remain clues of the Walk & Turn Test are:

• The Subject Stops While Walking
• The Subject Does Not Touch Heel-to-Toe
• The Subject Steps Off the Line
• The Subject Raises Arms for Balance
• The Subject Turns Improperly
• The Subject Takes the Incorrect Number of Steps

Clue #3: Stops While Walking.  In the early versions of the NHTSA Student Manual (1995 NHTSA Student Manual, VIII-20 later omitted) instructed the officer to only record this clue if the subject stopped to steady himself or herself.  The officer should also not record a clue if the subject is merely walking slowly or carefully.

Clue #4: Heel to Toe.  Would it surprise you to learn that the subject is not required to actually touch heel to toe?  According the NHTSA standards, the officer is only to count this clue if a gap of more than one-half inch is present.

Clue #5: Stepping Off the Line:  Originally, the officer was required to use an actual designated straight line. 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. Later versions of the NHTSA Student Manual removed the requirement of an actual designated line and allowed the officer to use an imaginary line.  Which raises the following question… “How thick was your imaginary line officer because ours was pretty wide.”

Clue #6: Using Arms for Balance.  If you put most human beings on a balance beam and ask them to walk across, the vast majority will instinctively raise their arms to maintain their balance.  During the walk and turn test we ask people to turn off this instinct and walk with their arms at their sides.  If a subject raises their arms more than six inches, it is used against them.  It is vital that the officer be heard giving this instruction as it is so fundamentally awkward.   If your client was never told to keep his arms at his or her side, then make sure that they are not “clued” on this portion of the test.

Clue #7: Improper Turn.  No other portion of the test is as unfair to a novice subject than the turn.  It must be done with precision.  More emphasis is placed on how it looks than how it is accomplished.  If done with deft balance but improper technique it will be counted against the subject.  Make sure the officer instructs the subject properly and make sure the officer demonstrates the turn properly.  My experience tells me that defense counsel can use the inherent unfairness of this test to great effect for the defendant.

Clue #8: Improper Number of Steps.  It may sound odd, but extreme stress caused by the intimidating presence of an intimidating law enforcement officer can cause people to do strange and amazing things.  Some people have a fight or flight response kick in and they run.  Other people shut down or pass out or cry.  Having viewed numerous videos of good people in this stressful environment, I have seen many people “forget” how to count to nine, mess up the alphabet and say horribly stupid things.  The overriding question to ask is whether nerves or intoxication contribute to your client’s missteps.  Jurors, in my experience, are willing to give your client great latitude if given a proper context.

Related articles

• Challenging the Standardized Field Sobriety Tests (daytondui.com)
• Standardized Field Sobriety Tests: What to Expect (daytondui.com)
• Fatigue and the Horizontal Gaze Nystagmus Test (daytondui.com)
• Nonstandardized Field Sobriety Tests (daytondui.com)
• Standardized Field Sobriety Tests & Marijuana (daytondui.com)
• DUI Blood & Urine Testing: Understanding Gas Chromatography (daytondui.com)

Non-Standardized Field Sobriety Tests

Ohio has adopted the three-test field sobriety protocol as set forth in the National Highway Traffic Safety Administration (NHTSA) manual for training law enforcement officers.  The three tests adopted by NHTSA all survived scientific scrutiny as being indicative of impairment.  The tests are: (1) horizontal gaze nystagmus, a test of the subject’s eyes; (2)  walk & turn; (3) one-leg-stand.  The officer is trained to administer the tests in a standardized fashion and record “clues” of impairment as evidenced by the subject’s performance on the tests.

Often, you will encounter a circumstance where the officer employs an non-standardized field sobriety test.  These tests may include nonscientific “techniques”, some of which are described in the NHTSA manual, and can include a finger dexterity test, an alphabet test, a counting test or some other form of confusing coordination test.  Some jurisdictions still employ a thoroughly discredited test which requires the subject to tilt their head back and touch the tip of his finger to the tip of his nose.

The first step in challenging the officers decision to employ non-standardized tests is to determine why the officer is employing the tests.  Ohio has set forth eleven (11) factors that courts consider in determining whether or not the officer has established reasonable and articulable suspicion of drunk driving sufficient to request that the suspect step from the car.  See State v. Evans, citation omitted.  It is appropriate pursuant to the NHTSA manual to employ the above-described “techniques” at this phase of the officer’s investigation.  Your DUI attorney will know how to use cross examination to establish that there were omissions in the officers investigation, or that the officer lacked the legal standard necessary to ask you to step from the car.

If, however, the officer is using the tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O’Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

The Finger Dexterity Test, “Damn, Your Drunk Tests Are Hard.”

In the movie, The Man With Two Brains, Steve Martin’s character is subject to ridiculous roadside sobriety tests. Some of the tests to which Ohio drivers are subjected are also suspect.  One such test is the Finger Dexterity test. While not part of the three-test Standardized Field Sobriety Test battery, the Finger Dexterity test is prescribed by officer training as a tool to be used to determine if the officer is justified in continuing the detention of the driver.  

If reasonable articulable suspicion of impairment is shown, the officer is justified in asking the driver to exit the car to take standardized tests. The test is not scientifically validated to demonstrate impairment, but Ohio police officers use it anyway.  The non-standardized tests are allowed into evidence despite their lack of correlation to impairment. Finger Dexterity test is not a Standard Field Sobriety Test. It has not been recognized by the National Highway Traffic Safety Administration. It is arbitrary and of little value. However, this test is a favorite amongst Ohio law enforcement officers.  Try the test yourself. I have administered this test on countless individuals that have consumed zero intoxicants and most fail.

This is how the Finger Dexterity test is conducted:

1. The suspect must select which hand they will use for the test;
2. Then, the suspect is instructed to touch the thumb of the selected hand and touch each finger tip starting with the index finger and moving toward the pinky finger;
3. Next, the suspect must count out loud each time their thumb touches a finger (i.e. “1, 2, 3, 4”);
4. As soon as the suspect touches the pinky and counts out loud the number 4 the suspect must immediately execute the test in reverse;
5. The suspect’s thumb must touch the pinky finger tip a second time and work backward to the index finger;
6. Then, the suspect must count backward, “4, 3, 2, 1”;
7. The suspect must perform this routine 3 times.

That Sounds Easy, Right?

The police officer wants to see if you do the following:

1. Cannot count in sequential order properly;
2. The suspect does not strike the thumb tip with to the tip of the target finger.

The contact area of the thumb tip and the finger tip is subjective. Furthermore, the officer is not on camera when conducting this test. No one can question his or her observations. When you couple that with the problem of confirmation bias (the officer is looking for evidence of intoxication), your chance of “passing” this test in the eyes of a police officer investigating you for DUI and samll.