Utah Field Sobriety Tests Are Inherently Unfair Because They Have Never Been Tested On Sober Individuals

David Rosenbloom a Utah DUI lawyer explains subjective field sobriety tests.

Simply put, the Standardized Field Sobriety Tests (SFST's) used by Utah law enforcement to form probable cause for arrest, have NEVER been tested on a sober control group to examine whether or not perfectly sober people can pass them. In fact, every study that has ever been done to assess the accuracy of such tests has been done on inebriated people already stopped on suspicion of drunk driving. This fact makes SFST's the single biggest charade in law enforcement today. People in America hate to hear that their justice system is anything but the "best in the world," and clearly it is; but that doesn't mean the system doesn't have faults, and the fact that SFST's are a scientific sham is universally accepted by scientists and professors outside the very insular law enforcement community. Let's face it, admitting these tests mean nothing is not going to happen in the face of ever increasing political pressure in Utah and other states to do anything possible to stop deaths from DUI's. Moreover, since at least 75% of DUI arrests result in correct arrest decisions (people that are visibly drunk), from a law enforcement perspective, the accuracy of SFST's simply doesn't matter. The unfairness comes into play when people trying to obey the law, by having one or two drinks, are stopped for a minor traffic infraction only to be drawn into this web of SFST junk science; and then, coupled with the inaccuracy of the Intoxilyzers used in Utah DUI enforcement, they blow a tiny bit more than .080 and have a full blown DUI on their hands. Utah law enforcement uses the tools they were given - the SFST's, administer them incorrectly the majority of the time, and then have their hunches falsely bolstered by the inaccurate Intoxilyzers - thus the entire system is self-reinforcing. The truth of the matter is this: you never need perform roadside sobriety tests and no Utah law enforcement officer can force you to physically stand on one leg to prove your fitness to drive. Unless conditions are physically perfect, weather, traffic, and footwear, you will not pass these tests, largely because a single mis-step out of twenty steps in a Walk and Turn for example, will indicate impairment to the officer - miss a single heel to toe, and step slightly off the imaginary line, and you are impaired according to their scoring. There is no other test in the world where a 99% score can result in failure of the test; yet this is exactly what happens in SFST scoring. This is Bull! Plain and simple.

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Cole and Nowaczyk, Field Sobriety Tests: Are they Designed for Failure? 79 Perceptual and Motor Skills, 1994

David's Plain Language Analysis / Synopsis: The SFST's as used by Utah law enforcement likely result in a significant percentage of false arrests because officers judge the tests subjectively and the tests do not have predictive ability because they have never been tested on a sober control group.

ARTICLE
Field sobriety tests have been used by law enforcement officers to identify alcohol-impaired drivers. Yet in 1981 Tharp, Burns, and Moskowitz found that 32% of individuals in a laboratory setting who were judged to have an alcohol level above the legal limit actually were below the level. In this study, two groups of seven law enforcement officers each viewed videotapes of 21 sober individuals performing a variety of field sobriety tests or normal-abilities tests, e.g., reciting one's address and phone number or walking in a normal manner. Officers judged a significantly larger number of the individuals as impaired when they performed the field sobriety tests than when they performed the normal-abilities tests. The need to reevaluate the predictive validity of field sobriety tests is discussed.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health

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Booker, End Position Nystagmus as an Indicator of Ethanol Intoxication 40(2) Science and Justice 113 - 116 (2001)

David's Plain Language Analysis / Synopsis: Alcohol vs. Fatigue as the cause of HGN : 55% False positives for fatigued nondrinkers. Dose response relationship varies depending on absorptive vs. postabsorptive phase. More than 50% of subjects had positive HGN after BAC returned to 0.0

ARTICLE
 The Horizontal Gaze Nystagmus test is used by law enforcement agencies in the United States to determine whether drivers are intoxicated. It has a high baseline error and a dose/response relationship that varies greatly according to whether the subject's blood alcohol concentration is rising or falling. Confusion exists among practitioners of the test about whether it quantifies alcohol concentration or evaluates impairment. Fatigue exacerbates one component of the HGN test, end-position nystagmus. Video tapes recorded by cameras in police vehicles revealed that police officers rarely comply with the minimum requirements of the nystagmus examination procedures for which they were trained and certified.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health
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Hlastla, Polissar, Oberman, Statistical Evaluation of Standardized Field Sobriety Tests, 50(3) J Forensic Sci (2005)

Dave's Plain Language Analysis / Synopsis: The original research supporting and validating SFST's as accurate was based on totally bogus statistics that were self-referential and inaccurate.

ARTICLE
Standardized Field Sobriety Tests (SFSTs) are used as qualitative indicators of impairment by alcohol in individuals suspected of DUI. Stuster and Burns authored a report on this testing and presented the SFSTs as being 91% accurate in predicting Blood Alcohol Concentration (BAC) as lying at or above 0.08%. Their conclusions regarding accuracy are heavily weighted by the large number of subjects with very high BAC levels. This present study re-analyzes the original data with a more complete statistical evaluation. Our evaluation indicates that the accuracy of the SFSTs depends on the BAC level and is much poorer than that indicated by Stuster and Burns. While the SFSTs may be usable for evaluating suspects for BAC, the means of evaluation must be significantly modified to represent the large degree of variability of BAC in relation to SFST test scores. The tests are likely to be mainly useful in identifying subjects with a BAC substantially greater than 0.08%. Given the moderate to high correlation of the tests with BAC, there is potential for improved application of the test after further development, including a more diverse sample of BAC levels, adjustment of the scoring system and a statistically-based method for using the SFST to predict a BAC greater than 0.08%.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health

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Moskowitz, Burns, Ferguson, Police Officers' Detection of Breath Odors from Alcohol Ingestion, 31(3) Accident Analysis and Prevention 175 (1999)

Dave's Plain Language Analysis / Synopsis:  20 experienced officers failed to predict alcohol intoxication of 14 subjects with BACs from .00-.13, because the odor of alcohol alone does not indicate anything by itself.

ARTICLE
Police officers frequently use the presence or absence of an alcohol breath odor for decisions on proceeding further into sobriety testing. Epidemiological studies report many false negative errors. The current study employed 20 experienced officers as observers to detect an alcohol odor from 14 subjects who were at blood alcohol concentrations (BACs) ranging from zero to 0.130 g/dl. Over a 4 h period, each officer had 24 opportunities to place his nose at the terminal end of a 6 in. tube through which subjects blew. Subjects were hidden behind screens with a slit for the tube to prevent any but odor cues. Under these optimum conditions, odor was detected only two-thirds of the time for BACs below 0.08 and 85% of the time for BACs at or above 0.08%. After food consumption, correct detections declined further. Officers were unable to recognize whether the alcohol beverage was beer, wine, bourbon or vodka. Odor strength estimates were unrelated to BAC levels. Estimates of BAC level failed to rise above random guesses. These results demonstrate that even under optimum laboratory conditions, breath odor detection is unreliable, which may account for the low detection rate found in roadside realistic conditions.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health
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Nicholson, et al., Variability in Behavioral Impairment Involved in the Rising and Falling BAC Curve, Journal of Studies on Alcohol 349 (July 1992)

Dave's Plain Language Analysis / Synopsis: Impairment is greater during rising phase than falling phase, called post and pre absorptive phases.

ARTICLE
The purpose of this pilot study was to measure variability in behavior impairment at specific levels of the rising and falling blood alcohol concentration (BAC) curve. Behavior impairment was measured for anticipation and reaction time in addition to a variety of visual skills. Also of interest was the variability in impairment involved at specific BAC levels under single-dose and double-dose conditions. The experimental design was a variation on a 2 x 2 factorial with repeated measures on the dose of alcohol. All subjects took part in two experimental sessions, single-dose and double-dose. Sixteen (8 male and 8 female) paid subjects ages 21-40 participated in the study. Testing procedures included repeated measures on reaction time, anticipation time, perceptual vision acuity and depth perception. Breath-alcohol measures were sampled continuously at 5-minute intervals and used to plot absorption time, peak BAC and elimination time. Results showed that the average peak BAC for the double-dose was significantly higher than that of the single-dose condition. However, there were no significant differences between the single-dose and double-dose condition in either absorption time or elimination time. The performance pattern for reaction time, anticipation time and depth perception showed more impairment in the rising BAC limb than in the falling BAC limb. It is noteworthy that specific individuals exhibited different levels of impairment at a given BAC level, depending on whether the session was single- or double-dose, suggesting that one's current BAC level is less a measure of impairment than is the total quantity of alcohol consumed. A follow-up procedure to examine practice effects was conducted on eight volunteer students. Identical testing procedures, using no alcohol, produced no significant practice effects after a 3-hour period.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health
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Redelmeier, Tibshirani, Association Between Cellular-Telephone Calls and Motor Vehicle Collisions, 336 (7) New England Journal of Medicine, 453-458 (1997)

Dave's Plain Language Analysis / Synopsis:  Harry Hollien, phonetician at University of Florida, used chemical dependency clinicians and normal people to judge records of various levels of drunk/sober. Consistent overestimates of drunkenness resulted. Under estimated those that were most drunk. Slurred speech should not be used for probable cause.

ARTICLE
Because of a belief that the use of cellular telephones while driving may cause collisions, several countries have restricted their use in motor vehicles, and others are considering such regulations. We used an epidemiologic method, the case-crossover design, to study whether using a cellular telephone while driving increases the risk of a motor vehicle collision. METHODS: We studied 699 drivers who had cellular telephones and who were involved in motor vehicle collisions resulting in substantial property damage but no personal injury. Each person's cellular-telephone calls on the day of the collision and during the previous week were analyzed through the use of detailed billing records. RESULTS: A total of 26,798 cellular-telephone calls were made during the 14-month study period. The risk of a collision when using a cellular telephone was four times higher than the risk when a cellular telephone was not being used (relative risk, 4.3; 95 percent confidence interval, 3.0 to 6.5). The relative risk was similar for drivers who differed in personal characteristics such as age and driving experience; calls close to the time of the collision were particularly hazardous (relative risk, 4.8 for calls placed within 5 minutes of the accident, as compared with 1.3 for calls placed more than 15 minutes before the accident; P<0.001); and units that allowed the hands to be free (relative risk, 5.9) offered no safety advantage over hand-held units (relative risk, 3.9; P not significant). Thirty-nine percent of the drivers called emergency services after the collision, suggesting that having a cellular telephone may have had advantages in the aftermath of an event. CONCLUSIONS: The use of cellular telephones in motor vehicles is associated with a quadrupling of the risk of a collision during the brief time interval involving a call. Decisions about regulation of such telephones, however, need to take into account the benefits of the technology and the role of individual responsibility.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health
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Sullivan, Hauptman & Bronstein, Lack of Observable Intoxication in Humans with High Plasma Alcohol Concentrations, 32 Journal of Forensic Sciences 1660 (1987)

David's Plain Language Analysis / Synopsis: High BAC ? Does not equal Intoxicated 12/20/1983; BAC provides little indication of Intox.

ARTICLE
Judging the degree of human alcohol intoxication is an important clinical, social, and medicolegal matter. Assessing the degree of intoxication is not always easy by direct patient observation. Observational instruments have been used in forensic science, medical, and social situations in an endeavor to measure alcohol intoxication. The validity of these observational instruments must be questioned. In this study, twenty-one patients with alcohol related complaints presenting to major city emergency departments were studied using one such observational instrument, the Alcohol Symptom Checklist (ASC). Three independent emergency medicine physicians applied the criteria of ASC to the twenty-one patients and obtained a plasma alcohol concentration (PAC) for correlation purposes. Individual correlation coefficients (r = 0.182, r = 0.202, r = 0.200) and a composite correlation coefficient (r = 0.235) demonstrated lack of correlation between PAC and ASC. This lack of correlation is supported by clinical observations of experienced emergency department personnel.

Abstract courtesy of www.pubmed.org - A service of the National Library of Medicine and the National Institutes of Health
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SEE ALSO:

Cole and Nowaczyk, Separating Myth from Fact: A Review of Research on the Field Sobriety Tests, Clemson University

Doty, Wudarski, Marshall, Hastings, Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, 28 (2) Law and Human Behavior (2004)

Marieb, Effects of Parasympathetic and Sympathetic Divisions on Various Organs, Human Anatomy and Physiology Sixth Edition.

Sanders, News of Science, Medicine, and Technology: Straight Talk 21(10) Discover (2000)

Papafotiou, Carter, Stough, An evaluation of the sensitivity of the Standardized Field Sobriety Tests (SFSTs) to detect impairment due to marijuana intoxication, 180 Psychopharmacology 107 (205)