In a drunken driving case, there are usually only three witnesses. They include the driver of the car, the data-master operator and the police officer making the arrest. Many police agencies now require that the officer video tape the arrest starting from following the car through the administration of the field sobriety test(s). It is imperative the police report and video be reviewed by an attorney to determine what the police officer observed and the tests he conducted and the conclusions he made. Often the video reflects that the field sobriety tests were administered inappropriately or the stop was illegal, due to lack of probable cause.
Traditional Testing Methods Not Good Indicators of Intoxication
Field sobriety tests have been used by police for many years to bolster their conclusion that the driver was operating under the influence of liquor. Just because the police have used these tests for many years does not mean that they are valid or even good indicators of a person’s alcohol intoxication. There are many different tests and because of the many and different kinds of tests utilized by police, it has been hard to measure their accuracy in determining intoxication.
Field sobriety tests are supposed to determine a driver’s psychomotor and cognitive function which consumption of alcohol can impair. The tests are what are called, divided attention tests, which are to quantify a person’s ability to follow direction and pay attention. Many field sobriety tests utilized by the police test factors that have nothing to do with intoxication and can skew these “tests” results. The emotional tension of being arrested, the lights of the police officers car, the nearness to moving traffic, noise from the traffic at the scene, to mention only a few issues, can adversely affect a test, and which has nothing to do with intoxication by liquor. Worse than the fact that there are outside affects to the tests, many of tests utilized by the police are simply not scientific and have little real relevance on the issue of intoxication. They are simply tests made up by the police and handed down trainer to trainee and have never been scientifically tested or verified for accuracy.
What Field Sobriety Tests Help Determine Intoxication?
Only three tests have been found to be scientifically relevant and have a basis of connection with intoxication. The National Highway Safety Administration was contracted to determine and verify which field sobriety tests could determine intoxication and driving ability. The NHSA concluded that ONLY three tests had any predicting ability. The walk and turn, the one leg stand, and the horizontal gaze nystagmus tests. The NHSA also concluded even when these three tests were utilized by the police, the tests must have been administered properly.
As to the walk and turn test, the police officer must eliminate physical problems with the subject driver. Does the driver have prior equilibrium issues? Is he taking any medication prescribed by a physician? Does the subject have leg, knee or ankle issues? More importantly, can the subject actually hear the instructions given, due to road traffic, engine noise, or an underlying hearing problem with the driver? When using the one leg standing test, the police officer must eliminate any physical issues and hearing issues that would interfere with the accuracy of the tests and his observation.
What Field Sobriety Tests Are Acceptable in Michigan?
Only one test has been held by the courts in Michigan to be scientifically acceptable. The horizontal nystagmus test is where the office shines his light into your eyes, moves the light side to side and asks the subject to follow the light. If the pupil of the eye smoothly follows the light without jerking, then the test is negative. If the pupil jerks then the test is positive. People v Berger, 217 Mich App 213 (1996) found that the test passed the Davis/Frey reliability of evidence requirement. Davis/Frey requires that all expert’s testimony be based in science generally accepted nationwide. An “expert” cannot come up with his own conclusion that a test is scientific, just because he is qualified as an expert.
How To Determine If Your Field Sobriety Test was Administered Properly
Determining whether the test was properly administered is very important. The only sure-fire way is to order the recording of the video if one exists and have it reviewed by an experienced attorney. Even when the video is available, the video seldom if ever shows the reaction of the eyes to the light. But it can shown whether the test was appropriately given. Effective cross examination is warranted on this issue.
If after reviewing the tests if there are errors or other factors that affect the accuracy of the findings, a motion to suppress or dismiss for lack of probable cause to arrest can be made to the court. It may be wise to refuse to the PBT, leaving the officer only with the tests that he may or may not have conducted properly or utilized nonscientific tests, that cannot survive a Davis-Fry motion. If you need help determining if the field sobriety test given to you was administered properly, give us a call today at 517-347-6900 for a free confidential consultation.