Almost every police officer is trained in the administration of the Standardized Field Sobriety Tests (SFSTs). These tests were designed to help officers guess if the person being tested will have a BAC over the legal limit. The officer looks for certain “clues,” and if the officer observes the appropriate number of clues then the person has failed that test. A person’s poor performance on one or more of the tests bolsters the officer’s decision to arrest and can be used as evidence at trial. While many people debate the accuracy and reliability of these “tests,” they can be used as evidence against you if the officer administered the test to you in accordance with the national standards developed by the National Highway Traffic Safety Administration (NHTSA). Ohio recognizes three SFSTs: 1) the Horizontal Gaze Nystagmus (HGN); 2) the Walk and Turn (WAT); and 3) the One Leg Stand (OLS). Officers are trained that if they do not administer these tests in strict compliance with the manual, the tests are definitely not reliable. Ohio law, even though the training requires strict compliance, allows these tests to be admitted against you if the officer “substantially” complied with the training. Because “substantial compliance” is a lesser standard than “strict compliance” it is critical that you have an OVI defense attorney who has the experience and training to look for every flaw in the officer’s administration of the SFSTs.
The National Highway Traffic Safety Administration has developed standardized procedures for the administration of the three FSTs which NHTSA considers the most reliable. These standardized FSTs (SFSTs) are taught to and used by police officers across the country. The SFSTs are designed to be used by police officers to establish probable cause to arrest individuals who are under suspicion of driving under the influence and to support the administration of a chemical test that measures a person’s blood alcohol content (BAC). As direct, independent evidence of intoxication, however, SFSTs are extremely unreliable and have an immense margin of error. Furthermore, individual officers often administer the tests differently or under non-ideal testing circumstances, further reducing their reliability.
The NHTSA police officer training course separates the typical OVI investigation into three “phases”. These are (1) Vehicle in Motion, (2) Personal Contact, and; (3) Pre-Arrest Screening. The SFST’s are administered during phase three as part of the pre-arrest screening and include only the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT), and the One-Leg Stand (OLS).
Horizontal Gaze Nystagmus
“Horizontal Gaze Nystagmus” is an involuntary jerking of the eyes as the eyes gaze to the side. This jerking is what the officer was looking for when he/she told you at the roadside “I am going to check your eyes”.
In administering this test, the officer was looking for three clues:
- Lack of smooth pursuit
- Distinct and sustained nystagmus at maximum deviation
- The onset of nystagmus prior to 45 degrees
If the test had been appropriately administered, the officer would have begun by asking you to stand with your feet together, and arms at your side. The officer should then instruct you to remove your glasses if you are wearing any and ask you if you are wearing contact lenses if you are not. The officer will then instruct you as follows:
- “I am going to check your eyes.”
- “Keep your head still and follow this stimulus with your eyes only.”
- “Keep following the stimulus with your eyes until I tell you to stop.”
The stimulus is usually a pen, but officers are allowed to use their fingers as well. The officer then checks you for signs of medical impairment. They do this by checking that your pupils are the same size, by checking whether there is any nystagmus while your eyes are resting and looking straight ahead, and by checking your eyes for equal tracking. When checking for equal tracking, the officer is required to position the stimulus 12-15 inches from your nose and slightly above eye level. The officer then moves the stimulus smoothly across your entire field of vision. If the officer observes unequal pupil size, resting nystagmus, or unequal tracking, then the chance of medical disorders or injuries causing nystagmus is present.
The officer then checks your eyes for “lack of smooth pursuit” (The officer is looking for the involuntary jerking as your eyes move from side to side). The officer must move the stimulus smoothly from the center of your field of vision to the side as far as it can go, starting with the left eye and following back across to check your right eye. It should take two seconds out and two seconds back for each eye. The officer then must repeat this procedure for each eye.
In the next part of the test, the officer is looking for “distinct and sustained nystagmus at maximum deviation”. (Maximum deviation occurs when the eye is brought all the way out toward the shoulder, and no white is visible at the outside of the eye). Starting with your left eye, the officer should move the stimulus to the side until your eye has gone as far as it can go or maximum deviation. The officer then must hold the stimulus at that maximum deviation for at least four seconds, checking for “distinct and sustained nystagmus.” The officer then moves the stimulus all the way across your face to check your right eye. The office must then repeat this procedure for each eye.
Next, the officer should have checked for the onset of nystagmus prior to 45 degrees. The officer again begins with your left eye and moves the stimulus from the center toward your shoulder at a speed that should take about four seconds. The officer is watching your eye for any sign of jerking before the stimulus reaches 45 degrees or about your shoulder. If the officer observes any jerking he is to stop moving the stimulus and verify that your eye is jerking. The officer then checks your right eye and then repeats this procedure for each eye.
A common mistake that officers make when administering this test is moving the stimulus too fast. By moving the stimulus too fast, the officer is not really checking for nystagmus but is merely going through the motions before claiming that you failed. For example, when checking for distinct and sustained nystagmus at maximum deviation, the officer should expect some jerking of your eye initially, and that it is the presence of alcohol in your system that makes the eye continue to jerk for the full four seconds that it is held at maximum deviation. By moving through that phase of the test too quickly, the reliability of the officer’s observations is in doubt. Another common mistake that officers make is having you face the cruiser while the emergency or flashing lights are still on. The flashing lights can cause your eyes to involuntarily jerk, so the test is unreliable when administered under those conditions.