Officers sometimes make the mistake of paraphrasing the test instructions or performing the tests incorrectly. For example, with the horizontal gaze test, the officer is supposed to hold the stimulus no more than 12-15 inches away from the person’s face, but some officers will hold it out 2 feet. I don’t know whether doing so makes a significant difference in the test results, but the validation studies do not support altering the distance, and that’s what I care about. It is not my burden to prove that the test is not valid, that is the DA’s burden to prove after I’ve shown that it was not administered in the prescribed manner.
During the Walk and Turn test, some officers tell the individual to walk down an imaginary line. A straight line can be defined as the distance between ANY two points. The person taking the test and the officer may have different ideas about where that straight line is. A person walking an imaginary line may think they are on it the entire time, but the officer might say he never set foot on it.
I ask officers whether the line they were imagining was the same one the test subject was imagining. They usually say they can’t be sure, but that they took that potential issue into consideration with the other signals they saw that indicated the person was impaired.
As far as I’m concerned, they cannot have taken into account a difference in imaginary lines and still penalize the person. Many officers either administer the tests incorrectly, or interpret them incorrectly. This can happen when the officer gives the instructions correctly but has no idea what the standardized clues are that he should be looking for.
The officer will often say that he knew from experience what clues to look for that indicate someone is impaired, and they pay no attention to what the “standardized” clues are that were actually validated. From my perspective, the officer’s experience doesn’t tell me anything; what I care about is whether the test results can be validated or not because that is where I can find ways to knock the results down.
Why Do Police Officers Perform The Tests On Someone Who Is Obviously Intoxicated?
They do that just to make a case, and probably because it is hard to document someone being belligerent. They might say that someone was stumbling around and they were loud, but ultimately we may have a different version of what happened.
Someone who takes the field sobriety tests provides the DA and law enforcement agencies hard evidence against themselves that they were intoxicated. But if someone is acting belligerent, maybe it’s just their personality, or they are faking it. In the case of the tests, the police will probably think that a person cannot fake their results to look as if they are not intoxicated.
Is There A Checklist Where Officers Try To Get More And More Evidence Against Someone?
Absolutely, and most reports, at least in California, are actually checklists. It is a form listing the different field sobriety tests that the agency wants the officers to perform, with a checkbox for every observation the officer makes. There is a checkbox for every negative thing that an officer might observe, and even includes positive items, although with a slant.
For example, there is a checkbox for speech — slurred, loud or quiet — which is considered an objective symptom of intoxication. The very last checkbox is for ‘apparently normal’ speech. This is important to know because it does not just say ‘normal.’ That’s because the officer has no baseline against which to compare the person’s speech. I interpret ‘apparently normal’ to mean that the officer could not tell the difference, so the officer may interpret that the person may still be under the influence, despite what sounds like normal speech. They seem to have found a way to turn even normal speech into a negative.
Can The Officer Miscommunicate Or Misinterpret How An Exercise Should Be Performed?
Absolutely, and this is one of the big problems with the tests. They are supposed to be standardized, but different officers may be trained differently in how to administer the tests. Over time, an officer may have started doing things his or her own way.
These tests are supposed to work because the symptoms that the officers are supposed to look for are standardized, meaning they should be the same across the board, which should limit subjectivity. The instruction and administration of the tests should also be the same across the board to truly make them objective.
I find that although some officers do an excellent job and read the instructions verbatim, others tend to paraphrase which can cause the potential defendant (or person taking the test) to misinterpret the instructions and consequently perform the tests incorrectly. This is an issue that does not actually have a remedy because the officers are allowed so much leverage by the Courts and District Attorney’s office. That’s why it is even more important to thoroughly cross examine the officers on these subjects.
I had a hearing with an officer who could recite the test instructions verbatim on the stand, but when asked what specific clues he looked for in trying to determine whether or not a person was under the influence, he wanted to know if I was asking about the case at hand, or in general. Based on my understanding of these tests, there should not be a difference; the signs they are looking for should be the same in whatever case. A standardized test should be equal across the board for everyone.
Why Do People Typically Agree To The Standard Field Sobriety Tests?
People agree to the tests for a variety of reasons. Usually they agree because they think they can pass the tests. Many people come into their attorney’s office claiming they passed the field sobriety tests, and although I might agree that it sounds as if they did, in the officer’s mind, no one would pass. They are supposed to be subjective, but they are actually extremely objective, so if the officer really tried hard enough, they would be able to see the signs they were looking for to determine whether someone was under the influence or not.
People also submit to the tests thinking they won’t be that big of a deal. They think they’ll pass, the officer will let them go, and that will be the end of it. But that’s not always how it goes.
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