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DUI Field Sobriety Test Challenged by Illinois Court
Eye test (HGN) used to determine intoxication called not scientifically valid by Illinois Supreme Court.
When a motorist is stopped for suspicion of drunk driving one of the field sobriety tests used by law enforcement is called the horizontal gaze nystagmus test. Excluding breath or blood tests, it has been considered the most reliable way of determining intoxication. The Illinois Supreme Court, however, has handed down a decision that impacts the admissibility of such test results during trial.
The horizontal gaze nystagmus test, or HGN, calls for an officer to take a pen and place it approximately six inches from a suspected drunk driver’s face. The person must track the movement of the pen as the officer moves it side to side. The clues to possible intoxication are an inability to follow the pen smoothly without noticeable jerking; an increased jerking of the eye when made to look as far as possible to the side and hold for five seconds; and a jerking of the eye before reaching 45 degrees to the side. The National Highway Traffic Safety Administration says HGN tests have a 77 percent accuracy rate in identifying motorists with a blood alcohol content above the legal limit.
The HGN test can be inconclusive though, and some people are naturally nystagmus, meaning their eye twitches. Other field tests can be used during a suspected DUI traffic stop, such as a one-leg stand, walk and turn and having the motorist touch a finger to tip of nose. Additionally some officers ask suspects to count or recite the alphabet, though those are not standardized tests.
DUI defense attorneys say there are many factors that can cause the eyes to jerk, including stress, fear and viral infections. There are many types of nystagmus too, not all of which are taught to those administering field sobriety tests. In courtroom cross-examination, officers often fail to accurately determine a 45 degree angle, critical to the outcome of a HGN test.
The Illinois Supreme Court decision stems from to a case involving suspected driving under the influence. The suspect had broken her toe and could not perform certain field sobriety tests and the blood sample taken 6.5 hours after her arrest revealed no alcohol in her system. The most influencing factor in the outcome of her DUI trial was the result of an HGN test.
The Supreme Court returned the case to a lower court with the finding that horizontal gaze nystagmus tests are not scientifically valid, thus adding Illinois to a small list of states where the admissibility of HGN tests during trial has not been decided. In three states, HGN tests are not admissible. The majority of courts allow juries in DUI cases to hear HGN results.
Prosecuting attorneys say that the HGN is part of an overall body of evidence they and the police use to try cases, though they admit the high court ruling will make a big difference on weaker suspected drunk driving cases that rely mainly on HGN test results.
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California DUI Field Sobriety Test
Field Sobriety Testing in California.
The Purpose
To test motor/mechanical skills, your divided sense of attention and the ability to process information. This test does not determine if you are drunk (impaired).
The Test
- Alcohol Gaze Nystagmus
- early on set - wavering at 45 deg. indicates .10 BAC as a general rule.
- tracking - inability to stay on track and follow finger or pencil.
- extremes - very early on-set
- Standing on One Foot - Balance
- hands at your side
- one foot extended 30 inches
- count by thousands
- Walking Imaginary Line
- 10 forward, 9 back - or any combination
Where suspect must 'process info and think' of two separate instructions. - heal to toe
- turning - (even)
- 10 forward, 9 back - or any combination
- Finger Counting
- 1,2,3,4/4,3,2,1
- Alternate Clapping
Palm and the back of your hand while counting
Other Variables that are on the Police Report
The appearance of the person plays a large part in the officers assessment if the person is under the influence or not. Police officers generally evaluate a driver's physical appearance and condition while he is still seated in the vehicle. This evaluation typically includes:
- breath odor
- condition of the eyes
- demeanor
- color of face
- dexterity
- speech
- clothing
The Person
- Clothes
- Breath
- Attitude
- Unusual Actions
- Speech
- Complexion
- Alphabet - Written or Spoken (and Even Sung)
- Eyes
- Chemical tests in the field (Portable Breath Alyzers - PBA's)
(passive and active devices, not a substitute for a chemical test)
The Car
- Towing - Some persons have their car towed while others have them parked or driven to a safe area. This depends on where you were stopped and what the officers want to do at the time of stop.
- Occupants are many times tested to see if they can take the car and drive home or told to walk or taken to a phone so they can find a ride.
- Search- no search warrant required, if there is reasonable suspicion to suspect something like an open container or other violation of the law has been broken. The officers either needs your permission or a search warrant to check your trunk where there is no arrest, but if there is an arrest or any probable cause the officer can check the entire car and any containers or locked items such as a suitcase of briefcase.
Portable Breath Test
Preliminary Alcohol Screening (PAS) Device
The use of PAS devices constitutes a search or seizure within the meaning of the Fourth amendment. The use of PAs devices is legal, and is considered another field sobriety test.
Officers are required to obtrain consent from a subject prior to testing. They shall read the admonishment:
"I am requesting that you take a preliminary alcohol screening test to further assist me in ....You may refuse to take this test...this is not an implid consent test....you will be required to give a sample of your blood or breath for the purposes of determining...."
CHP Manual
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Field Sobriety Tests
Some common sobriety tests include:
Stand on one foot at a time: An officer may look for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors or muscle tension.
Follow the pen (a.k.a.: Nystagmus): An officer places an object, such as a pen, 12 inches away from the driver's face, and moves the object side to side while watching the driver's eyes. The officer may look for involuntary jerking or trembling of the eyeball.
The Rhomberg Balance test: The driver is asked to tilt his or her head back, close his/her eyes and count 30 seconds silently. An officer may look for the inability to stand steady, body or eyelids shaking, opening eyes to maintain balance, swaying or muscle tension. This test is also intended to check an individual's "internal clock," which may be slowed with the use of alcohol, or sped up with the use of stimulants.
Walk and turn: An individual takes "heel-to-toe" steps in line then turns and takes the same number of "heel-to-toe" steps back. An officer is checking whether the individual can balance, follow instructions, be coordinated, and start/stop when asked.
Finger to nose: This test requires an individual to close one's eyes, stand straight with feet together and touch index finger to nose. An officer may look for body sway or tremors, eyelid tremors or muscle tension.
Other field sobriety tests include:
- Walk in a straight line
- Touch each finger, one after the other, to thumb
- Count backwards
- Recite or sing the alphabet
In addition to roadside exercises, an officer may require that an individual take a Breathalyzer test to check the Blood Alcohol Content (BAC), based on the person's breath sample.
Field Sobriety Tests are intended to check an individual's motor skills and "divided attention," a critical skill used while operating a motor vehicle, while a breath test is a chemical test to estimate level of intoxication. Each State has different laws regarding how much weight a roadside test will hold in a DUI / DWI arrest. Field sobriety tests are voluntary, but refusal to cooperate may result in an automatic arrest.
Related Articles:
- California Highway Patrol (CHP) Field Sobriety Tests
- .08 BAC Limit for Every State
- What is a Breathalyzer?
- Effects of Alcohol
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