WHAT ARE "FIELD SOBRIETY TESTS"
Written by George L. Bianchi of The Bianchi Law Firm
605 Thomas Street
Seattle, WA 98109
Telephone: (206) 728-9300
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Copyright 2006: The Bianchi Law Firm

www.seattleduilawyer.com

It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside

Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent, DOTHS-___ at 28, (Stuster & Burns, August 1998).

HISTORY OF NATIONAL HIGHWAY TRAFFIC ADMINISTRATION (NHTSA) SCIENTIFIC STUDIES AND PUBLICATIONS ON FIELD SOBRIETY TESTING

In June of 1975, the Southern California Research Institute was commissioned by NHTSA to study and evaluate the then currently used “field sobriety tests” to determine their alcohol sensitivity, develop more sensitive and reliable tests, and attempt to standardize the administration of “field sobriety tests”. In this regard, they were looking to physical coordination tests associated with a DUI investigation to determine, if possible, their relationship to intoxication and possibly driving impairment. The goal was to develop alcohol-sensitive tests that would provide more reliable evidence by standardizing the tests themselves and the observations to be made. The end result was Psycho-Physical Tests for DWI Arrests, DOTHS 802 424, (Burns & Moskowitz, June 1977). Some of the original sixteen “tests” considered were AGN, walk and turn, Romberg balance, finger to nose, one leg stand, and finger count or finger dexterity. Reciting the alphabet and counting backwards were not ever considered. To make the tests more reliable and objective (as opposed to subjective), the authors pursued the development of a “test battery” which would provide statistically valid and reliable indications that a driver’s breath alcohol concentration (BrAC) level was at or above 0.10, rather than indication of driver impairment. Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent, DOTHS at page 28, (Stuster & Burns, August 1998). Certain tests were originally eliminated because they were determined to not be alcohol sensitive. The result was a pilot program that studied a six test battery (one leg stand, walk and turn, finger to nose, finger count, Gaze Nystagmus and tracing) with three alternates (Romberg balance, subtraction, counting backwards and letter cancellation). The original data in the 1977 study suggested that it was unrealistic to attempt to use behavioral tests to discriminate BrAC’s in a plus or minus 0.02 margin around the given BrAC level of 0.10 percent. Psycho-Physical Tests for DWI Arrests, at page 41. The authors also noted an obvious unacceptable error rate of 47% in “arresting” individuals who were under a BrAC of 0.10 percent. Id. at page 28, 30 and Appendix 6, page 102. Some of the sources of error were determined to be the failure of officers to heed the lack of test evidence impairment which was not alcohol related and officers who did not score the tests properly. Id. at page 28. The study resulted in a three test battery that included alcohol Gaze Nystagmus, the one leg stand and walk and turn test. The authors stated:

It became apparent during field visits that this objective [standardization of the tests and observation procedures] is highly important. There are wide differences between officers in using tests to assess a driver’s state of intoxication, and they may exist within the department as well as between agencies and locales. These differences seriously detract from reliability as well as from credibility of the officers in court proceedings.

Id. at page 59.

The standardization of the three test battery occurred in 1981 with Development and Field Tests of Psycho-Physical Tests for DWI Arrests, DOTHS 805 864, (Tharp, Burns & Moskowitz, March 1981). The authors defined a standardized test as:

One which the procedures, apparatus and scoring have been fixed so that precisely the same testing procedures can be followed at different times and locations.

Id. at page 3.

From August of 1978 until March of 1981 when the final report was concluded, Tharp, Burns and Moskowitz worked to standardize the administration and scoring procedures associated with the three test battery (walk and turn test, the one leg stand test and Horizontal Gaze Nystagmus). Their results were evaluated in the laboratory and to a limited extend, in the field. Development and Field Tests for DWI Arrests, DOTHS 805 864 (Tharp, Burns & Moskowitz, March 1981).

As it relates to the walk and turn test, the authors noted that requesting people to “watch their feet” while performing this test increased its sensitivity to alcohol, but made the test difficult for people with monocular vision (i.e., poor depth perception). Performing the walk and turn test with the eyes open and enough light to see some frame of reference was determined to be essential if sober individuals were to perform the test without difficulty. Id. at page 4. Certain individuals were noted to have difficulty with the walk and turn test when sober, including people over 65 years of age, people with back, leg or middle ear problems, and people with high-heeled shoes (over 2 inches). Id. at page 5. The authors determined that the test required a line which the police officer could manufacture. They also recommended that the walk and turn test be performed on a dry, hard, level, non-slippery surface and under relatively safe conditions. If those requirements could not be met at the roadside, it was recommended that the suspect be asked to perform the test elsewhere or that only the Nystagmus test be used. Id. at page 5.

As it relates to the one leg stand test, the authors ascertained that the suspect must be able to see in order to orient himself or herself and the police officer must stand back from the suspect in order not to provide an artificial reference frame which could distract the suspect. Generally, if the suspect could not see or orient with respect to a perpendicular frame of reference, then the test was determined to be difficult to perform even if sober. Id. at page 5. Again, the authors noted that certain individuals would have difficulty performing the one leg stand test under sober conditions, including people over the age of 65, people with leg, back or middle ear problems, and people who are overweight by 50 or more pounds. Lastly, the authors recommended that the one leg stand test be performed only on a hard, dry, level, non-slippery surface under relatively safe conditions and if those requirements could not be met at the roadside, that the suspect be taken to perform the test elsewhere or only the Nystagmus test be used. Id. at page 5.

As it relates to the Gaze Nystagmus, the authors noted that approximately half of the “sober” people tested showed a slight Nystagmus in at least one eye when their eyes deviated maximally. Id. at page 7. The authors recommended that corrective lenses should be removed prior to the administration of this test. Id. at page 7. They also recommended that in looking for the onset of Nystagmus, the stimulus be moved fairly slowly (i.e., at about 10 degrees per second), otherwise normal oscillation of the eyeball may be mistaken for Nystagmus. Id. at page 7. On the second movement of the stimulus in each direction, the recommendation was that the stimulus be moved faster (about 20 degrees per second) and that the observer should note whether or not the suspect can follow smoothly and how distinct the Nystagmus is at the maximum lateral deviation. Id. at page 9. The authors concluded that the Gaze Nystagmus test may not be applicable to individuals wearing contact lenses, since hard contacts prevent extreme lateral eye movements. Id. at page 9. Also of note is that the authors indicated that Gaze Nystagmus could be seen in 50 to 60% of all individuals if their eyes were deviated to the extremes and that Gaze Nystagmus occurs with some types of brain damage. Id. at page 92.

In discussing alcohol and balance, the authors noted that other variables, in addition to alcohol, could increase body sway, such as sleep loss, increasing of room temperature and eating. Id. at 83. They also concluded that one of the most important parameters in tests of balance and muscular coordination is vision. In their opinion, closing the eyes makes all of the balance tests much more difficult for sober and intoxicated individuals. Id. at 83. The data, to them suggested that peripheral vision plays a particularly important role in maintaining balance. Id. at 84.

The end result of the 1981 study was an indication that the Gaze Nystagmus could correctly classify individuals at or above a BrAC of 0.10 seventy-seven percent (77%) of the time, that the walk and turn test could properly classify individuals as being at or above a BrAC of 0.10 sixty-eight percent (68%) of the time and the one leg stand test could properly classify individuals at or above a BrAC of 0.10 sixty-five percent (65%) of the time. When they combined the results of the Gaze Nystagmus with the walk and turn test, there was determined to be an 80% accurate classification of a person at or above a BrAC of 0.10 level. The authors also noted a 32% false arrest rate in the overall statistics.

In 1983 the NHTSA commissioned Anderson, Schweitz and Snyder to develop standardized practical and effective procedures for police officers to use in reaching an arrest/no arrest decision. Field Evaluation of Behavioral Test Battery for DWI, DOTHS 806 475 (Anderson, Schweitz & Snyder, September 1983). The study tested the feasibility of using the three test battery in the operational conditions by police officers and was to secure data to help determine if the three test battery would discriminate as well in the field as it had previously in the laboratory. The end results of this study mirrored the statistical results of the laboratory testing previously summarized in 1981 by Tharp, Burns and Moskowitz in Development and Field Tests for DWI Arrest.

In 1995, a study funded by NHTSA was completed in Colorado to examine the validity of the SFSTs. The final report, entitled A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery (Burns and Anderson, 1995), describes results of arrests from seven Colorado law enforcement agencies.

The Colorado report is too incomplete and unreliable to draw any conclusions about the validity of the tests. First, the methodology results and data sections of the report are missing. Second, the data was generated by “volunteer” officers, which suggests possible bias. Third, there was no monitoring of data collection to verify the reporting methodology; the officers merely reported their results. Last, the results of the study are unclear because two different arrest standards were used for .05 to 0.10 BrAC and another for a BrAC above 0.10.

The NHTSA Student Manual provides cutoff scores for each test to optimally classify a person as above or below .10 percent. These decision rules were not used in the Colorado or Florida studies. (See below.) Incorrect arrest decisions in the Colorado Study are attributed to officers focusing on poor Walk-and-Turn and One-Leg Stand performance when the suspect’s Horizontal Gaze Nystagmus performance was normal.

Lastly, it is important to note that although the Colorado Study purports to be a “field study,” it fails to meet the recommendations of the authors of the NHTSA 1981 Final Report that the SFSTs be validated in the field for 18 months in locations across the country. See Development and Field Test of Psychophysiological Tests for DWI Arrest at 73.

 

Jack Stuster and Marcelline Burns were commissioned by the National Highway Traffic Safety Institute to evaluate the accuracy of the standardized field sobriety test battery to assist officers in making arrest decisions for DWI at alcohol concentrations below 0.10 percent. In August of 1998, their report was submitted to the National Highway Traffic Safety Administration. Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent, DOTHS (Stuster & Burns, August 1998). As the authors noted:

During the past sixteen years, NHTSA’s SFSTs largely have replaced the invalidated performance tests of unknown merit that once were the patrol officers only in helping to make post-stop DWI arrest decisions. Regional and local preferences for other performance tests still exist, even though some of the tests have never been validated. Despite regional differences and what tests are used to assist officers in making DWI arrest decisions, NHTSA’s SFSTs presently are used in all 50 states. NHTSA’s SFSTs have become the standard pre-arrest procedures for evaluating DWI in most law enforcement agencies.

Id. at 3.

The authors also found that prosecutors who were interviewed suggested that the optimum situation would be for all law enforcement agencies to restrict their field sobriety evaluations to the same standardized battery of three tests. Id. at 24. The 1998 study showed that the Gaze Nystagmus test had the highest correlation of accuracy when compare to the actual measured breath test level. In this regard the Gaze Nystagmus test showed a 65% correlation to the actual measured alcohol level. However, the authors of the 1998 study made it clear that:

Horizontal Gaze Nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle. The reasoning is correct, but it is based upon the incorrect assumption that field sobriety tests are designed to measure driving impairment.

Id. at 28.

The walk and turn test resulted in a 61% correlation to the actual measured alcohol concentration level, with the one leg stand test showing a 45% correlation with the actual measured alcohol level. Id. at 17. Approximately 10% of the individuals were determined to be falsely arrested by law enforcement in that their alcohol level was estimated to have been greater that 0.08 percent, but later found to be below that level. Id. at 18. Of interest is the range of BrAC that was not measured and correlated in the 297 individuals tested. The range of BrAC tested is from a .038 for 8 underage females to a 0.07 for 2 underage females. There were no individuals whose measured BrAC level reflected 0.08 up to approximately 0.13 percent in the study. Thus, no individuals were tested at BrAC levels ranging from what appears to be a 0.08 up to and including a 0.13 which resulted in the above-listed statistical analysis. Id. at 16.

While recapping the history of the NHTSA studies on roadside testing, Stuster and Burns recognized the limitations on relevancy of the NHTSA standardized tests, stating:

It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA’s SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indications of a driver’s BAC, rather than indications of driving impairment.

Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent, DOTHS-___ at 28, (Stuster & Burns, August 1998).

RELIABILITY AND VALIDITY OF SFST FIELD STUDIES

A scientific study should evaluate the effect of a variable or a test, controlling for the effects of extraneous variables as much as possible. Quasi-Experimentation: Design and Analysis Issues for Field Settings, 2-9 (Cooke and Campbell, 1979). In the case of SFSTs, a rigorous test of their validity would be to examine the correct classification rate using only information for the tests and not from the suspect’s driving performance, demeanor, smell, previous arrest record, etc. Accomplishing this level of control would probably require video taping only the relevant (officially scored) aspects of the SFST performance. Not one of the SFST studies discussed above employed any of these or other equivalent control measures and, subsequently, none accomplished a satisfactory level of control over extraneous variables.

Because officers had access to driver behavior and demeanor, the field studies did not specifically test the accuracy of the SFSTs as stand-alone tests. As stated in the Colorado Study, “Some of the information underlying an officer’s decision is not documented and cannot be examined.” Field Evaluation Study of the SFST at 17. In the San Diego study, officers may have also had use of PBTs, which would contaminate the test with the criterion – a fatal flaw. Even in the other studies, large proportions of the stops were unobserved, so officers could have used PBTs before scoring the SFSTs. In sum, the officers’ judgments of intoxication and arrest decisions were not solely due to the SFSTs and cannot provide solid evidence for SFST validity.

Moreover, the SFSTs have never been administered to a large, representative group of sober people. As acknowledged in the 1981 study, “Balance tests of various sorts show large individual differences in the performance of sober individuals…” Development and Field Test of Psychophysiological Tests for DWI Arrest at 83. When most psychological tests are developed, they are tested on a large sample to determine what is “normal.” The 1981 Study in recognizing the importance of a subsequent field evaluation stated that a “major effort is needed for a subsequent field evaluation, repeating essentially the same study design with a sample which is both larger and broader.” Id. at 73 (emphasis added).

Even with these issues, the National Highway Traffic Safety Administration published both student and instructor manuals to be used by law enforcement agencies for the detection and arrest of DWI suspects. DWI Detection and Standardized Field Sobriety Testing. The first set of manuals were printed in 1981 with subsequent publications in 1992 (PB 94-780228 Student Manual, PB 94-780210 Instructor Manual), 1995 (AVA-19911BB00 Student Manual, AVA-19910BB00 Instructor Manual) 2000 (AVA-20839BB00 Student Manual, AVA-20838BB00 Instructor Manual), 2002 (AVA-21135BB00 Student Manual, AVA-21134BB00 Instructor Manual), 2004 (Participant and Instructor Manuals, HS 178 R9/04), and most recently in 2006 (Student and Instructor Manuals, HS 178 R2/06). These manuals provided to law enforcement still do not incorporate the statistical results of Stuster and Burns wherein they attempted to validate the three tests SFST batter to alcohol levels below 0.10 percent. The manuals incorporate and instruct law enforcement on the statistical results of the three studies leading up to Field Evaluation of Behavioral Tests Batter for DWI, DOTHS-806 745 (Anderson, Schweitz & Snyder, September 1983).

SUMMARY OF NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION STUDENT AND INSTRUCTOR MANUALS FOR DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING

The National Highway Traffic Safety Administration has defined DWI detection as:

The entire process of identifying and gathering evidence to determine whether or not a suspect should be arrested for a DWI violation.

2006 SFST Student Manual (HS 178 R2/06) at pages IV-1; 2006 SFST Instructor Manual (HS 178 R2/06) at page IV-1. DWI detection is divided into three phases. Phase one being the vehicle in motion, phase two being personal contact and phase three being pre-arrest screening. 2006 SFST Student Manual at IV-2-5, 2006 SFST Instructor Manual, pages IV-1-4.

Phase one involves observing the vehicle in motion and deciding whether there is sufficient cause to command the driver to stop. 2006 SFST Student Manual at pages V-1-10, 2006 SFST Instructor Manual at V-1-13.

Phase two is personal contact with an individual. At this time the officer is to observe and interview the driver, face to face, in order to decide whether there is sufficient cause to instruct the driver to step from the vehicle for further investigation. 2006 SFST Student Manual, VI-1-6, 2006 SFST Instructor Manual, VI-1-10. It is at this point the officer makes observations to determine whether or not it is appropriate to order the individual to exit his vehicle to perform the standardized field sobriety testing.

Phase three is defined as “pre-arrest screening” to determine if there is probable cause to arrest the suspect for DWI by the use of the standardized field sobriety testing (psycho-physical tests) which have been identified and validated through NHTSA’s research program. 2006 SFST Student Manual IV, Section VII & VIII. 2006 SFST Instructor Manual, Section VII & VIII.

Proper training of a law enforcement officer under the NHTSA DUI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING curriculum consists of 16 sessions that span 22 hours, 45 minutes of instruction, excluding breaks. While NHTSA recognizes there may be some need of flexibility in the curriculum, they state that:

Proper training of law enforcement officer under the approved curriculum consists of 16 sessions that span 21 hours, 30 minutes of instruction, excluding breaks. While NHTSA recognizes there may be some need of flexibility in the curriculum, they state that:

All of the training objectives are considered appropriate and essential for police officers who wish to become proficient at detecting evidence of DWI and at describing that evidence in written reports and verbal testimony. All of the subject matter is considered necessary to achieve those objectives. All of the learning activities are needed to ensure that the students master the subject matter.

This course is “flexible” in that it can easily be expanded since it does not cover all dimensions of DWI enforcement.

SFST Instructor Manual (2006) at 7.

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

• THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER
• THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE
• THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE.

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

SFST Student Manual (2006) at VIII-19.

Unfortunately, many police agencies approve deviations from these approved and validated field sobriety test procedures without challenge from the defense. While no studies by NHTSA or any other agency suggest or allow for deviation from the standardized procedure for administering field sobriety tests, the latest and greatest instructor’s manual states the following:

During training, the Standardized Field Sobriety Tests (SFST) must be administered each time exactly as outlined in this course. For field conditions, refer to page 1 of the Preface.

 

SFST Instructor Manual (2006) at 8.

The procedures outlined in this manual describe how the standardized field sobriety tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the filed, because such conditions will not always exist. Even when administered under less than ideal conditions, they will serve as useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.

 

SFST Instructor Manual (2006) Preface.

CONCLUSION
Currently at least in the State of Washington, it is not illegal to have consumed alcohol and driven a motor vehicle. It is only when the alcohol affects someone’s ability to drive to any appreciable degree that it becomes a crime. See State v. Hurd, 5 Wn.2d 308, 105 P.2d 59 (1940) and State v. Hansen, 15 Wn.App 95, 546 P.2d 1242 (1976).

In the absence of foundation testimony establishing the reliability and relevance of field sobriety tests and physical observations to show alcohol-induced impairment of the ability to drive a motor vehicle, such test results and observations should be excluded from use as that type of evidence. In any trial which does not involve a breath test, it is evident from the above-discussed studies that the standardized field sobriety tests are not relevant and should not be admissible in the DUI trial.

Before such testimony should be introduced it must be shown to be relevant (ER 401) and more probative than prejudicial (ER 403). In order to show this requisite probative vale, a foundation must be laid showing that there is a physiological relationship between the consumption of alcohol and the decreased ability to perform the specific physical tests requested by the officer. In the absence of such showing, the prosecution should be precluded from making any reference to said tests. In the absence of a proper foundation, the tests are either irrelevant or unduly prejudicial.

ER 104(b) requires:

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

 

It is respectfully suggested that a court in its exercise of discretion should be guided by the comment to section (b) of ER 104 which states in pertinent part:

This section is the same as FR 104(b) and de-fines a procedure for handling the situation in which a party wishes to prove Fact A, but Fact A is relevant only if Fact B is established. The order of proof under this Rule, as generally, is determined by the Judge. Rule 611. The Court, in its discretion, may decide whether to hear evidence of Fact A or B first, taking into account the relative prejudice of having the jury hear one rather than the other if the proponent failed to offer evidence of one of them sufficient to warrant a finding of its truth. Because of this danger of prejudice, the Rule should be used with caution, especially in criminal cases….

Fact A in the instant case is that the defendant’s allegedly poor performance on the field tests is a result of and therefore proof of his intoxication. Fact B is that the field “sobriety” tests demonstrate a reliable, trustworthy and recognized relationship between the consumption of alcohol, the ability to perform the specific field “sobriety” tests properly and driver impairment. The prosecutor should be required to lay the proper foundation (Fact B) before any reference is made to the results of said field “sobriety” tests (Fact A).

Any testimony that infers field sobriety testing demonstrates an individual’s ability to drive a motor vehicle is impaired or affected to an appreciable degree should not be allowed unless it can be said with substantial assurance that the presumed fact (driver impairment) is more likely than not to flow from the proven fact (field sobriety tests) on which it is made to depend. c.f. State v. Kovac, 50 Wn.App. 117, 120, 747 P.2d 484 (1987) quoting from Turner v. U.S., 396 U.S. 398, 405, 90 S.Ct. 642 (1970).

In the past, trial courts and case law have allowed for the inappropriate perpetuation and perseveration of relevance and reliability associated with field sobriety tests without any foundation whatsoever. The recent case of State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000) suggests that he courts in Washington recognize that field sobriety testing in the State of Washington has gone through significant changes and testing to determine their validity and reliability. The Supreme Court in Baity determined that if any evidence of testing by an officer as it relates to DRE is to be allowed (which includes one leg stand, walk and turn and AGN), the individual must have gone through the appropriate training and conducted the tests in accordance with the NHTSA standards.

In the case of U.S. v. VanGriffen, 874 F.2d 634 (9th Cir. 1989), it was determined that manuals as it relates to field sobriety testing were relevant and could be used as a party admission under ER 801(d)(2).

In the case of State v. Meador, 674 So.2d 286 (Fla.App. 4 Dist. 1996), the court ruled that any reference to the “exercises” by using terms such as “test”, “pass”, “fail”, or “points” creates a potential for enhancing the significance of the observation in relationship to the ultimate determination of impairment, giving them an aura of scientific validity and therefore, such terms must be avoided to minimize the danger that a jury will attach greater significance to the results of the “field sobriety exercises”. Id. at 833. The court also noted that the defendants:

…do raise genuine concerns about the scientific validity and reliability of the field sobriety exercises in predicting impairment. The studies conducted by NHTSA revealed that there is no reliable numerical correlation between performance on the field sobriety tests and breath alcohol concentration, let alone impairment.

Id. at 832.

In the case of State v. Homan, 89 Ohio St.3d 421, 732 N.E.2d 952(2000), the Ohio Supreme Court ruled that for the results of any field sobriety tests to serve as evidence of probable cause to arrest an individual for driving under the influence, the police must have administered the tests in compliance with the standardized test procedures by NHTSA. The Ohio Supreme Court determined:

The HGN test is not the only field sobriety test that requires special care in its administration.

Id. at 425.

The court went on further to stat that there must be strict compliance by the law enforcement officer with the NHTSA standards. (This is as opposed to substantial compliance.) In ruling the need for strict compliance, the Ohio Supreme Court stated:

…In the substantial-compliance cases, the minor procedural deviations that were at issue in no way affected the ultimate results. In contrast, it is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the results. Moreover, our holdings in the substantial-compliance case were grounded, at least in part, on the practical impossibility of strictly complying with the applicable administrative regulations. In contrast, we find that strict compliance with standardized field sobriety testing procedures is neither unrealistic nor humanly impossible in the great majority of vehicles stops in which the police choose to administer the tests.

Homan at page 426.

We, as attorneys, should demand that courts analyze “field sobriety tests”, question their relevance and rule on their admissibility or use in light of the numerous scientific studies commissioned by the National Highway Traffic Safety Administration. Until the required foundational training and background of the arresting officer is presented under ER 702, the results of standardized field sobriety tests as well as any reference to them as “sobriety tests” must be suppressed.

Until the required foundational training and background of the arresting officer is presented under ER 702, a defendant’s motion to exclude or suppress the results of standardized FST or any such tests, as well as any reference to them as “sobriety tests”, must be granted.

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