What Other Tests are Part of the Field Sobriety Test and What Are the Problems?
Interviewer: We talked about the Walk-in-the-Straight-Line Test? What are some other tests? Can you give us some examples of some other tests that police officers and people do?
Jerald Novak: Generally, when a police officer pulls over a vehicle, goes over to the vehicle, and usually the driver will put the window down or the police officer will motion for the driver to put the window down, and they’ve already started taking mental notes. The police officer will say that you took too long to pull over or the police officer will put in his report that you pulled over too quickly. Then, when we he gets over to the car, he will say, he smelled a strong odor of an alcoholic beverage. Then, he’ll ask if the driver has been drinking. Usually, the driver will admit, “Yeah, I had a drink. I had two beers.” or whatever.
Then he starts with the first test which is called the HPN or the Horizontal Gaze Nystagmus Test. The problem with the Horizontal Gaze Nystagmus Test, there are lots of problems just like with the entire field test. The first problem is that what the police officer is doing is he is watching the driver’s eyes. He tells the driver to look straight ahead. He’s watching the driver’s eyes move from right to left, see if there’s any involuntary movement.
The first problem is that the police officer usually does this while the driver is seated in the car which means that the body of the driver is facing forward and the head of driver is turned at 90 degrees. Why don’t we try that experiment? Let’s sit in our chair right this second. Let’s turn our head 90 degrees. Do you feel a pressure if you turn your head to the left 90 degrees? Do you feel a pressure now on your left eye?
Jerald Novak: Of course you do. By turning your head like that, you’re putting pressure on that eye because of everything that’s being turned in your neck. That stuff was never given any validation testing from the seated position with the head turned to the left. Any observation the police officer makes in that position are completely unfounded and invalid.
Now, let’s say, the police officer does it the right way and gets you out of the car, and has you face the police cruiser, while he’s doing that test. Guess what? He is looking for involuntary movement of the eyes while those red and blue lights are flashing on and off. Guess what happens when lights are flashing on and off? Your eyes will move involuntarily.
Now, let’s say the police officer really knows what he’s doing and he turns you around so that your back is to the cruiser and he’s observing your eyes. There are two problems with that. First problem is that those lights are still flashing. They’re flashing forward past you and often times, there are reflectors like reflectorized signs, the chrome bumper on your car, the shiny paint on your car, all sorts of things that those lights can hit and bounce off of to, again, cause involuntary movement of your eye. This test is completely taken out of context.
Here’s the worst part. The worst part is that the police officer claims that he administered the test properly and that he observed this involuntary movement of your eye but because he’s looking at your eye and because he generally turns you away from the police car, it’s not being recorded on the video. We have to pretty much take his or her word for what he or she claims to be observing.
Interviewer: His words against theirs then. He could have someone turn around and essentially claim that the driver’s eyes were moving involuntarily when we have no evidence for that. Is that correct?
Jerald Novak: It’s not only do we have no evidence but even if the driver’s eyes were moving involuntarily, it may not be because of the consumption of alcohol or drug. It’s simply because the reflection of the light causing this onto the eye. Things start to go down rapidly after that. Usually, again, they start with the HPN, Horizontal Gaze Nystagmus and then, they move into the One-Foot-Balance Test or Walk-a-Straight-Line test that we previously discussed.
The One-Foot-Balance Test, they tell you to put your arms at your side, raise one foot off the ground six inches, put your arms at your side, and count to 30 by 1000, 1001, 1002, 1003, 1004. Then, the police officer will say, “And if at any time, you have to put your foot down, just put it down, and then raise your foot back up, and continue counting wherever you left off.” It sounds like a pretty easy thing.
Now, put your arms at your side. Lift your foot six inches off the ground. Count to 30 by 1000. If I have to put my foot down for any reason, just go ahead and do that, and then raise it right back up, and continue counting from where I left off. There’s only one problem with that. That’s not the correct instruction because when you tell somebody, if you have to put your foot down, just go ahead and do then, and then raise it right back up, what you’re doing is you’re giving them permission that if they want to put their foot down, it’s okay to do it, but in fact, you can only get two marked off for that test before it’s a failure. Guess what one of the mark-offs is? Putting your foot down.
You only get two opportunities or … You get one opportunity to do it perfectly, and if you don’t do it perfectly by two small things, then you failed the test. If you raise your arms away from your body more than six inches, that’s a mark off. If you put your foot down for any reason, that’s a mark off. If you don’t count to 30, that’s a mark off.
Interviewer: My best and brightest, I could do that for ten seconds. Wake up fresh early in the morning, out of the shower, you have a nice breakfast and then stand on one leg, maybe ten seconds tops. Forget about the counting.
Jerald Novak: Don’t take this the wrong way but imagine if you were wearing high heels. You’ve got some person; maybe you’re wearing a cowboy boot. It’s got a ramped high heel. Maybe you’re a young woman, and you had a pair of high-heeled shoes on. Can you imagine? On a high-heeled shoe or high-heeled female shoes, I can only imagine how narrow that rear heel is and I’m balancing on one foot wearing these high heels. The police officer will say to you, “You know what? That’s okay, ma’am. You can take off your shoes.” This is in the middle of the winter. We got all the snow outside. You’re going to take off your shoes and socks.
Let’s give him a break. Let’s say, it’s not in the winter. Let’s say it’s the middle of summer. Have you ever taken off your shoes and then you’re stocking, and feet on the side of the road which is covered with brick, covered with dust, covered with dirt, covered with stones and pebbles, tiny pebbles that just pierce your feet.
Interviewer: Right, exactly.
Jerald Novak: Anyway, I said, it’s really not a good test. What if you’re overweight? What if you had a bad back? What if you had bad ankles? What if you had a bad leg? What if you have one leg shorter than the other? What if you have a balance problem? There are a lot of people that have these types of problems. As a result of them having some issue, those tests are really not applicable to those particular participants.
Interviewer: I got it. I’m not the lightest guy around. I’m not a good happy 250 pounds, and I also have a busted ACL. I can’t imagine, like I said, even lasting ten seconds.
Jerald Novak: The criteria for the test also say that if you’re over 65, it’s not a good indicator of your ability. The criteria also says that if you’re more than 50 pounds overweight, it’s not a good criteria of your ability to perform that test or it’s not a good measurement of whether you’re impaired or not. Even in the studies, they acknowledge there are certain reasons someone would do poorly without being under the influence of alcohol or drugs.
That was in the third test. We started with the HGN, usually moving to the One-Foot-Balance or the Walk-a-Straight-Line. Then, they’ve got a couple of other tests they may decide to do. One test is where they put some coins on the ground and they ask you to bend over and pick up the coins without falling down. Usually, they put a dime down because of course; the dime is the smallest and the hardest to pick up.
Interviewer: So hard to pick it up.
Jerald Novak: I don’t know about you, but look around. If you walk through life on a daily basis, you look around at people’s hands. Some men have really thick fingers. Some women on the flip side of that coin have really thin fingers and have fingernails and can more easily pick up that dime versus some guy who’s got short nails and thick fingers.
Interviewer: The coin on the ground pick up, are you able to go down and pick it up by lowering your body down as if you’re going to pick up something the proper way?
Jerald Novak: No. No, they want you to bend at the waist. They don’t want you to bend at the knees. Remember, these tests are designed for you to fail them. They’re really not designed … Let’s face it. We start out with a test that’s a divided attention test. You’re doing two things. Let’s apply it to the Walk-a-Straight-Line.
One, you have your arms at your side. Two, you’re counting out loud. Three, you’re taking nine steps. Four, you’re kicking one foot on the line while you remove the other foot. You’re taking those four pivoting steps until you get to a 180 degree turn. Six, you’re going to continue to keep your arms at your side. Seven, you’re going to take nine more steps while you’re counting out loud with regard to that test, and go down to the finish line. You’re doing a lot of things there.
Interviewer: I already lost it in the third step on that one.
Jerald Novak: If you stop counting out loud, you’ve been marked off the test. Again, that’s a test where you can only get two mark-ups and you fail that test. If you take too many steps, you’re going to lose a mark. If you take too many steps or too few steps, that’s a mark off. If you raise your arms more than six inches away from your body, that’s a mark off. If you don’t do the proper turn, that’s a mark off. If you stop while you’re taking your test … Now, remember, the instruction didn’t say you could or couldn’t stop but if you stop, you can get a mark off. If you go too fast, you get a mark off. If you go too slow, you get a mark off. Of course, they don’t tell you how fast or slow to go.
The Imaginary Line
I almost forgot the most important thing. This is an imaginary line. In most cases, there is no line on the ground. How can a police officer say, step off this line when it’s imaginary? Did he tell you that this imaginary line was three inches wide? No. Did this police officer tell you that the imaginary line was one inch wide? No. In whose imagination did you step off the line; in his imagination or your imagination?
Interviewer: Lines aren’t always straight or even the same direction; it’s all based on perception, what one refuses to believe.