Once again I have heard from the lawyers for the state in a DWI trial that "field sobriety" tests help officers determine whether or not a person is ok to drive a car. This has to be one of the biggest frauds committed on juries not only in Lubbock, Texas but throughout at least the state of Texas. How so you ask. Well first let's start with the legal definition of "Intoxicated" in Texas. Our law says that a person is intoxicated if:
1. His or her Blood or Breath alcohol concentration is .08 or more at the time of driving; OR
2. That by the introduction of alcohol, drugs, dangerous drugs or a combination of, a
person has lost the NORMAL USE of his or her mental or physical faculties.
So, the police officer when administering these police motor skills does not have the evidential breath test and often testifies that once the person fails these "tests" that the officer has probable cause to arrest for dwi.
I often ask in cross-examination about the validity of these police motor skills tests. It goes something like this:
Q: Officer you testified that "bill" had 4 clues on the walk and turn?
A: Yes
Q: You have been trained on what you call the field sobriety tests?
A: Yes
Q: I issued you a subpoena to bring all the materials you have been trained on correct?
A: Yes
Q: Now turning to those materials, there are absolutely no studies, no manuals, no
documentation you can show this jury that a person who steps off a line or does not
touch heel to toe has lost his (or her) mental faculties, correct?
A: That's correct sir
Q: And there is no studies or manuals or documentation you can show this jury that a person
who steps off a line or does not touch heel to toe has lost his (or her) mental faculties,
correct?
A: Yes sir.
Glen Neeley, a dwi attorney in Utah blogs on this basic fallacy. He cites the study of the "inventor" of these balance tests and her acknowledgement that these balance tests cannot determine whether a person safely operate a motor vehicle. In fact, Marcelline Burns,, in her study entitled "Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent" writes on page 27 of the study as follows:
"Many individuals, including some judges believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess "face validity," that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities to driving tasks; that is, the tests seem to be relevant "on the face of it." 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 on the incorrect assumption that field sobriety tests are designed to measure driving impairment.
Driving a motor a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complex human performance, such as the required to safely drive an automobile, can be measured at roadside." Read Glen's blog here.
So let me see if I have this correct officer,
1. there are no studies to show that not holding your foot up while balancing on one leg
2. in the wind, on the side of the interstate,
3. while 18 wheelers come whizzing by,
4. while a police officer who has a gun on his hip,
5. while telling you that if you don't pass these "tests" you are going to jail,
I'm sorry officer there are no studies that say that not being able to do the above means that "bill" has lost his normal use of his mental or physical faculties?
Not that really seems fair wouldn't you agree?
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