Mitchell Driskell

Published on August 18th, 2021 | by Mitchell Driskell


The Local Lawyer: “Booze Clues: Failing the Standard Field Sobriety Test”

Although I represent people accused of driving under the influence (DUI) for a living, I do not want anyone impaired to get behind the wheel. I spend my time helping people who make that very mistake, but I do not want people to make that mistake in the first place.

With Ole Miss starting and new and old students coming back to town, I thought it might be a “scared straight” article if I gave readers a little behind-the-scenes look at how law enforcement, lawyers, and judges look at a person’s performance of the well-known Standard Field Sobriety Test (SFST). Most people do not know that the SFST is judged on fifteen specific “clues.” DUI cases often turn on these “clues,” with lawyers and police officers arguing about the clues, and Judges deciding if and how many “clues” existed. Now you will know about the fifteen DUI “clues” that might cost you your driving privileges and clean record.

The DUI investigation process can be broken down into three phases, and the arrest/no arrest decision is based off information learned through all three phases. Phase 1 is “Vehicle In Motion,” where the officer observes signs of impairment such as weaving, failing to use signals, unusually slow driving, and other driving errors. Phase 2 is personal contact after you are pulled over. The officer is trained to look for indicators of intoxication, such as slurred speech, red-glassy eyes, smell of alcohol, inability to retrieve your driver’s license, and even admissions of alcohol consumption.

Based on Phases 1 and 2, you might find yourself in Phase 3, the “Pre-Arrest Screening,” aptly named because an arrest usually happens if you get to this phase, where the officer administers the government-approved Standard Field Sobriety Test. The SFST has three sub-tests and a total of fifteen “clues” of impairment. Critics of the SFST say these tests are designed for failure, so do not put yourself in the position of being asked to perform them.

The tests comprising the SFSTs are considered “divided attention tests” that assess the suspect’s ability to perform mental and physical multitasking. You have to listen and follow directions while performing unusual physical movements. You have to think and move with balance. Today, the vast majority of the SFSTs will be videotaped by the officer’s body-worn camera or the camera affixed to the patrol car. The videos will be played in Court so the Judge can see for himself or herself how well (or poorly) you did—how many of the fifteen “clues” you exhibited.

I cannot tell you how many times I have had a client swear he or she aced the SFST only to get a video chock full of clues and sometimes embarrassing behavior. One client, a schoolteacher, even “flipped the bird” at the officer during the test. The videos do not lie, and—pro tip—do not be rude, crude, or even funny during the SFST. It is a bad look in court. Take it seriously and be polite.

The National Highway Traffic Safety Administration (NHTSA) developed the SFST and claims the test is “scientifically” validated as 80 percent accurate. Academics laugh at the “scientific validation” claim, pointing out that the NHTSA studies lack the basic analysis expected of scientific studies, have never been reviewed by outside scientists, and never replicated.

One private study of the Standard Field Sobriety Test had a group of entirely sober people perform the test for officers who were told that the test group would be a mix of sober, drinking, and drunk subjects. The officers concluded that almost half of these sober drivers were impaired based on the SFST’s fifteen “clues” of impairment. That means a 50/50 chance a sober driver being found DUI, and, on the street, those sober drivers would have been arrested for DUI. The same result can happen on the streets of Oxford, especially late at night where SFSTs are performed in situations where anticipate college-aged drivers are almost presumed drunk or high. Do not put yourself in the position of facing a DUI test that studies have shown has a 50/50 chance of being dead wrong.

A DUI suspect does not “pass” or “fail’ the SFST, but rather the officer determines whether any and how many “clues” of impairment are observed during the test. There is no magic number of clues that must be found. There is no mathematical formula for adding up the clues, and even one or two clues can result in a DUI arrest that you must defend in Court. One of the main criticisms of the SFST is that the judgment is left to the discretion of the officer who only performs the test if he or she already suspects DUI and, by definition, is not objectively observing performance. The good news is that in today’s world we can obtain the videos of the test by subpoena and let the Judge decide if any or how many clues existed in the test performance.

The first SFST test is the Horizontal Gaze Nystagmus test. The concept behind the HGN is that alcohol consumption causes a disruption of your vestibular system and causes your eyes to bounce and jerk. The purpose of the HGN is to see whether your eyes bounce or jerk when they are moved from side to side and to attempt to measure when that bouncing begins as your eyes move. There are three clues of this test: (1) lack of smooth movement; (2) your eye bounces when you look out of the corner of your eye; and (3) your eye bounces too soon when looking to the side. These are involuntary eye movements that you cannot control. However, there are many other causes of these types of eye movements; demonstration of the “clues” might not mean impairment, and the test must be properly administered according to the NHTSA testing protocols.

The next SFST test is the famous Walk & Turn test. You will receive very specific instructions on walking down a line, “heel-to-toe,” turning around and walking back. Google the test for the word-for-word instruction protocols. There are eight clues, and, pay attention, because the first two come from the instruction phase of the test: (1) Can’t keep balance during instructions; (2) Starts too soon; (3) Stops walking; (4) Misses heel-to-toe; (5) Steps off line; (6) Uses arms for balance; (7) Improper turn; and (8) Incorrect number of steps. The test is difficult when stone sober and about half of sober people demonstrate one or more impairment clues when performing the test. Something as simple as using your hands for balance, which people do when sober too, is considered a “clue” of DUI. You will be very nervous, making performance difficult and making clues more likely. But, if you do very well, your lawyer can subpoena the video and play it for the Judge in Court.

The last SFST test is the One-Leg Stand where you are instructed to stand with one foot approximately six inches off the ground and count aloud until told to stop. There are four impairment clues: (1) Swaying; (2) Uses arms to balance; (3) Hopping; and (4) Puts foot down. Classic divided attention, balance plus the mental task of counting. A 1998 validation study claimed that 83 percent of individuals who exhibit two or more clues are legally impaired. Using arms to balance is a natural thing to do, but it is a clue of impairment under the SFST and might lead you to a DUI arrest. Again, you will likely be nervous, and your body will not be in the best condition for counting and balance.
After the test and evaluating the “clues,” the officer might (and probably will) arrest you for DUI. But there are many reasons why the clues do not support the conclusion that you are legally impaired to drive. Importantly, the SFST must be properly performed to even achieve the 80 percent accuracy the government claims in the test. The officer must follow the Standardized Protocol for instruction while demonstrating and explaining the tests and follow the Standardized Protocol for scoring the “clues.” The test must be performed under proper conditions, which prevent environmental factors (i.e. uneven ground, emergency lights flashing in your eyes, bystander interference) from inhibiting your performance. The SFST is not validated for people with physical disabilities, people over 65 years old, or people 50 pounds over their recommended weight.

Thankfully we live in an age where the videotaped evidence of the test can be shown to the Judge to show a lack of impairment, the lack of clues, or a misinterpretation of the clues. Your lawyer can subpoena the video and watch it with you, examine the clues like Sherlock Holmes and decide if you want to take your case to trial or work out another arrangement. Or, better yet, do not drink and drive at all. If you have any DUI-related questions, or would like me to speak to your friends or campus organization, please email or call me.

Mitchell Driskell has been an Oxford lawyer for twenty-one years. He practices criminal law, family law, business transactions, and civil litigation. Email him Follow him on Instagram @mdriskell, twitter @MODIIItweets, TikTok @DriskellLaw and on Facebook.

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