Ten Most Useful DWI SFST Manual Quotes
The following quotes are more accurately the ten most useful and/or amusing quotes in the DWI Student Manual.1 This manual, of course, is the instruction book that most police officers use when learning how to give drivers sobriety tests. They are from the 2006 edition of this manual; a 2013 edition, which is in most every aspect identical, has now been published, and a new list is being created. But as to the 2006 edition, and without further ado…
1. “The original research indicated that certain individuals over 65 years of age, back, leg or inner ear problems, or people who are overweight by 50 or more pounds had difficulty performing this [One-Leg Stand] test.”.
This is one of the most useful quotes in the NHTSA Manual because of the reference to the category of people “overweight by 50 or more pounds.” Prosecutors routinely roll their eyes when a defendant testifies about his or her old back injury to explain difficulty performing this test, but prosecutors are at a loss to defend this test with an obviously overweight defendant. Police officers rarely ask someone how much they weight before they give someone this test, and I have never heard a cop ask someone to estimate how many pounds he or she was overweight. Perhaps they consider this an officer safety issue: “Ma’am, now that I’ve stopped you for not using your turn signal for a full 100 feet, and have you standing out here on the side of the road in the rain, can you tell me about how many pounds would you consider yourself to be overweight?” But in all seriousness, most of us have a pretty good idea about whether we are overweight, and if so, by how many pounds. Officers usually testify that they reserve their decision on whether to arrest someone until at least the end of the three standardized field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn and the One-Leg Stand test.) In that circumstance, an officer’s use of an inappropriate test for that subject is a potentially significant problem for the prosecution. Once this quote is read to the officer, and the officer acknowledges having been educated on that point, don’t expect to hear the prosecutor talking much about the One-Leg Stand test during the remainder of the trial.
2. “IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.”
Not only is this quote from the National Highway Traffic Safety Administration (NHTSA) DWI Detection & Standardized Field Sobriety Testing (SFST) Student Manual, it is set out in all bold and capitalized letters in the manual. Officers are quick to agree that the value of the three standardized field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn and One-Leg Stand) is derived from their having been comprehensively studied nationally; they are standardized tests, which must be administered in the precise manner set forth in the NHTSA manual. Officers will agree that there is no flexibility in the manner in which these tests must be administered, or the tests lose their value as “standardized” tests. Without the test being administered in the standardized manner, the research support behind the particular test disappears. This is one of my top ten quotes for obvious reasons. When one reviews the series of administrative requirements of each of these three standardized field sobriety tests, particularly where the test is video-recorded, it is not uncommon to find an officer failing to comply with the standardized protocol (i.e. skipping a required step). For example, one of the steps toward the beginning of the One-Leg Stand test is: “Please stand with your feet together and your arms down at the sides, like this.” Another example is that once an officer tells a subject to stand in the “instruction stage” of the Walk and Turn test, the officer should say: “Maintain this position until I have completed the instructions. Do not start to walk until told to do so.” These verbal instructions are set out verbatim in the NHTSA SFST Student Manual. The officer is to administer these tests using these precise “verbal instructions.” Good officers (unless they are having an off day) never deviate from these steps. And each of these steps is important. The research on these three tests was conducted using these precise instructions and procedures. It was only by comparing the performance of individuals engaging in these tests under these precise conditions and circumstances that the tests have documented value in helping to determine whether a subject is impaired. For example, we do not know whether individuals not being put “at attention” prior to the One-Leg Stand test are better able to focus on the officers’ directions, in comparison to a subject allowed to stand casually and listen to the officer. Are people in those two groups going to retain the officers’ directions as clearly as one another? Where an officer deviates from any one step, the test becomes a haphazard modified version of a validated test. It is no longer standardized. It is critical to compare the required verbal instructions for each standardized field sobriety test against any video-record, written police report or the officer’s in-court testimony.
3. “There are a number of techniques you can use while the driver is still behind the wheel. Most of these techniques apply the concept of divided attention. They require the driver to concentrate on two or more things at the same time. They include both questioning techniques and psychophysical (mind/body) tasks.”
“An example of the first technique, asking for two things simultaneously, is requesting that the driver produce both the driver’s license and the vehicle registration. Possible evidence of impairment may come to light as the driver responds to this dual request. Be alert for the driver who:
- Forgets to produce both documents;
- Produces documents other than the ones requested;
- Fails to see the license, registration or both while searching through wallet or purse;
- Fumbles or drops wallet, purse, license or registration;
- Is unable to retrieve documents using fingertips.”
Officers make a point to emphasizing the importance of divided attention tests to juries. Of course this is most commonly explained in conjunction with the person’s performance during the roadside tests. However, it is important to note that a number of an officer’s directions to a driver, while the driver is still sitting behind the wheel, are intended to test the driver’s ability to perform a divided attention task, and that such activities qualify as divided attention tasks by the National Highway Traffic Safety Administration. The officer is well aware of this and is observing to identify any problems the driver may have with these tasks. However, a driver who is later arrested may not have exhibited any problem with these divided attention tasks. The arresting officer is aware of this, but is unlikely to volunteer this knowledge. Jurors need this information to reach a fair verdict. Once this issue is raised by the defense, a keen prosecutor will make sure that the jury is informed that the manual says that these divided attention tasks are not as reliable as the standardized field sobriety tests (if administered properly) but they cannot deny that they meet the elements of “divided attention” tasks. Even where a driver exhibits one of these “clues,” it is important to review this list of potential errors, so that the officer can acknowledge that he or she did not observe any of the other divided attention problems.
4. “How the driver steps and walks from the vehicle and actions or behavior during the exit sequence may provide important evidence of impairment. Be alert to the driver who:
- Shows angry or unusual reactions;
- Cannot follow instructions;
- Cannot open the door;
- Leaves the vehicle in gear;
- “Climbs” out of vehicle;
- Leans against vehicle;
- Keeps hands on vehicle for balance.”
Officers and prosecutors often either ignore or downplay the significance of how a driver exits the vehicle. This quote serve to establish that the manner in which a driver exits the vehicle is an important part of a DUII investigation. This aspect of an officer’s investigatory procedure is not a side issue. The officer is instructed to pay strict attention and to identify any of the actions listed above. It is not uncommon for a driver who is later arrested not to have presented a single one of these signs of impairment. The officer is usually happy to confirm the absence of these signs, with a gentle nudge from the polite defense attorney.
5. “The following block outline format identifies some of the essential ingredients in a DWI offense (arrest) report:”
Officers are trained on the “essential ingredients” to be included in their police reports. When an officer testifies that a driver may or may not have exhibited a particular sign of impairment (“I just don’t recall,” the officer may say) this quote comes in handy. It is not uncommon for an officer responding this way to insinuate that the defendant may have exhibited the sign, but the officer simply made no reference to it in the arrest report. In this circumstance, use the list in the manual below this quote. As an example, and in reference to quote number 4 above, one of the things the manual directs an officer to include as an “essential ingredient” reads as follows:
- “Exit From Vehicle – Record your observations of the subject’s exit from the vehicle and include any unusual actions taken by the subject.”
The list of essential ingredients in the NHTSA Manual is a long one which includes 17 categories of information beginning with “Initial Observations” and ending with “Additional Chemical Test.” When an officer is instructed to include one of these essential ingredients, and does not, especially when the officer suggests to the jury that the sign or symptom may have existed, it is important to point out this breach in the investigative protocol.
6. “Look at the jury when testifying, even when the defense attorney asking the question is not standing near the box. Always talk to the jury, and maintain eye contact with them, even if it feels unnatural to you.”
I include this quote in my top ten only because I am repeatedly amused with the last phrase: “even if it feels unnatural to you.” I keep picturing some poor officer cringing inside and as he turns to the jury, only to be a good foot soldier intent on following orders. There is just something cruel about the government making a witness who is uncomfortable turning and speaking directly to, and making eye contact with, a jury, when it feels “unnatural” to him or her.
7. “A defense attorney will always ask whether you have an independent recollection of the case. That is, aside from your police report or other notes, do you remember the event? Any fact that you remember about the stop and/or arrest of the defendant would be sufficient to answer this question positively.”
This quote has a WOW factor. It truly calls the objectivity of the National Highway Traffic Safety Administration Standardized Field Sobriety Testing Manual into question. It appears to suggest to an officer testifying under oath and penalty of perjury that he or she should suggest to a jury that the officer has a general recollection of an event, when the witness only recalls a single fact from that event. “Any fact that you remember about the stop and/or arrest of the defendant would be sufficient to answer this question positively.” Really? Is the officer really being trained that if he or she only remembers that the defendant was driving a cherry red Camaro, and nothing else, the officer should answer the question, “Do you have an independent recollection of this case?” with “Yes”?
I have never spent any time in Chicago other than landing at the airport and switching planes. If someone who was thinking of vacationing in Chicago asked me whether I have ever visited Chicago, I would say something like, “Not really, just passed through the airport.” In my opinion, simply saying “yes” to this question would be misleading.
8. “Always give definitive, positive, sure answers.”
This quote is downright disturbing. Somewhat similar to quote 7 above, this directive to the officer suggests that the officer not allow any level of uncertainty to be a part of his or her answer to a question. While this statement is prefaced by the direction that it is okay to indicate that the officer cannot remember or does not know an answer, perhaps it’s the word “always” that strikes me, and I hope most fair-minded people, the wrong way; “Always give definitive, positive, sure answers.”
9. “In the event drug impairment is suspected the Romberg Balance test should be administered to evaluate the suspect’s internal clock.”
There is nothing worse than having an officer who is testifying in a DUII-Alcohol jury trial decide to suggest, even subtly, that the defendant may have also been using controlled substances. While there are pretrial procedures that a defense attorney can use to try to avoid this problem, it will arise. When it does, the above quote can allow a defense attorney to swing for the fences. Officers are told during their training that they should administer the Romberg Balance test if they suspect controlled substance impairment. If the officer did not give the person this test, then the officer either:
- Is not being truthful about having suspected drug impairment at the time of the investigation (and please note that the manual only says “suspected”; it doesn’t even say reasonably suspected, just suspected—any level of suspicion), or
- Knowingly or unknowingly ignored the directive that the officer “should” have administered this test.
Those are the only two options. Neither is good news for the prosecution. When I am defending a case, I will take either one: The officer investigating my client ignored the directives to which he was trained to ensure fair testing of individuals suspected of driving under the influence of intoxicants, calling into question his training and experience, or he or she has just committed perjury.
- “Simplicity is the key to divided attention field sobriety testing. It is not enough to select a test that just divides the subject’s attention. The test also must be one that is reasonably simple for the average person to perform when sober. Tests that are difficult for a sober subject to perform have little or no evidentiary value.”
- “Always demonstrate how you conducted field sobriety evaluations. If the prosecutor forgets to ask you to come off the witness stand to demonstrate, suggest that it will aid your testimony. Be certain, however, that you can do in court all the evaluations you asked the defendant to perform the night of the arrest. If you cannot do them, the jury will not expect the defendant to have done them properly.”
My last top ten quote is actually two quotes. They are found in different parts of the NHTSA SFST Student Manual, but read together, at the very least, they provide a source of amusement. The information and directives contained in these two quotes contradict one another. In the first quote, the officer is instructed “The [FST] test also must be one that is reasonably simple for the average person to perform when sober.” However, in instructing an officer as to how to present his or her evidence in court and encouraging the officer to perform physical demonstrations of the tests in front of the jury, the instructions include the statement: “Be certain, however, that you can do in court all the evaluations you ask the defendant to perform the night of the arrest. If you cannot do them, the jury will not expect the defendant to have done them properly.” What? Unless the officer has shown up in court drunk (a concession that even the most powerful police union may have difficulty obtaining during contract negotiations) how can one reconcile these two sections of the manual?
Well-trained police officers who take their jobs seriously and act as professionals accept the challenge to read, understand, and follow all of the directives in the NHTSA SFST Student Manual. They welcome critical analysis of their performance. It is the defense attorney’s job to hold them to this standard. Poorly trained officers, or ones who disregard these directives, must be exposed.
1 I reserve my unfettered right to change my top ten list at my whim. My list is in no particular order. All quotes are from the DWI (Driving While Intoxicated) Detection & Standardized Field Sobriety Testing Student Manual, February, 2006 Edition published by the US Department of Transportation, Transportation Safety Institute, National Highway Traffic Safety Administration. As of the date of this writing, June 13, 2013, the 2006 edition, which was released in 2009 (never underestimate the efficiency of United States Government) is the most current manual.