Monday, August 26, 2013

Free in Kentucky: How Accurate are Field Sobriety Tests???

Free in Kentucky: How Accurate are Field Sobriety Tests???: You would think that would be an easy question to answer, but it isn't. The Standardized Field Sobriety Tests (sometimes referred t...

How Accurate are Field Sobriety Tests???

Posted by Attorney Greg Simms, 502.618.4949

You would think that would be an easy question to answer, but it isn't.

The Standardized Field Sobriety Tests (sometimes referred to as "SFSTs" or "FSTs") that are the staples of Law Enforcement sobriety testing today, include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W&T) and the One Leg Stand (OLS) tests.

The tests were conceived by the Southern California Research Institute (SCRI) around about 1975.  I presume these people were academics, and not actual doctors.  And for the purpose of this blog we will assume that they were not funded by an agency or company with any outside interests - that the people at the SCRI were genuinely unbiased.

The HGN is the test where a police officer puts a finger in front of your face, and moves it around.  They tell you to follow their finger with your eyes, and the officer looks for involuntary jerking of the eyes, called "nystagmus."  This word is pronounced most commonly as "nis-TAG-muss" and less commonly as "na-STY-muss."

The walk and turn test and one leg stand tests are pretty self explanatory.  If you can't figure them out, raise your hand and Tommy will come along and hit you in the head with a tack hammer...

Anyway, when the SCRI developed the tests in 1975, they gave a percentage of accuracy for each test in determining the impairment of a subject test taker.  Those percentages are as follows:

-The HGN alone, was 77% accurate
-The W&T alone, was 68% accurate
-The OLS alone, was 65% accurate

and the combination of the HGN and W&T yielded an accuracy of 80%.  If you have any questions about math, feel free to text my friend, Jeremie Wade.  He loves that.

These " percentages of accuracy" are legitimate if, and only if, the tests are performed correctly by the police officer, and only if the test results are interpreted correctly by the police officer.

Let me expound on that just a little bit.  There are a lot of details involved in giving these tests.  Specificities that the officer has to remember.  For example, when performing the HGN test, the officer's finger should be between 12-15 inches in front of the subject's face.  A lot of officers have forgotten this information years after learning it, and some don't remember the numbers correctly (for some reason a lot of officers think it's 12-18 inches.  

In addition, and maybe more importantly, the guidelines for the tests state specifically that the officer is always supposed to turn the subject test taker AWAY from any flashing lights (like the cruiser's emergency lights).  This makes sense because the officer is looking for "jumping" in the eyes, and flashing lights can cause your eyes to jump, or jerk.  Surprisingly, I have found that an extremely high percentage of police officers do NOT turn subjects away from the flashing lights - like 50% or so.

The problem with doing the tests wrong, is that - obviously - you can get bad results.  Even the guidelines state specifically that "if any one of the standardized field sobriety test elements are changed, the validity is compromised."  The book seems to think that's pretty important, because in the book, that writing is in all caps, and bold letters.

There are a LOT more details associated with performing the HGN test - like the seconds it takes to do a full sweep, the method for determining the onset of nystagmus prior to 45 degrees, and the specific time of the hold at maximum deviation.  And we haven't even started on the W&T and OLS, which are also frequently performed incorrectly.

So the answer to the original question is - we kind of don't know.  We know how accurate the SCRI says the tests are supposed to be if they are done correctly.  But we also know that a lot of police officers don't do them correctly - and that the guidelines say that compromises the validity of the tests.

So... my bad.  I hate to give you a question like that, and then not answer the question.  That must be frustrating for you.  If it makes you feel better, I empathize with you.

If you have any more questions on field sobriety tests, let me know.  Feel free to contact me, Greg Simms, at 502.618.4949.  Or drop by.  My door is always open.

Questions Answered in this Blog Post:  How accurate are Field Sobriety Tests FSTs SFSTs; what is the accuracy rate of HGN W&T OLS; accuracy for Horizontal Gaze Nystagmus, Walk & Turn and One Leg Stand tests; how can I find a good DUI lawyer in Louisville Kentucky; DUI lawyers for Elizabethtown Kentucky; Hokum Field Sobriety tests?

Sunday, August 11, 2013

The Police Have Been Doing Roadblocks Wrong.

So, I got a published case from the Court of Appeals reversing a conviction against one of my clients this week.  That’s pretty rad.

To put this in perspective – if you get convicted at a jury trial, you have one appeal “as a matter of right.”  That means you have a constitutional right to have a higher court look at the case and determine whether something was done wrong.  And if they think the original judge made a mistake, it’s possible for that higher court to reverse your conviction.

If that higher court doesn’t think the original judge made a mistake, you might be out of luck.  You don’t have any more appeals as a matter of right.  However, that isn’t exactly the end of the line.  You can petition the next highest court for “discretionary review.”  That means you can ask the next highest court to take a look at your case, but they aren’t obligated to do so.  They can basically tell you to go fly a kite.  In fact, most of the time they do.  And they don’t even have to give you a reason why they turned you down.

If you started out in District Court, your appeal as a matter of right would be to the Circuit Court in that county, and then your motion for discretionary review would be made to the Kentucky Court of Appeals.

I don’t know what the percentage of acceptance for motions for discretionary review is – I want to say less than 20% but I’m just guessing.  But I can tell you that after the Court of Appeals accepts a case and gets out a ruling, less than 15% of those that are taken up become published cases.  So it is very rare for an attorney to get published caselaw.  Some lawyers go their whole careers without getting anything published by the Court of Appeals. 

In the case I’m talking about today, we started out in District Court – it was a DUI case stemming from a police roadblock.  I made the argument that the roadblock wasn’t done correctly (a violation of my client’s Constitutional rights), and the District Court disagreed.  We tried the case before a jury.  After a short trial* my client got convicted of DUI, second offense, open container, and the failure to wear a seatbelt.

My point on the roadblock issue is this:  The police didn’t have a “pre-approved start and stop time” for the roadblock, and that’s too much discretion for a police officer to have.  This argument was kind of a new twist on some existing law.  The law on roadblocks, boiled down, is this:  Instead of having individualized suspicion to pull someone over, police can use roadblocks if, and only if, they follow some guidelines in order to limit the discretion of the officers implementing the roadblock. 

There’s a list of guidelines for the police to follow, but the law in Kentucky has been that the failure to follow some of those guidelines won’t necessarily make the roadblock unconstitutional.  The guidelines are supposed to be used as a kind of balancing test.  But I was asking the Court of Appeals to recognize that some of those guidelines are more important than others, and that the failure to adhere to some of the important ones can be fatal in some roadblock cases.  To make the rubber hit the road, in the case we’re talking about today, I’ll give you 2 different examples of mistakes the police made.  1) They weren’t wearing the approved and extremely fashionable safety vests that police are supposed to wear during a roadblock.  2) The start and stop time of the roadblock was not pre-approved by a supervisor.

Nobody really gives a damn about whether the police wear their safety vests (I mean, police should, because it can be dangerous out there – but, still).  The failure to wear them doesn’t give the police any more discretion, or power.  However, if you let police determine their own start and stop times for the roadblock, they can look down the line and see some white people coming – and decide that the roadblock doesn’t start just yet.  As soon as the black guy rolls up, the roadblock starts.

The lack of a pre-approved start and stop time gives the police more power – which can be dangerous.  That can lead to the exercise of their own personal bias or prejudices.  There is “grave danger’ inherent in allowing law enforcement officers to exercise ‘standardless’ and ‘unconstrained’ discretion in conducting traffic stops.” Cox v. Commonwealth, cite to come later, citing Prouse, 440 U.S. at 661-662, 99 S. Ct. at 1400-01.**

Fortunately for me and for my client, the Court of Appeals agreed with me.

This case, Cox v. Commonwealth, stands for the proposition that some roadblock guidelines are more important than others – and that the lack of a pre-approved start and stop time is one of those very important factors. 

Part of the cool thing about this case is that it doesn’t just apply to my client.  It applies to all roadblock cases in Kentucky.  That means that of all the roadblock DUIs in Kentucky right now, an extremely large percentage of those cases can now be dismissed because the police haven’t been doing what they were supposed to, in order to protect the Constitutional rights of the public.  And that’s pretty awesome.

For all my lawyer friends who want to cite the case in an existing roadblock case, you can read the entire opinion at:

If you have any questions about this case, or Kentucky Roadblock DUI law, or anything else, you can call me at 502.618.4949.  My door is always open.

*That’s an inside joke for Jon Spalding, who will probably never read this.  So I’m not sure why I included it.

** Yeah, that felt good.

Questions Answered in this Blog Post:  How can I find a good Roadblock DUI lawyer in Kentucky; how to defend a roadblock DUI; DUI lawyer in Elizabethtown Ky; Louisville DUI lawyer; what does the Cox v. Commonwealth roadblock DUI case mean for police procedures?