Photo courtesy of Jeffrey Smith

The One-Leg-Stand (OLS) test is the final validated test in the NHTSA approved battery of three sobriety tests. Like the other two tests, the OLS is a divided attention test, meaning the subject being tested must divide their attention on several different instructions to successfully complete the test.

Operating a motor vehicle safely requires the driver to divide their attention (multi-task) on a continuous basis. You should familiarize yourself with with this concept as it helps a judge or jury understand that these tests are not meant to “fail” the tested subject, but are meant to gauge their ability to perform multiple tasks at the same time – something a sober driver does all the time.

STARTING POSITION

Like the other two tests the subject should be instructed to stand with their feet together, heels and toes touching, and their arms down to their sides. The subject should be instructed to remain in that position while the rest of the instructions are being given. Once they have assumed that position ask them, “DO YOU UNDERSTAND?” Be sure to get a verbal acknowledgment that they understand before moving on to the other instructions.

Like the other tests the NHTSA Manual states that this test should be performed on a relatively dry, hard, and level surface. Use common sense here and go out of your way to ensure the safety of the tested person – this is your duty, but it also looks great in court.

Keep the subject in this position during the entire instructions phase of the test. If they step out, stop your instructions and require them to regain the starting position. Remind them that their ability to follow simple instructions is paramount to establish their level of sobriety. Note each time they sway, hop, raise their arms or step out of the starting position for your report. These are not “clues” to be scored, but are observations to indicate their impaired state. More on that later.

If the tested subject is wearing awkward shoes (high heels, cowboy boots, etc.) you should ask them if they want to take the test in their shoes or take their shoes off. Let them decide and get a verbal commitment either way. This shows your impartiality in conducting the test, and a genuine allowance on behalf of the subject. Trust me, the impaired driver will give you plenty of clues of impairment without resorting to trickery.

BASIC INSTRUCTIONS

Like the other tests, I always start by giving the subject a basic description of

what I expect them to do. This looks great in court because the instructions are simple, and it gives me time to think about what I am saying and doing. If you ever get tongue- tied during instructions you can always pause and ask the subject “DO YOU UNDERSTAND?” During this time I will position myself about 10 feet away from the subject so that they can clearly observe my demonstration, and I can clearly observe any clues that the subject exhibits.

The basic instructions should hit the main points of the test. I inform the subject that when I tell them to begin they will balance on one foot, while raising the other foot approximately six inches off the ground. They will then count out loud in a manner that I will describe, and continue to count until I tell them to stop. That’s it! Simple and too the point.

I then ask the subject, “DO YOU UNDERSTAND?” After getting a verbalacknowledgment that they understand I move on to the next part of the instructions. Remember, if the subject says they don’t understand, ask them specifically what it is they don’t understand. Do not repeat all of the instructions again, simply repeat and clarify the part of the instructions that they do not understand. Always end with asking them “DO YOU UNDERSTAND?”

DEMONSTRATION

During the demonstration part of the instructions I will assume the same starting position that I have placed them into, about 10 feet in front of them. I will then explain that they will stand on the foot of their choosing and raise the other foot approximately six inches off the ground. At that time I will raise one of my feet about six inches off the ground. You need to practice this so that you know how to balance with all your duty gear on, and give an appropriate six inch example – this is important. I will also explain that they need to keep both legs straight during the test. Bending either or both legs during the test makes balancing much easier so you must watch for this and correct it if it begins to happen while you are scoring the subject.

Once I have my foot six inches off the ground I will explain and demonstrate that they need to point the toes of their raised foot so that the foot is parallel to the ground. This is a part of the divided attention test so do not let them cheat on this.

After placing my foot in the proper position I will advise the subject that they will begin counting in this manner, “one thousand one, one thousand two, one thousand three, and so on until I tell you to stop”. I will remind them that during the test they need to keep their arms down to their sides, and keep both legs straight. I will then ask them, “DO YOU UNDERSTAND?” After getting a verbal acknowledgment I will lower my raised foot and finish out the instructions.

Here’s a cheat for you to help you in your demonstration. If you find yourself off balance then slightly bend the leg you are standing on. Don’t make it obvious, but a slight bend will give you greater balance. Once you’ve done this, move your raised foot slightly towards the leg you are standing on, maybe even as far as directly in line with the leg your standing on. This will put your body more in line with itself and therefore more balanced. During the instructions you should be watching the subject – DO NOT LOOK DOWN. Looking up (on the horizon) makes it a lot easier to balance then looking down at your raised foot.

FINAL INSTRUCTIONS

Now you are ready to give the person the final set of instructions. Like the WAT

test, do not try to mix the final instructions into the demonstration. More officers fail doing this and lose confidence in themselves and the tests because they try to cram too much information in while trying to maintain their balance. Unless you have high-wire balance naturally you are bound to lose your balance or rush the instructions (forgetting some along the way). Either way it makes you look foolish and unprepared. By breaking the test instructions into four distinct parts you can avoid the overwhelming pressure to throw everything at them at one time. Dividing the instructions into these four parts is also incredibly powerful in the courtroom because it makes the test easy to understand for judge and jury alike.

The final set of instructions uses the “head-to-toe” method to remember what you are going to instruct.

HEAD – Instruct them to look down at their raised foot during the test.

MOUTH – Remind them to count out loud “just like I did”, until you tell them to stop.

ARMS – Their arms are to remain at their sides during the entire test.

FEET – Keep the raised foot pointed and six inches off the ground during the entire test.

From experience I have added an instruction about what to do if they put their foot down during the test. Too often when a subject drops their foot the first time, they simply stop performing the test – like the first time they step off the line in the WAT test. To remedy that problem I give this final instruction – “if you happen to put your foot down during the test, regain your balance, raise your foot back into position, and continue counting where you left off.”

Before starting the test I will ask them one more time “DO YOU UNDERSTAND?” At a minimum I have asked them if they understand four different times, and I have not continued with instructions before getting four separate acknowledgments that they do in fact understand – great stuff in court. Be careful here. Do not accept head nodding or grunting as an acknowledgment. Request them to say “yes” or “I understand” or some other form of clear acknowledgment. Then the are locked in! At this point you are ready to have the subject begin the test.

The NHTSA Manual recognizes four (4) validated clues of impairment on the

OLS test. If you see two (2) or more clues then there is a high probability that the subject is impaired. All of the clues are found during the performance stage of the test, but if the subject exhibits lack of balance or the inability to follow instructions during the instructional phase those observations should be documented.

THE FOUR CLUES OF (OLS)

1. Sways while balancing – Being fair the sway should be more than one inch off center.
2. Raises arms for balance – more than six inches from their sides.
3. Hops – moving the foot they are balancing on is a “hop”.
4. Puts foot down – try to note on what count they did this, and how many times.

Swaying – you should stand in a position that allows you to observe the subject and some stationary object in the background. This could be a utility pole, a tree, a billboard, or even your patrol car. This gives you the basis of how you measured the sway the subject exhibited. I’ve been asked this in court so be prepared to have a solid answer. Note the type of sway as well – front to back, side to side, or circular (orbital).

Raises arms for balance – requires you to observe the subject raise one or both arms more than six (6) inches from their sides. Document on what count they raised their arms and how many times they raised their arms. If they raise their arms 30 times remember that it is only scored as one clue, performed 30 times.

Hops – is probably one of the most incorrectly scored clues simply because too many officers are looking for the “bunny hop”. The subject does not have to jump off the ground like a pogo stick to be scored for hopping. What is most often observed is the

subject begins shifting on the leg they are balancing on to try to counter the movement of their raised leg or body. Even if the foot doesn’t completely leave the ground, their body movement is causing their foot to temporarily lose traction and position with the ground. Think about what that looks like from a ground-level perspective. In order for the subject to move out of position their foot is coming up enough to allow movement, when their entire body weight is on that foot – that’s hopping, score it!

Puts foot down – No brainer here. Note on what count and how many times the subject puts their foot down. One thing to be careful of is to make sure the subject returns their foot to (6) inches with a pointed toe after they’ve put it down once. And make sure they look at their foot – the subjects will quickly start doing cheats once they realize their balance is poor.

By the completion of the three validated sobriety tests you should be more than comfortable with the arrest/no-arrest decision. If done properly these tests have been proven to be incredibly accurate in identifying driver’s that are at the .08% B.A.C. level or above. The sharper you hone your skills in administering these tests, the greater the success rate you will have in snatching the .08% and .09% impaired drivers off the road. Anyone can locate the .15% driver, but a true professional is required to remove the threats posed by drivers with lower B.A.C. levels.

One final reminder – from the first observation of the Vehicle In Motion you should start preparing yourself for the lawyer-savvy subject who will not talk to you or perform your tests. Tune in all your senses to document the many minor details that intoxicated drivers will give you during Vehicle In Motion and the Personal Contact phases of D.U.I. investigations. That way Mr. Refuse-all doesn’t slip by, and you’re detailed reporting of observed actions will be sufficient to gain the conviction in court.

Happy Hunting!

[Ed. note - This is part IV of a DUI Training series. This training article is on the Walk and Turn test.  Prior articles covered Horizontal Gaze Nystagmus, Vehicle in Motion and Personal Contact.]

In this fourth article on the standardized field sobriety tests (SFST), I will review the Walk-and-Turn (WAT) test which is the second test in the NHTSA approved 3-test battery. The final SFST is the OLS – One Leg Stand test, and I’ll have a future article on that test soon.

The WAT is another important test in determining sobriety or lack thereof. As with the other NHTSA tests this test has a strict way of instructing and performing an example of the WAT. As with any of the tests I recommend to officers I instruct to take their time, focus, and learn to move right through moments of memory loss like it was a planned event. There is probably nothing more intimidating and frustrating to an officer than to appear flustered to a suspect. It WILL happen – let me teach you to overcome that fear and nail these tests.

The first requirement of the WAT is to position the subject in the proper STARTING POSITION.

This position will be maintained by the subject until the instructions are ended and they are ready to begin the actual performance test. First, I have the person stand with their feet together – heels and toes touching, and their arms down to their side (same as all the other tests). I then stand approximately 10 feet in front of the subject and ask them if they can imagine a line from the tip of their left foot to my foot. Almost without fail they will say yes. I will then instruct them to place their right foot on that line, directly in front of their left foot and touching heel to toe. I then instruct them to remain in that position until I tell them to begin and ask them “DO YOU UNDERSTAND?” Get a verbal acknowledgement! If at any time the subject says they do not understand, then find out exactly what it is they don’t understand and then only repeat instructions for that part – do not start repeating all of the instructions.

This simple instruction is critical for three reasons. If you just tell a person to walk a line (and there is no line) then a defense attorney can always create doubt by saying their client (who was scared and nervous) did not know what line you meant. By the subject acknowledging their own line and then placing their foot on that line they have sealed their fate – it was THEIR line. When the defense attorney gets smart and asks “officer how big was this line in the dark?” you can respond “you’ll have to ask your client, because it was the line that they imagined.” Defense destroyed.

The second important reason for this instruction is that NHTSA requires the subject to maintain that position until all instructions are completed and they actually begin walking. Don’t let them get out of that position during your instructions, and if they do then score a clue.

The third reason is that the test requires the person to start walking by taking a step with their left foot. This is so the turn will be properly performed on step #9, so make sure you get them in the correct starting position – it matters!

The first two recognized clues of impairment are found during the Instructions Phase of the WAT:

• STARTS WALKING TOO SOON (BEFORE INSTRUCTIONS ARE COMPLETE)
• FAILS TO MAINTAIN HEEL-TO-TOE STANCE.

Each clue is ONE clue, but that one clue may be observed multiple times. This understanding is important because NHTSA says that if you observe 2 or more clues on the WAT than the subject is likely impaired. If they start too soon five times that is NOT five clues. That is one clue observed five times, and should be documented that way.

Something else that is critically important at this point of the test. Raising the arms for balance during the instructions, or bending the legs, or swaying, or hopping, etc. ARE NOT clues that can be scored! Note them for the report, but don’t score!

Be reasonable! If the person steps out of position numerous times gauge their balance and if needed – STOP THE TEST! If they’re minor steps out then you can probably get them back in position and continue. If they’re about to fall down – STOP THE TEST! Make sure you document that you stopped the test for their safety.

If a person can’t stand in the starting position because their balance is effected so badly … you’ve made your case for impairment! It doesn’t matter that you didn’t get the test completed. Videos from patrol cars will help make your decision conclusively valid. Having someone fall down may seem like a slam dunk for your case, but a judge or jury may see it as a failure of duty to protect this suspect from foreseeable injury!

BASIC TEST INSTRUCTIONS.

This is simply a way for the officer to gather their thoughts and give the simplest explanation of what they are going to expect the subject to do.

I will be in the same starting position with my left side facing the subject in a perpendicular position about 10 feet away for good reactionary distance. You can give these instructions outside of the starting position, but I do it (on video) to dispel defense claims that the surface made it impossible to stand in position during the instructions.

The instructions should be as simple as this – “what I’m basically going to have you do is walk 9 heel-to-toe steps down that line, turn using a small series of steps like I’ll show you, and walk 9 heel-to-toe steps back down that line. “DO YOU UNDERSTAND?” Get a verbal acknowledgement.

WALKING (or DEMONSTRATION) INSTRUCTIONS.

Regardless of if you are a left-handed officer you need to start with your left side facing the subject. When you provide an example, including the turn, you will expose your back to the subject unless you start with your left side towards them. Turning to the left will actually turn you towards the subject. You have already given a basic description of what the subject is going to do, so at this point simply focus on actually showing them what they are going to do. Wait to give the final instructions until after the walking demonstration.

I tell the subject “this is what the test will look like.” I then start walking heel-to- toe and counting my steps “one, two three.” Now the NHTSA manual actually instructs the officer to stop at step “three” and explain that the you have only taken three steps but the subject will continue until taking nine steps. They will then perform a turn in the manner that you will verbalize and demonstrate.

“Leave your left foot down, while taking a small series of steps to turn around, just like I’m doing.” For my example turn I usually take 3 partial steps in a semi-circular motion with my right foot.

Now I must admit a slight variance that I do compared to the NHTSA instructions. We are supposed to be instructing and giving an example just as we expect the subject to do. By stopping during our walking instructions we are providing an example of a clue that we will score against the subject if they do the same. The NHTSA videos even show the stop during instructions – ugh! So to avoid this problem I have practiced my instructions to coincide with a continual movement of 3 steps, a slow series of steps to turn, and then 3 steps back.

To accomplish this I say as I’m making my third step “on down to nine steps”. At the same time I’m beginning my semi-circle steps with my right foot. Then in the same movement I point to my left foot and explain “leave that foot down and make a series of small steps to turn around”. By that time I’m usually done with my turn and I immediately go into my return walk – just like I expect them to do. I count those steps out loud and finish with “on down to nine steps. DO YOU UNDERSTAND?”

It is a slight variance from NHTSA but I feel it is more then reasonable and actually eliminates a defense claim if they stop and I score that clue. Your call.

THE FINAL INSTRUCTIONS

Don’t try to give detailed instructions while you are performing your example! It is the surest way for you to screw up, get flustered, and then forget critical components of the instructions. Screwing up and embarrassing yourself is also likely to cause you to avoid investigating DUI in the future, and that’s bad for everyone on the road.

The last instructions can best be remembered by the Head-to-Toe method:

Head – “I want you to look down and watch your steps” Mouth – “I want you to count your steps out loud like I did” Arms – “I want you to keep your arms down to your side at all times” Legs – “Once you’ve started the test don’t stop until the test is finished”.

These instructions are necessary because most are going to be clues that are scored if the subject doesn’t perform them. I will admit that through experience I have realized that many subjects that step off the line once will simply stop the test at that point. I add on the Legs instruction – “if you step off the line, regain your balance, and keep walking where you left off.” Again, this is NOT a part of the NHTSA instructions, but I have never been challenged on that, because an instruction that goes above and beyond to explain the test is not one that the defense will want to attack. If you give incorrect or incomplete instructions – that’s a different story.

CLUES THAT ARE SCORED – TOTAL = 8, IMPAIRMENT = 2 OR MORE

Instructions Phase Starts before instructions are completed Fails to maintain heel-to-toe stance during instructions

Walking (Performance) Phase Steps off the line – (I’m a stickler – if part of their foot is on and part off – its off. Misses heel to toe – more than 1/2” (if you see a distinguishable gap you’re there) Raises arms for balance – more than 6” from sides Stops while walking – stop by definition is any cessation of movement Improper turn – quick pivot, turn to the right, walking backwards, etc. Incorrect number of steps – 9 down, and 9 back – anything else is wrong

Not looking at feet, or not counting out loud are NOT clues to be scored, but their failure to do so should be noted because you instructed them to do so. I will also re-instruct them during the test if they are not doing them. These are divided attention tests (divided attention is critical to safe driving). If they cheat, even on those “small” things, they are making the test much easier for themselves.

You will notice that during the test I have instructed you to ask the subject a minimum of four (4) times “DO YOU UNDERSTAND?”. A positive response four times is pretty much an impossible hill to overcome with a “didn’t understand” defense.

And here’s a great hint – Anytime you feel like you’re getting lost in the instructions, pause to think and ask “DO YOU UNDERSTAND?”. If you ask it four or fourteen times it’s all good, and hopefully will give you time to regain your composure. And it’s OK to have brief pauses in the instructions for the same reason. Trust me, it’s more fluid than you might think and it looks totally natural and planned.

Remember that there are 8 separate clues on this test. Observing multiple violations of a clue still only gets scored once for that clue. Document the number of times each clue is violated to build your case’s strength.
Practice makes perfect on these tests. There is a lot to remember and perform, but if you break it down in the four sections I’ve laid out you should be able to remember everything and be confident.

Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.

[Ed. note - This is part III of a DUI Training series. This training article is on horizontal gaze nystagmus. Prior articles covered Vehicle in Motion and Personal Contact.]

The next step in the investigation of impaired drivers is to have them exit the vehicle for the Standardized Field Sobriety Tests (SFST).

The Frye standard, Frye test, or general acceptance test is a test to determine the admissibility of scientific evidence. It provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community.

To overcome the scientific requirements of United States v. Frye, the National Highway Transportation and Safety Administration (NHTSA) funded scientific research on sobriety tests starting back in the 1970’s. The results were the three “standardized and validated” field sobriety tests that most of us in police work have become the most familiar with. “Validated” means that a scientific study confirmed that the tests do in fact work to identify impaired drivers.

The (3) sobriety tests that rose to the top during the NHTSA studies are:

1. Horizontal Gaze Nystagmus (HGN)
2. Walk-and-Turn
3. One-Leg-Stand

Please note:  The intent of this article is simply to refresh previously trained officer’s on techniques and methods used for the SFST, and to encourage those who have not been properly trained to obtain such required training.  This article does not replace your state’s required training, nor certify you in anything.

When instructing officers on the SFST I developed a pattern that separated the test instructions into four easy to remember parts:

Starting position Basic information on test Demonstration of test Final instructions on body requirements during test (the head to toe instructions).

After each section I would ask the driver “Do you understand”. I would only continue when I obtained a verbal affirmative, which was conveniently recorded on audio and video equipment in the car. This played out extremely well because on each test the subject would have stated their understanding a minimum of four times! And if the subject says “no” to understanding I only repeat those parts that they say they did not understand. This break down also made it easy for me to ensure that all of the instructions from the NHTSA manual were provided.

This article will focus on the administration of the Horizontal Gaze Nystagmus (HGN) test. This is probably the most difficult test to administer because the emphasis is on the officer, not the test subject, to get the test correct. The officer must follow the NHTSA standards of spacing and timing in order to get this test admitted in court. The positive side is that most courts around the country now accept HGN results as a very strong indicator of impairment. The Appellate Courts in my State have ruled, “…four clues on HGN is indicative of impairment”. That is a very strong statement from the courts and makes the administration of this test that much more important to our case.

HGN – the involuntary jerking of the eyes as the eyes track horizontally. NOTE: All people have nystagmus (attorney question), but that nystagmus is not visible to the naked eye and requires doctor’s instruments to see. Alcohol and drugs enhance (not cause) nystagmus allowing it to be visible. Think of it this way – the eye is a ball sitting in a fluid socket. Like any ball it naturally wants to rotate and move around. The eye muscles keep the eye on track, but the eye is always making small adjustments to accommodate for lighting and distance. Alcohol and other drugs that enhance nystagmus weaken the eye muscles from doing what they need to do to control the eye, bringing nystagmus to the visible point. And don’t you agree that an eye bouncing around would prevent someone from driving safely?

Starting Position – Standing with feet together, heels and toes, with arms down to side.

Basic Information – Explain that you’re going to move your finger left to right and they are expected to follow your finger with their eyes only.

Demonstration – Actually position you finger and give an example pass left and right so they clearly understand your movements and intentions.

Final Instructions – Watch your finger with their eyes only, do not move their head. Keep their arms down to their side, and do not move out of the starting position until told to do so. (Remember to ask “do you understand” after each step)

To be “standardized” the officer should start each examination with his finger in the center of the subject’s face. Then move to the right (subject’s left) to start each test. This is the way NHTSA teaches and should be followed by officers.

OFFICER SAFETY ISSUE – I am going to go on record here to advocate that the officer use his/her finger as the test stimulus, and NOT some foreign object like a pen light. I’ve never heard of an officer having his finger pulled off and used as a weapon against him, but I have heard of pens or other objects being used in that manner. In one demonstration at an SFST conference or training seminar a petite female officer was able to grab a metal pen from another officer “administering” HGN and stab that pen about 3-4 inches into a mannequin chest – through a ballistic vest! No thank you – my finger is just fine for me.

ADMINISTERING HGN

Equal Tracking and Equal Pupil Size (4 seconds required) This step is a 2-second pass. The 2-seconds is from center of the subject’s face

to their left maximum deviation, back all the way to their right maximum deviation, and back to center. This is a fairly quick movement, but not too fast that a sober person could not follow your finger. This should be repeated twice to ensure proper observations.

***This step is critical because lack of either equal tracking or equal pupil size could indicate a serious brain injury/trauma that needs immediate medical attention. Ask the subject about any such events. I processed a guy who had been hit with a baseball bat 14 years earlier when he was a Catcher. Pupils were way off in size. But he’d been functioning fine since. Note this observation and explanation in the report and move on. Don’t get a good reason from the subject? Call for paramedics and have them transported to a hospital where you can draw blood and have them medically examined. Protect yourself and the subject!

Lack of Smooth Pursuit (16 seconds required – first scoring clues observed) The next step is to determine if the subject’s eyes move “smoothly” while

following your finger. This is a slower movement that takes “approximately” 2-seconds from center to to left maximum deviation, then about 4-seconds to get to right maximum deviation (2 seconds to center, 2 seconds to max. deviation), and then another 2- seconds back to center. This should be repeated at least twice for proper observation.

If the eyes are jerky when following then you score lack of smooth pursuit. Each eye gets its own score. Maximum clues to be scored is 2 – 1 for each eye.

Distinct (and sustained) Nystagmus at Maximum Deviation (minimum 24 seconds) Nystagmus at maximum deviation is observing the “bouncing” or jerking of the

eyes when the Iris (colored portion of the eye) is taken to the far corner of the eye with none of the white part of the eye showing in that corner.

VERY IMPORTANT – This is the only part of the HGN test that requires a minimum of 4 seconds of observation at maximum deviation. All of the other NHTSA time instructions are “approximately”, but maximum deviation is clear – “minimum”. The HGN test also requires the officer to obtain a minimum of 8-hours of instruction and training in order to be able to testify to the results of the HGN test in court.

So you take the subject’s eye to maximum deviation in a movement that takes about 1 second from center, wait a minimum of 4 seconds, move across to the subject’s right side maximum deviation in about a 2-second movement (just slow enough for them to follow your finger), hold for a minimum of 4 seconds, and then about 1 second to center. Repeat the same process and you can be done. You do not need to stop at center to start the next pass, but if you’re a little weak on your tests it’s a good place to get your timing in balance.

Here’s a hint – during this test you will count fast to yourself (trust me), so when counting by “one thousand one”, etc., count to about “1006” to make sure you get the full 4-seconds. Each eye is scored independently. Maximum clues to be scored is 2 – 1 clue per eye.

There’s good, scientific reasons we hold the eye a minimum of 4-seconds. As a person’s Blood Alcohol Concentration (BAC) goes up they will start to show signs of nystagmus at maximum deviation. However, a person at say a .06% or .07% may only show that nystagmus for 2-3 seconds and then it will stop completely. This is why failing to hold the subject’s eye at maximum deviation for a minimum of 4-seconds will definitely cause the test to be tossed in court, and could cause you embarrassment when you put that subject on the BAC instrument at the station. Remember, we arrest for impairment – not a BAC score.

Many officers see this phenomenon happen and then begin to doubt the accuracy of the tests. That’s why we do at least two passes to ensure what we are seeing. And on that note – the NHTSA manual says to do a “minimum” of two passes, but doesn’t say you can’t do more passes if something doesn’t feel right and you want to check things more closely.

Dr. Karl Citek, who has done extensive work with NHTSA on the eye examinations, advises that you can hold the eye at maximum deviation for up to 15 seconds for observation before worrying about causing a fatigue nystagmus – where the eye muscles just get too tired to hold the eye in that position and start to show nystagmus for that reason alone.

Remember – we are impartial investigators of the truth. Sometimes we will test people who are under the statutory legal alcohol limit. When you see this you’ve actually done a great job, and should start to realize this person is borderline impaired. They may still be too impaired to drive based upon your other observations because not all people handle alcohol or drugs the same. A person who takes their first “two drinks” ever might only get to a .05% but have difficulty standing, where a professional drinker could be a .150% and almost nail the other two tests in the SFST.

That’s why HGN is so very important, because “the eyes are the windows to the soul” and they don’t lie. And regardless, of drinking ability, age, size or anything, HGN will show up and has been shown to be over 90% effective at finding the .08% “drunk” and above.

Onset of Nystagmus Prior to 45 Degrees (20 seconds required) This is probably the most tricky of the HGN tests and requires the most practice.

This is because it requires the officer to move 12-15 inches from center of subject to maximum deviation, and time the movement to occur in “approximately” 4-seconds. During that time the officer must look for the first signs of jerking (nystagmus). Once observed the officer pauses there for at least one second to ensure what they observed. If nystagmus is still there the officer can move back to center and start the process for the other eye. If the nystagmus is not there, the officer continues the process until observing nystagmus or reaching maximum deviation.

This is a very slow movement, that requires skill to observe correctly, but has a great opportunity to determine greater impairment. Think of it this way – the sooner the nystagmus is observed, the greater the eye muscles are effected by the alcohol or drugs, meaning the greatest level of impairment.

Taking the example of an officer reaching maximum deviation with no signs of nystagmus prior to, the officer should take about one second to get to center again, and then start the 4-second process on the other eye, with a one second return to center. This entire process should be repeated again for at least two passes.

Attorney Question – why do we move our finger Maximum clues to be scored is 2 – 1 per eye.

NHTSA does allow the officer to conduct more than two passes per examination. If something happens and you’re not comfortable with what you saw, simply conduct another pass. This comes about quite frequently when the subject is uncooperative with doing the test. Document any reasons for more than two passes, and don’t sit there and do 12 passes or you’ll be accused of being on a fishing expedition.

Quick Guide for HGN: Maximum Clues Possible – 6 (3 separate clues (Lack of smooth pursuit,

Nystagmus at Maximum Deviation, and Onset of Nystagmus prior to 45 degrees. (1 clue per eye or 2 possible each clue tested)

Maximum Clues for Impairment – 4

Clues should appear in order – meaning you should not observe nystagmus at maximum deviation and not see lack of smooth pursuit.

VERTICAL GAZE NYSTAGMUS (VGN)After completing the HGN tests keep the subject in the same position and ask them to follow your finger as you track in an upward motion. Keeping the 12-15″ spacing, position your finger in a horizontal manner in front of their face and slightly elevated. In a movement that takes approximately one second move your finger up about 12-15″ and hold that position for approximately 4-seconds. Repeat this process twice to ensure your findings.

If there is a noticeable bouncing of the eyes then the person is exhibiting VGN. If there is none, or it starts and then stops before the 4-seconds is complete, then that subject does not have VGN.

Although not a clue that is scored, VGN provides invaluable evidence of impairment. Through training with Dr. Citek I was taught that the presence of VGN means that the amount of alcohol or drug in the subject’s system indicates a high level of impairement for that particular subject’s circumstances. What that means is that the 100 pound woman or the guy that just had his first few drinks, who may only have a BAC of .08%, may still exhibit VGN because for them the alcohol or drug is causing greater impairment. The heavy drinker on the other hand, may have a BAC of .180% and not exhibit any VGN.

VGN is, therefore, a great indicator of that person’s impairment. VGN, like HGN can be enhanced by alcohol, other CNS Depressants, Inhalants, and Dissociative Anesthetics like PCP. It is NOT a drug detecting test, or a test for marijuana use as some have misinterpreted about the test.

FINAL NOTE: Dr. Citek conducted a NHTSA funded scientific study on the ability to perform HGN on subjects who were seated or laying down. His results are now published in the scientific journals. Officers CAN perform HGN on seated and prone subjects so long as the subject’s head is in-line with the body. So if you want to do a preliminary HGN test on a subject who is still in their car you can, so long as you get them to turn slightly so their body and head are facing in the same direction. Same goes for that crash subject on the backboard. Remember, keep the subject’s head straight in-line with their body (no tilting, or turning of the head) and you can get your HGN test in.

I hope this information clears up any confusion you may have had, educates you on some of the intricacies of HGN, and encourages you to use this skill to remove impaired drivers. If you’ve already been trained – happy hunting! If not, you still must go through a NHTSA approved SFST course to properly administer the tests and testify in court. Don’t be the officer that sets bad case law precedent!

Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.

PHASE II – PERSONAL CONTACT

Here is where we begin to see officers dropping the ball. And this part of the investigation may be the most critical in the entire process. We get so used to “routine” traffic stops, that we fail to observe some of the best evidence of impairment that we’re going to get – during the initial contact with the driver.

Remember, that at this point the drunk (or other criminal) is in panic mode, and is at the greatest potential for producing evidence due to nerves. They still feel somewhat comfortable in their car however, and can give you all you need for conviction. Once you ask them out, you are less likely to get the spontaneous observations than while they’re in the car.

This phase begins the moment you exit the patrol car, not when you’re talking to the driver. As you approach what do you see, smell, hear. You’d be surprised how often someone will ditch their beer can in the back seat, or you’ll hear them blurt out “I’m drunk.”  Most officers are like “oh yeah” and let their guard down a little, which means their observations and notes for the report drop off too. These are big pieces to a big puzzle that has to be played out in your report.

Detailed observations of the driver pay huge evidentiary dividends.

Strong odor of intoxicants – CLUE! A driver who’s chewing a whole pack of gum to cover the alcohol odor – CLUE! The driver with vomit on his shirt – CLUE! The slurring of words, bloodshot/glassy eyes – CLUE! The admission of “I’m wasted” … CLUE! The open case of PBR (hey its got a blue ribbon) in the back seat – CLUE! The 5 minutes of trying to get the driver’s license out of wallet – CLUE! The enormous piss stain on the front of the pants … yeah, CLUE! The instant chain smoker … oh yeah, CLUE!

This is a good time to discuss the definition of some of the commonly quoted observations of the driver in DUI reports. The first three might be up for some debate, as you may use a slightly different definition. As long as you’re consistent, you should be fine. Getting the final two wrong goes against medical terminology, and could sink your credibility in court.

Bloodshot eyes – This is the noticeable reddening of the white portion of the eyeball. Alcohol dilates (makes big) the blood veins in the eye, which causes them to become noticeable to the naked eye – they’re there but usually not noticeable.

Glassy eyes – To me this is the old style glass that wasn’t very clear to look through. It almost looks like the driver has as a film of plastic or something over their eyes. This is the alcohol drying out and mixing with the natural eye fluids.

Watery eyes – I try to stay simple – watery is watery. If I see fluid collecting in the eyes, or some tear drops inadvertently roll out than I call it watery. Natural tears don’t count for this observation (everybody cries, whereas watery eyes could be caused by the body’s attempt to replenish the eyes with the natural lubrication).

Dilated – This is talking about the pupil, or the dark circle in the middle of the eye. Dilated means to make bigger. Alcohol DOES NOT cause pupil dilation. It doesn’t mean that you won’t see this on a DUI stop, but if you do then there is something else on board that is causing the pupil to dilate.

Here is a guide to know if the pupil is outside of it’s normal range of sizes – if it is larger than a pencil eraser, or smaller than a standard end of a ball point pen, than the pupil is outside of “normal” size ranges. What I mean by end of a ball point pen is if the pen is retracted, look at that end (including edges) and that is the minimum an pupil should be. Some examples of drugs that cause dilation of the pupils are – Cannabis (marijuana), CNS Stimulants, and Hallucinogens. More on all of this in a follow-up article on drugged drivers.

Constricted - This is where the pupil is much smaller than normal. There is only one category of drugs that causes pupil constriction – NARCOTIC ANALGESICS. These are the pain killers – heroin, morphine, opium, and all the synthetic derivatives such as, Oxycontin (Oxycodone by itself), Percocet (Oxycodone and Acetamenophin), Hydrocodone, etc.

You will definitely know if you are seeing constricted pupils as they are usually so small you have to look for the pupil. Again, more to follow in an additional article on drugged driving.

To understand the pupil size a little better think of the fight or flight syndrome. When you take drugs that stimulate that response in the body, the body naturally dilates the pupil to allow more light to come in (more information) so the brain can decide what to do. When narcotics are taken, the body is in “chill” mode, and could care less about the armed intruder, or that attacking lion. Pupils are therefore very small. These are just a few of the many things you could observe and help your case when the driver refuses any tests afterwards. With those types of observations you can succeed in your case without the SFST.

Another thing to consider in your reporting: pure alcohol, ETOH, does NOT have an odor. Saying that you could smell the odor of “alcohol” on their breath may spark a challenge from the defense. I either use “alcoholic beverages”, “intoxicants”, or “intoxicating beverages”.

If you do report or say this, the explanation to this attack is simple. Pure alcohol is developed in laboratory settings. The alcohol in liquor and beer is derived from processes involving chemical reactions with natural substances that DO have an odor.

Use this example – grain alcohol is the highest proof alcohol substance that is offered commercially for consumption that I’m aware of. Ever smelled that stuff? It does have an odor – something akin to turpentine! Brings back horrible memories of foolish college days where grain alcohol was mixed with some stupid purple drink and consumed in un-godly amounts. And just the thought of that substance, and yes, the smell of grain alcohol, makes my stomach churn. This should be enough to silence the defense.

It is during this time that an officers can administer the PRE-EXIT tests. The recommended pre-exit tests are as follows:

The Alphabet Test - requiring the driver to recite the alphabet from pre-determined starting and stopping points. Don’t have them do the whole thing or you’ll get the kid’s song, which actually makes it easier for them. I usually went from F to R. These letters are not natural stopping points in the song, so it makes it tougher. And have them go forward not backwards – unless you want to look like an idiot in court when you can’t do a demonstration as a sober, officer. Whatever letters you choose, use those every time you administer the test – you just made your test “standardized”.

The Finger Count - requires the driver to use their thumb to touch the other fingers while counting them. The process has the driver touch the pointer or pinky finger (I’ve seen both ways – I find the pinky method better) and begin counting the fingers 1,2,3,4. After reaching the last finger, and a count of 4, they must count down from that same finger. Touching that last finger they must count the fingers 4,3,2,1. This process is repeated 3 times. They might get it the first or second round, but by the third time you should be getting some good clues. And once they mess up it’s usually a train wreck.

The Countdown Test – requires the driver to count backwards from pre-set numbers. The key here is to start on odd or even and end on the opposite. For example, start on 68 and count backwards to 53. The recommended distance is 15 numbers. And yes, the NHTSA manual has a numbers example, but if every cop in every state uses the same numbers, the drunks just have to practice those numbers. I think you’ll survive any challenge by “standardizing” your test by using your own set of numbers every time.

Pre-Exit Eye Examination – allows the officer to acquire evidence of Horizontal Gaze Nystagmus (HGN) while the driver is still in the vehicle. Have the driver turn their body towards the window so that their head remains in-line with their body. Then perform the test and gather evidence. HGN is one of the strongest evidences of impairment, because there are no strong defenses to something going on in the suspect’s own body.

In my state, the Appellate Courts have ruled that, “four clues on the HGN test is indicative of impairment”. What that is saying is that if ALL you get is the necessary four clues on HGN you have practically sealed your DUI case! So I always attempt a pre- exit HGN test as the driver sits in the car. Even most of the one’s that are preparing to refuse outside of the car, seem to be at ease in their car and will submit, thinking that I’m not confident enough to have them exit and they’re about to get let go – Gotcha!

The original NHTSA instructions on HGN stated the subject should be “standing” during this critical test. Defense attorneys picked up on this very quickly, so tests done while the driver was sitting in the car, laid out on a backboard, or even in a wheelchair were often not allowed in court. Ridiculous.

However, in the last few years Dr. Karl Citek, a practicing Opthalmologist and College Professor of Optometry has co-sponsored a NHTSA funded test on the validity of HGN in different positions. For an impressive biography on Dr. Citek check out:

http://www.paamtrafficsafety.com/www/experts/citek.htm

Dr. Citek’s report has found that as long as the head is in-line with the body than HGN observed during the test is validated. In-line means the head is not tilted side-to- side (like a dog hearing a high-pitched noise), or turned to the right or left. This is HUGE for DWI enforcement.

What this means is that the impaired driver strapped to the backboard can absolutely have validated HGN tests performed on them. Seated and/or in a wheelchair? No problem. And, in the case of a car stop, as long as the officer has the driver partially turn their body towards the window, the officer has kept the head in-line with the body and can perform an initial HGN test right there in the car.

Finally how do they exit the car? Do they need to support themselves? Forget to unbuckle the seatbelt? Fall down? Pass gas? Yes, that’s a CLUE! I mean come on, whose going to fart in front of a cop unless you’re wasted!? Especially the ladies. Do they use the car for balance as they walk to the rear? Piss themselves? Again? You get the idea.

So a recap of your observation points during PERSONAL CONTACT:

1. Exiting the patrol car and approaching the suspect vehicle.
2. Actually attempting a form of communication with the driver – pre-exit tests.
3. How do they exit the vehicle.

And the critical points to remember are DETAILS, DETAILS, DETAILS! If you go into the stop with the mindset that this 4-time loser is going to refuse everything you ask, maybe not even talk to you, then you’ll still feel very comfortable with the decision to arrest and make a good case.

Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.

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Recently I was talking to some officers about the finer skills of detecting impaired drivers, and I got a lot of glassy eyed looks in return. The one area that turns more cops away from DWI enforcement (other than the time and paperwork required) is the Standardized Field Sobriety Tests (SFST). Most cops avoid getting into a situation that may make them look flustered, more than a preacher avoiding a porno shop. Hopefully I can dispel some of those distastes in this series of articles and get more cops stopping the human torpedoes on the roadways.

Just a little bio information on me so you know where I’m coming from.

I’m an SFST instructor, have been a DRE (Drug Recognition Expert) and DRE instructor (both for 10 years), spent 2.5 years specifically as a DWI enforcement officer, and worked 2 years in undercover investigations for a HIDTA drug task force.

I can absolutely attest that if you want to win the DWI conviction, AND stay out of court as much as possible, than you had better become masters of documenting everything you can for the DWI report. Defense attorney usually prey on the weak, and avoid the humiliation of the strong report. I have been grilled by some very good attorneys, but once they realized I knew what I was talking about and could articulate facts and observations to a logical conclusion (you’re client was a disaster), my name made the circuit and I rarely had to come and testify in court again on DWI matters. And for a DWI enforcement guy who works the dog hours, not being called into early morning or afternoon court was a nice reprieve.

When I taught officers the SFST course I emphasized something that most had never even considered – THE SUSPECT WILL REFUSE ANY OF YOUR TESTS AND MAY NOT EVEN TALK TO YOU. We aren’t too surprised when they refuse the BAC instrument test, but many an officer has had the deer-in-the-headlight look when the suspect refuses ALL of the SFST tests you want to administer. Suddenly the confidence in arrest goes by the wayside.

Most officers expect to make their impairment case from the SFST (which they administer poorly and may lose in court). They were making good DWI arrests in the 1920’s when we didn’t have the SFST or videos, so we can surely do it now. In my state to be convicted of DWI the driver simply has to “operate a motor vehicle, anywhere in the state, in an intoxicated or drugged condition”. Doesn’t say anything about failing the SFST or having above a .08% BAC (although statutorily the .08% and above means that you are intoxicated). So showing that a person couldn’t control their vehicle, and had signs of intoxication, could be all you need to secure conviction.

Get ready for the refusal. I’m not advocating tossing the SFST at all. On the contrary, the SFST are remarkable tools that can garner enormous credibility to your arrest decision when administered properly. Take full advantage of every stage of the enforcement, but be ready when the offender throws a wrench in your plans.

PHASE I – VEHICLE IN MOTION

In this part of DWI enforcement officers are the most comfortable. This is basically observing a vehicle conducting traffic violations and making the stop. By the time an officer has a few years on the road, this activity is like bread and butter. Moving violations are the best for DWI stops, but any violation that gives you a legal contact is acceptable. The weakness of most officers is the lack of detail about those violations in their report.

For example, “…the vehicle crossed the center line of the highway.”

Better, “the vehicle was weaving back and forth and then crossed approximately a half car width over the center line, before an abrupt swerve back to its lane.”

Painting the second picture makes it clear to judge, prosecutor, and the 12 unlucky citizens that made jury duty that this idiot had no business on the road. And when those violations are more subtle, detail is the difference between success and failure in the court.

This is a good time to learn and become consistent with definitions used by officers to describe vehicular motion. These are the definitions that I used to describe the most commonly observed actions of impaired drivers, and I used them consistently (standardized). To some officers these definitions may not fit, but as long as you use these terms consistently with your definition you will be fine.

Weaving – To me this is like sewing with thread and needle. There is a nice steady movement from one side of the lane/road to the other. Nothing too drastic, and the movement is in both directions.

Drifting – I like to think of a snow drift or a sand drift (depending on your part of the country). The wind blows the drift in a fairly consistent pattern and direction. So the vehicle is going out of the lane/road in one direction, but the motion is steady and not abrupt or drastic.

Swerving – This is the sudden and jerky movement of the vehicle in the driver’s attempt to maintain the lane of travel.

Don’t stop observing and documenting after observing the initial violations. Note what the idiot did when you turned the lights on, when they finally stopped, where they finally stopped, etc. The guy that stops in the lane of traffic, or drives over the curb could be a CLUE. The guy that keeps driving at low speeds like you’re not there could be a CLUE! Lots of good stuff to document to add to your case.

So here’s what you need to document during VEHICLE IN MOTION:

1. Detailed descriptions of violations or other impaired actions.
2. Describe the roadway, lighting conditions, and weather conditions. There is nothing more distasteful to a judge or jury then a description of an impaired driver driving carelessly into a downtown area full of pedestrians, while its raining.
3. How and where did the suspect stop their vehicle.

Again, the critical component of this phase of DWI detection is not observing the violations or actions, but documenting them thoroughly in your report. The old saying applies here – If it ain’t in the report, it didn’t happen!

Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.

Regardless on the reason for the stop, there are certain things a police officer can do to make the event as safe as possible. I’ve listed some tips that I have picked up over the years. Use what works for you, and feel free to send me your ideas as well.

passenger side approach – Daytime or nighttime, this is hands-down one of the best things you can do to stay safe during a traffic stop. If a driver is looking to ambush you, more likely than not, he’ll expect you on the driver’s side. If you come up on the passenger side, you can often get a better view of what, and who, is in the car.

Another safety benefit of the passenger-side approach is not having your butt hanging out in traffic. Whether by accident or malice, some of the passing motorists may hit you while you are trying to deal with the driver. By standing on the passenger side of the stopped motorist, you are less likely to be hit by a passing car.

get out of the driver’s seat – Sitting behind the wheel of your patrol car is just about the worst place to be if the person you have stopped decides to attack you. So, when initiating the stop, get out quickly. When running your license checks, stand near the passenger/rear of your car and run them on the radio, or if you have to use your in-car computer, access it from the passenger side of your car. Writing a ticket? Try standing at the read of your car again.

If you have to sit in the driver’s seat of your car because of the computer configuration/computer generated tickets (like my department), keep a close eye on the driver. Jump out at the first sign of trouble.

Also, think outside the box. If you are behind the wheel, and the dirtbag comes running at you with a gun, just run him over. (Sometimes the best answers are the easiest.)

turn your wheels to the left – It happens to a lot of officers: your cruiser gets rear ended by a passing motorist. If you are out of your car, and your wheels are turned to the left, your patrol car will (hopefully) roll to the left, and away from you.

wall of light – Make sure you use all of your patrol car’s lighting to create that “wall of light” that you can use for concealment on a nighttime traffic stop. I know this is basic training you got in the police academy, but it works.

An associate of mine from another department was shot, but survived, partially because he and his trainee used the wall of light. Rolling up on a “stranded motorist,” the recruit officer properly used the lighting from their patrol car. As they walked up to the car, the “motorist” ambushed them, shooting and seriously wounding my friend. Both officers fell back behind the light, and the suspect tried to find them, but couldn’t see them because of the lighting difference. The recruit did what he had to, and the citizens were saved the expense of a trial. The wall of light made a tactical difference that allowed both officers to survive, and eventually return to duty.

Stay safe!

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The latest MADD initiative is to put trained observers on the street with the intent of spotting drunk drivers, and then calling them in. In effect, MADD is creating a neighborhood watch program for the roadways.

I’m glad to see there are at least a few citizens left who are willing to invest their time and money into improving their community.