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New Changes Affect Standardized Field Sobriety Testing

With little fanfare, the National Highway Traffic Safety Administration (NHTSA) produced a new DWI Detection and Standardized Field Sobriety Testing Manual. Within the pages of the manual are subtle changes that affect the manner in which law enforcement officers conduct DWI/DUI enforcement. Modifications were made to the Horizontal Gaze Nystagmus (HGN), Nine Step Walk and Turn, and the One Leg Stand batteries. Even though this was done in 2006, many departments are still not up to speed on the changes.

The modifications involve a significant change on the HGN, subtle verbiage changes on the Walk and Turn during the instructional stage, and a scoring change for the One Leg Stand and the Walk and Turn. The benefits for knowing these changes for a law enforcer are simple—accurate test interpretations and defendable testimony in court. There is no greater sinking feeling than sitting in the witness stand, being questioned by a defense attorney, answering, and then being shown where your answer does not match that in the NHTSA manual.

The information that follows will begin to equip the law enforcer for the daily tasks associated with DWI/DUI enforcement. It is not designed to be all inclusive. Officers should seek training from a qualified SFST instructor who has also been updated according to the 2006 manual.

Horizontal Gaze Nystagmus



The Horizontal Gaze Nystagmus is probably the most challenged part of the SFST battery. Nystagmus is the involuntary jerking of the eyes and may be observed in non-inebriated individuals, although rare. When interviewing a subject believed to be under the influence of alcohol and/or other drugs, the law enforcer will be evaluating three types of Nystagmus: horizontal, vertical, and resting.

The first change comes about with a slight alteration of wording from the 2002 manual to the 2006 manual. Under resting Nystagmus, the wording was changed to show that resting Nystagmus can occur from high doses of a “dissociative anesthetic drug such as PCP.”

Beginning the HGN evaluative stage, the officer is now trained to observe the subject’s eyes while looking for pupil size being equal, resting Nystagmus, and then the ability of the eyes to track together (equal tracking.) Previously, officers were told to look for resting Nystagmus first followed by equal tracking and then pupil size. The new order appears to be more logical.

By far, the biggest change is the addition of a “distinct and sustained Nystagmus at maximum deviation.” Previous editions trained to observe a distinct Nystagmus at maximum deviation without including the sustained aspect. Now, emphasis is placed on the sustained observation.

Along with this word change, it is now more important for officers to hold the stimulus at maximum deviation (so that there is no white in the far corner of the eye being observed) for a minimum of four seconds. Remember, that is a minimum of four seconds and not a maximum of four. Holding the stimulus at maximum for 5, 6, or even 7 seconds is within the scope of the test.

Two other points of interest arise from the HGN. First is the position of the stimulus as it orients to 45 degrees. Training has taught that a stimulus held 12 to 15 inches from the subject’s nose will reach a 45-degree angle at the subject’s shoulders. A more accurate method of determining the 45-degree onset observation is to remember 12 inches out, 12 inches over. This will yield a 45-degree angle from the stimulus to the subject’s nose. The rule comes from simple geometry of the isosceles right triangle.

The second point of interest within the HGN test concerns the time it takes to complete the battery. The stimulus is moved from center to the officer’s right, back to center, and to the officer’s left. The total time for this passage is generally 4 seconds. With the proper pauses of the stimulus at maximum deviation and the correct speed for the 45-degree observation, it should take an officer more than 96 seconds to complete. That is at least 1 minute and 36 seconds. How many times have officers completed the HGN test in under a minute? It is just not possible to accurately test a subject in that amount of time.

The Nine Step Walk and Turn, the most complicated test to interpret with the most clues, had the least amount of changes. One change noticed was in the verbiage to the subject during the instructional stage. The 2006 manual now instructs the officer to explain after the subject has taken the heel-to-toe position, “maintain this position until I have completed the instructions.”

This differs from the earlier manuals in that they indicated “until I tell you to begin.” The new wording brings a discrepancy to the 2006 manual. Officers are told on the test interpretation that a clue is to be scored if the subject starts the test before the instructions are finished. However, the language in the clue activation refers to the language from the older manuals (“until I tell you to begin.”)

Another change made was in the test interpretation. In past manuals, officers were directed to score all eight clues for a subject who failed to complete the test. Now however, officers are directed to just score the clues observed and record the reason for not completing the test. Again, this represents a more logical approach to the SFST battery as it documents the facts of the test. By recording what the subject actually did instead of artificially creating clues, the law officer will be better positioned to testify in court.

One point of interest on the Walk and Turn is often overlooked by officers. The manuals specifically state that officers should limit their movement as that may distract the subject during the test. Case law has also centered on this very topic. The use of flashlights to illuminate the subject’s path may contribute to distracting the subject and causing balance issues.

Officers should provide the subject with the instructions for performing the test and then move off to a position that allows them, without moving further, to clearly observe the subject. The only time this would change is with a severely intoxicated individual where the officer is concerned about the subject’s safety.

Finally is the One Leg Stand (OLS). There are two changes to note for the OLS. The first is a verbiage change during the instructional stage. Officers are now instructed to tell subjects “with the foot approximately 6 inches off the ground, keeping your foot raised parallel to the ground.” The “parallel to the ground” phrase has replaced the simpler “foot pointed out.”

An examination of this simple change elicits concern. The original text was written to be understood by the average 8th grader. The new text is written so that an average 11th grader could comprehend the instructions. This one change will easily generate court challenges. After all, how many intoxicated individuals can’t read and comprehend on an 11th grade level?

As with the Walk and Turn, the OLS test interpretation has changed. Past manuals had officers scoring all four clues for a subject who was unable to complete the test or placed his foot down three or more times. The “three or more times” phrase has been completely removed from the test interpretation. Should the subject put his foot down two, three, or even four times, the officer should only score the clue once. At least one other clue needs to be scored before the subject is considered to have failed the OLS test.

Fields notes associated with the SFST battery will also need to be updated to reflect the new changes and modifications. For example, the order in which the eye observations are recorded has changed. A full review of department paperwork should be completed.

In addition, all officers must be updated in their capacity as SFST practitioners. An agency can not update its forms without updating its personnel first. A few states, such as Colorado, have mandated that officers must go through a certification process for SFST every two years. During that two-year period, they must have two hours of additional training on the SFST battery.

Note-taking by officers observing subjects performing the SFST battery is of great interest to both parties in a prosecution. The defense is looking to the officer’s notes for exclusions, items that are commonly seen with intoxicated people but not recorded for this instance. Prosecutors want to see every possible clue and observation. Convictions can be gained through the officer’s observations alone without the use of the SFST battery if the officer follows the documentation procedures outlined in the manual. Knowing what to look for before the SFST battery begins and then being able to articulate those observations can often lead to the success of failure of a case.

Officers who were trained on the SFST battery before 2006 and have not updated their training have no reason to fear that their new DWI/DUI cases will be dismissed in court. The officer’s level of training is the standard of measurement as opposed to the new SFST battery. But an officer who does receive the new updates will be looked upon more favorably by the prosecutor and most likely subject to fewer challenges by the defense.

The changes made by NHTSA to the SFST battery and the DWI Detection manual will have impacts throughout the country. New court challenges and rulings will affect officers’ performances on the SFST battery. No one can eliminate the court challenges completely. But an officer who follows the manual and offers very little deviation from the norm will walk away from any challenge with his integrity intact and—one hopes—convictions for DWI/DUI.

Sergeant Chris Gebhardt is the administrative / SWAT supervisor for the Cottonwood Heights Police Department in Utah. He is a former lieutenant with the Metropolitan Police Department in Washington, DC and is a current SFST instructor. He can be reached at chris@chpolice.org.



Published in Law and Order, Apr 2009

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