Problems with Field Sobriety Tests in Pennsylvania

Posted by Joseph D. Lento | Nov 14, 2017 | 0 Comments

After the police stop a driver in Pennsylvania, whether in Philadelphia or any of Pennsylvania's 67 counties, after the relatively standard question of - "Do you know why I pulled you over?" - comes the driver being asked to get out the car.  From that point, it can be a downward sprial until the driver is arrested and charged with driving under the influence.  Because field sobriety tests, also known as "FST's", are such an important, albeit highly flawed, tool used by law enforcement in trying to establish that a driver was driving drunk, an analysis of potential problems with field sobriety tests and how they are administered will be helpful in understanding if the police's use of the FST can be used against the prosecution itself in a DUI case.

Why did the police officer ask me to take a field sobriety test?

Whether a person is facing a first, second, or third DUI, police officers in Pennsylvania stopping suspected drunk drivers may request the motorists to perform field sobriety tests.  These tests are intended to give the police officer an indication of the suspect's foot and hand dexterity and mental ability to comprehend simple instructions.  Field sobriety tests generally take the form of the driver:

  • walking a straight line heel to toe for nine steps, hands at the driver's side, pivoting and returning;
  • touching the index finger to the tip of the nose with each hand while the driver's eyes are closed standing on one foot for 30 seconds; or
  • reciting the alphabet. 

There are also other field sobriety tests, but these are less frequently used; having the driver pick up coins, for example.

How many field sobriety tests can a police officer ask me to take?

The police officer may give one or more field sobriety tests.  While the tests are generally given on the side of the road, some police departments in Pennsylvania administer the tests at the police station.  These police departments may also videotape the test for prospective viewing if the matter goes to court.

What does the field sobriety test have to do with driving under the influence?

The admissibility of field sobriety tests is grounded in theories which link a driver's lack of coordination and loss of concentration with alcohol intoxication (or impairment in cases involving drugs / controlled substances depending on the field sobriety test used).  This relationship is also recognized in what is generally accepted as the common indicia of intoxication within the understanding of ordinary people.

The inference of alcohol intoxication is derived if the driver does not the perform the field sobriety test according to the police officer's instructions; for example, walking off the straight line, not touching his or her finger to the tip of his or her nose, not standing on one foot for a certain time period, or forgetting letters in the alphabet.

What is the main problem with field sobriety tests?

The problem with field sobriety tests in Pennsylvania being used to determine evidence of alcohol intoxication is that there is no standard to judge, for example, if a suspect's inability to walk a straight line is caused by excess alcohol, or by the driver's fatigue, health problems, or poor balance in general. 

In addition, no medical or scientific standards exist to correlate poor performance on a field sobriety test in Pennsylvania with alcohol intoxication.  In fact, scientific testing has verified that issues besides alcohol factor into a driver failing a field sobriety test.  On a related note, scientists have tested police officers to gauge whether the police officers' interpretations of field tests correlate with alcohol intoxication.  In most instances, the police officers were unable to relate poor field sobriety testing with alcohol intoxication.

The dilemma that DUI defense attorneys face is that a driving under the influence case is regularly associated with a police officer's personal opinion as to whether the driver passed or failed the field sobriety test.  A related consideration is the language used to asses a field sobriety test is: "pass" or "fail".  The "all-or-nothing" result highlights the subjectivity in the police officer's interpretation of the field sobriety test(s) and the lack of scientic standards to support such tests.

Are there guidelines for how police are supposed to administer field sobriety tests?

The National Highway Traffic and Safety Administration of the United States Department of Transportation (NHTSA) has issued procedures for field sobriety tests, and more specifically, scores for the walk-and-turn test (walking a straight line) and the one-leg-stand test.  Despite these federal procedures, police officers in Pennsylvania and throughout the nation) admit that their judgment of failure is subjective or personal and that they cannot necessarily relate a driver's failure to known standards.

What is the Horizontal Gaze Nystagmus (HGN) test?

A more recently-created test is the alcohol gaze nystagmus test, also called the Horizontal Gaze Nystagmus (HGN) test.  This field sobriety test is performed by the police officer holding a pen light or a pen at the subject's eyes and moving it horizontally across the driver's sight line.  The driver is instructed to hold his or her head straight and to follow the moving object with his or her eyes.  Jerking of the eyeball, which is known as "nystagmus", as distinguished from a smooth following of the object by the eyeball is supposed to indicate that the subject has a blood alcohol content of 0.10% or above, which would be a "per se" indication of alcohol intoxication ("per se" means "on its face").

Is the Horizontal Gaze Nystagmus (HGN) test accurate?

Although the HGN test has been promoted as accurate by the National Highway Traffic and Safety Administration of the United States Department of Transportation when used in conjunction with the walk-and-turn and the one-leg-stand test, the HGN test has been criticized by the some int the scientific community as being inaccurate.  As such, evidence of an HGN test has been held to be inadmissible as evidence against a person charged with DUI because the scientific reliability of the test has not been established.  A Pennsylvania court went as far to note that despite a police officer's two-day training course on the use of the Horizontal Gaze Nystagmus test and field sobriety tests generally, the police officer was not qualified to testify regarding the scientific principles underlying the HGN test.  Another example of the issues with the HGN test is illustrated by another Pennsylvania court case.  In this case, when no other field sobriety tests were administered, and the person charged with driving under the influence refused to submit to a blood test, the admission of the HGN test results and an optometrist's testimony was so prejudicial to the DUI defendant as to warrant a new trial.

There has been a slight shift in the recognition of the Horizontal Gaze Nystagmus test, however.  The Pennsylvania Superior Court has held that the HGN test results are admissible at any court hearings related to the court's consideration of probable cause, but the results are still not admissible at an actual DUI trial.  Because Pennsylvania DUI defense attorneys file "pretrial" motions seeking the suppression of of Breathalyzer results, blood test results, and other evidence that could be used against a person charged with driving under the influence, at a probable cause hearing, a defendant's attorney will argue that the arresting officer did not have probable cause to arrest the person.  If the court grant's the defense attorney's pre-trial motion, evidence obtained after the arrest (Breathalyzer results, blood test results, etc.) should be suppressed at the DUI trial itself.  The Pennsylvania Superior Court's decision regarding the admissibility of HGN tests means that a Pennsylvania police officer will be permitted to testify about HGN test results before a judge considering the pretrial motion, but the police officer could not present the same testimony to a (different) judge or jury at a trial.  (It would be a different judge at trial because the judge who heard the pre-trial motion would have to "recuse" him or herself and not preside over the actual DUI trial because the judge would have heard testimony and evidence related to the cause during the pre-trial motion.)

Is a driver required to take a field sobriety test?   Will a driver's license be suspended for not taking a field sobriety test?

A person suspected of driving under the influence is not required to submit to a field sobriety test unlike a chemical test such as a Breathalyzer for example.  A DUI suspect may refuse without automatically having his or her driver's license suspended.  By extension of logic, unlike a person's refusal to take a chemical test, a refusal to take a field sobriety test cannot be used as incriminating evidence against a defendant.

Despite the above considerations, a police officer is not obligated to advise a person suspected of being under the influence of his or her right to refuse to take a field sobriety test.  This is the case regardless of whether the FST is administered on the side of the road or at the police station because field sobriety tests are generally considered not testimonial in nature or an "admission" against self-interest in violation of a person's right to remain silent under the 5th Amendment of the United States Constitution.

For example, a police officer's roadside request for a DUI suspect to recite the alphabet, in full view of the public after a routine car stop, was deemed "non-coercive" by Pennsylvania courts, and therefore does not require the defendant to receive Miranda warnings (being informed that the person has the right to remain silent, the right to an attorney, and that anything the person say can be used against them court proceedings).

Is a driver required to take a field sobriety test after being arrested?

Being arrested does not necessarily mean being handcuffed, but being handcuffed generally would be recognized by Pennsylvania courts as evidence that the person was under arrest.  A driver suspected of DUI would be very likely considered "under arrest" if he or she was transported to the police station even if the police officer did not inform the driver that the driver was "under arrest."  After a person is arrested, however, for a field sobriety test to be deemed constitutional and not a violation of one's rights, a DUI suspect must be advised of the Miranda warnings if any of the evidence used is indicative of the DUI suspect's mental faculties and would be "communicative" in nature.  For example, if a DUI suspect did not understand the FST instructions and asked the police officer to clarify, if the DUI suspects' request in this regard was indicative of being under the influence (for example, if the defendant's statement made limited sense), the police must advise the DUI suspect of his or her Miranda rights.  This rule also includes a DUI suspect's asking a police officer questions specifically about Miranda warnings themselves if they could be deemed "ambiguous and inconsistent with the police officer's explanation of those rights." 

For example, consider the following: a DUI suspect is brought back to the police station and is asked to perform a FST.  The DUI suspect does not understand the instructions as to how to perform the field sobriety test and asks the police officer to explain again.  If the DUI suspect's statement to the police officer to explain was jumbled or did not "make sense" for example, the DUI suspect is required to receive his or her Miranda warnings.  If the DUI suspect made a statement that did not make sense regarding the Miranda warnings, the police have to clarify what the DUI suspect is trying to say regarding the Miranda warnings. 

Pennsylvania courts have addressed this issue and have held that if a DUI suspect, in response to Miranda warnings, stated that he or she cannot afford an attorney, the police must clarify the defendant's statement regarding the warnings or why he or she made this statement.  Although routine booking questions such as a DUI suspect's height, weight, and related matters, do not require Miranda warnings, Pennsylvania courts have also held that more specific questions may invoke law enforcement's need to advise as to Miranda warnings.  For example, when a DUI suspect was asked to calculate his sixth birthday, Miranda warnings should have been provided.

Because there is much interplay between how field sobriety tests are administered and what a DUI suspect may state to law enforcement, DUI suspects have to be mindful that they have rights despite being arrested.  If a person's rights who is suspected of DUI are violated, an experienced attorney will be able to leverage these violations against the prosecution with the goal being potentially suppressing unfavorable evidence, and ultimately, having the defendant either found not guilty, or having the DUI charges dismissed or withdrawn.

Philadelphia DUI Attorney | Pennsylvania Attorney to Fight Field Sobriety Tests

Whether facing a DUI case as a CDL holder, an out of state driver, an underage driver, or a regular person, being charged with a DUI in Pennsylvania, whether in Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, Northampton County, can have severe consequences if an aggressive defense is not mounted.  One point of attack that an experienced DUI attorney can exploit are the recognized problems with field sobriety tests and how they are administered.  Attorney Joseph D. Lento can help you or your loved one analyze what may have been improper regarding a DUI defendant's car stop and arrest, but also any FST's that were performed by law enforcement in trying to make their case.  Contact him today for help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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