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2018 DUI Cross Examining the States Witness(es)

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Cross-examinatin is biblical

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Behind the scene video at the NHTSA studying DUI Field Sobriety Guidelines

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https://youtu.be/zrzMhU_4m-g

https://youtu.be/zrzMhU_4m-g

Cross-Examination Tool Box:Evidence

Keeping experts honest one training manual and journal article at at a time.

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OCGA 24-8-803. The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness: (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets, whether published electronically or in print, on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If admitted, the statements may be used for cross-examination of an expert witness and read into evidence but shall not be received as exhibits;



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OCGA 24-6-612 (a) If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.



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OCGA 24-6-612 (b) If a witness uses a writing to refresh his or her memory before testifying at trial and the court in its discretion determines it is necessary in the interests of justice, an adverse party shall be entitled to have the writing produced at the trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.



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OCGA 24-6-612 (b) …continued…If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions of such writing not so related, and order delivery of the remainder of such writing to the party entitled to such writing. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.



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OCGA 24-6-612 (b) …continued… If a writing is not produced or delivered pursuant to an order under this Code section, the court shall make any order justice requires; provided, however, that in c r i m i n a l p r o c e e d i n g s , w h e n t h e prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.



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OCGA 24-8-803(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party;



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1.PAST RECOLLECTIONS RECORDED. Any item can be used to refresh a witness's recollection, provided that the witness eventually testifies from refreshed memory, without further use of the item. Brown v. State, 247 Ga App 741, 545 SE2d 114 (2001); U.S. v. Scott, 701 F.2d 1340, 1346 (11th Cir 1983)

1.The witness must have trouble recalling something before counsel may attempt to refresh. U.S. v. Balthazard, 360 F.3d 309, 318 (1st Cir. 2004).

2.A witness may be refreshed on cross-examination. See, e.g., In re: H.A., 308 Ga. App. 111, 706 S.E.2d 615 (2011).

3.Anything may be used to refresh a witness, regardless of whether the witness prepared it or has ever seen it before. Miller v. State, 275 Ga. 32, 561 SE2d 810 (2002); Ford v. State, 285 Ga App 106, 645 SE2d 590 (2007), see also, US v. Faulkner, 538 F2d 724, 727 (6th Cir. 1976) (Anything, not just writings, may be used to refresh)

Milich, Courtroom Handbook on Georgia Evidence, 2017 Ed., p. 567-568.



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OCGA 24-6-611 (c) Leading questions shall not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily leading questions shall be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Pozner, Larry S. & Roger J. Dodd, in Cross Examination: Science and Techniques argue that there are only three rules: 1. Leading Questions Only; 2. One New Fact Per Question; and3. Cross Examine in a Logical Progression to a

Specific Goal.

•Please answer yes or no questions with a yes or a no answer then you can explain your answer.



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•A true leading question not only suggests the answer, it declares it.

• It is the time to put words in the witnesses’ mouth; to make

• Pozner, Larry S. & Roger J. Dodd, Cross-Examination: Science and Techniques (1993), pp. at 298-299. •Younger, Irving, The Art of Cross-Examination.



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•DO NOT PERMIT THE WITTINESS TO EXPLAIN: Most judges allow witnesses to explain the answer, at length if necessary. However, with the use of leading questions, timing, pace and intonation, the lawyer can control the witness and limit the explanations. If a witness explains an answer, follow with a question that needs no explanation. Get the witness out of the habit of explaining. In the alternative speed the pace of the questions. This is most effective when the questions are very short questions. This is most effective when the questions are very short. •Burke, Peter M., & Gianfranco A. Pietrafesa, An Introduction to Cross-Examination, New Jersey Lawyer, the Magazine, December 1998. • Younger, Irving, The Art of Cross-Examination. •Mauet, Thomas A., Trial Techniques. •Younger, Irving, The Art of Cross-Examination.



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•SAVE THE EXPLANATION FOR CLOSING: The “Why” is answered during closing argument. “Resist the urge to draw out the cross-examination so the judge or jury comprehend at once the nature of our questioning, and the brilliance of the cross-examiner. Pull it together during summation.”

•McCurley, Mike & Kim W. Mercier, “Cross Examination”.



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•ASK ALL YOUR QUESTIONS AT THE MOTION HEARING BUT DON’T SHOW ALL YOUR CARDS AT THE MOTION HEARING.

•MOTIONS ARE A DRY RUN FOR TRIAL

•FIND OUT WHAT OFFICERS WILL SAY

•FIND OUT WHAT MANUALS YOU NEED

•FIND OUT IF YOU NEED TO FILE A SPENCER MOTION



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•ASK ALL YOUR QUESTIONS BUT DON’T SHOW ALL YOUR CARDS AT THE MOTION HEARING. •MOTIONS ARE A DRY RUN FOR TRIAL •FIND OUT WHAT OFFICERS WILL SAY •FIND OUT WHAT MANUALS YOU NEED •FIND OUT IF YOU NEED TO FILE A SPENCER MOTION

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Wait a minute?

Spencer v. State, S16G1751, Oct. 2, 2017

We granted this petition for certiorari to consider whether the Court of Appeals erred in holding that the trial court properly admitted a police officer’s testimony correlating the results of a horizontal gaze nystagmus (“HGN”) test with a numeric blood alcohol content or “BAC”. Because this testimony was admitted without a sufficient foundation having been laid under Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982), we reverse the judgment of conviction and sentence with respect to the DUI.

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Wait a minute?


We see no valid distinction to be made between testimony that a driver’s blood alcohol content is “estimated” at 0.25 grams, as in Bravo, and the testimony presented here that the results of Spencer’s HGN test generally indicate a blood alcohol content “equal to or greater than .08.” In either case, only a single number was presented to the jury, and that number established a numeric blood alcohol content exceeding the per se legal limit. In effect, these “linguistic gymnastics,” as noted by the Missouri Court of Appeals in State v. Rose, enable the State to present to the jury a blood alcohol content that is conclusive as to the driver’s intoxication, without satisfying the required evidentiary standard. This is improper. Before any such evidence may be admitted, the proponent must satisfy the requirements established by Harper.

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Wait a minute?


Here, the State failed to meet that standard, presenting less supporting evidence than that found insufficient in Bravo. On cross-examination, the officer testified that his knowledge of the HGN test was based on his participation in police training totalling approximately two weeks, and that he had no medical, physiological, or other specialist training. While the officer testified, over objection, that the test was “scientific” because his training “has shown [him] that there’s a correlation between the clues observed in this evaluation and blood alcohol content. There’s a direct connection between the two of them,” and that “several studies” supported this, he did not identify the studies and they were not admitted into evidence. No scientific or medical testimony was presented at trial.

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THE STOP

A DUI ARREST IS BROKEN DOWN INTO THREE PIECES ACCORDING TO THE NHTSA MANUAL 1. VEHICLE IN MOTION2. PERSONAL CONTACT3. STANDARDIZED FIELD SOBRIETY EVALUATIONS

FIRST WE LOOK AT THE STOP AND VEHICLE IN MOTION.

THE PROSECUTION ALREADY TALKED ABOUT WHAT YOUR CLIENT DID WRONG TALK ABOUT WHAT YOUR CLIENT DID RIGHT.

WEAVING: WHY WAS HE WEAVING? DID YOU ASK?

HAMMER LOOKING FOR A NAIL.

NOT AN UNBIASED INVESTIGATION.

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THE STOP

KNOW YOUR AUDIENCE. SPEAK IN LANGUAGE THAT RESONATES WITH THEM.

JUST A RIGGED WITCH HUNT. SAD!

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THE STOP

Vehicle in Motion

•The driving behaviors are presented in four categories: • Problems in maintaining proper lane position • Speed and braking problems • Vigilance problems • Judgment problems.

DUI Detection & SFST, Phase One: Vehicle In Motion, Session 5, Page 8 of 66 (2018).

•The first category is Problems in maintaining proper lane position. [p=.50-.75] •• Weaving • • Weaving across lane lines (lane departure) • • Drifting • • Straddling a lane line • • Swerving •• Almost striking object or vehicle • • Turning with a wide radius. DUI Detection & SFST, Phase One: Vehicle In Motion, Session 5, Page 9 of 66

(2018).

•Speed and braking problems. [p=.45-.70] • • Stopping problems (too far, too short, or too jerky) • • Unnecessary acceleration or deceleration • • Varying speed • • 10 mph or more under the speed limit. DUI Detection & SFST, Phase One: Vehicle In Motion, Session 5, Page 10 of

66 (2018).

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THE STOP

Vehicle in Motion

•The third problem is vigilance problems. [P=.55-.65] This category includes, but is not limited to: • Driving without headlights at night • Failure to signal or signal inconsistent with action • Driving in opposing lanes or wrong way on one way • Slow response to traffic signals • Slow or failure to respond to officer’s signals • Stopping in lane for no apparent reason.


•Judgment problems. [P=.35-.90] • Following too closely (tailgating) • Improper or unsafe lane change • Illegal or improper turn • Driving on other than designated roadway • Stopping inappropriately in response to officer • Inappropriate or unusual behavior (throwing objects, arguing, etc.) • Appearing to be impaired.


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PERSONAL CONTACT

• SLURRED SPEECH

• ODOR

• FUMBLING FINGERS

• USING DOOR FOR BALANCE

• LEANING ON CAR AS WALKS BACK

• STAGGING OR STUMBLING

• SWAYING WHILE SPEAKING AT BACK OF CAR

• TALK ABOUT WHAT YOUR CLIENT DID RIGHT.

• TALK ABOUT WHAT THE POLICE DID NOT PUT IN THE REPORT.

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PERSONAL CONTACT

Personal Contact •Contact With Driver – Record your observations of the driver's personal appearance, condition of the eyes, speech, odors, inappropriate or inconsistent responses to questions, etc. Record the name and condition of passengers in the vehicle and where they were located. Describe any unusual actions taken by the driver or passengers. DWI Detection & SFST, Processing the Arrested Subject, Report Writing, and Preparation for Trial, Session 12, Page 18 of 42 (2018).

•Exit From Vehicle – Record your observations of the driver's exit from the vehicle and include any unusual actions taken by the driver. Be specific about how the driver exits the vehicle. For example: climbs out of the vehicle, uses the vehicle for support, leans on the vehicle, walks slowly and/or deliberately, stumbles, etc. DWI Detection & SFST, Processing the Arrested Subject, Report Writing, and Preparation for Trial, Session 12, Page 18 of 42 (2018).

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PERSONAL CONTACT

Personal Contact •The research also identified 10 post stop clues. [P > .85] • Difficulty with motor vehicle controls • Fumbling with driver license or registration • Difficulty exiting the vehicle • Repeating questions or comments • Swaying, unsteady, or balance problems. DUI Detection & SFST, Phase One: Vehicle In Motion, Session 5, Page 13 of 66 (2018).

•The research also identified 10 post stop clues. [P > .85] • Leaning on the vehicle or other object • Slurred speech • Slow to respond to officer/officer must repeat • Provides incorrect information, changes answers • Odor of alcoholic beverage from the driver DUI Detection & SFST, Phase One: Vehicle In Motion, Session 5, Page 14 of 66 (2018).

•Unusual Questions -The third technique, asking unusual questions, is employed after you have obtained the driver's license and registration. Using this technique, you seek verifying information through unusual questions. For example, while holding the driver's license, you might ask the driver, "What is your middle name?“ “Where are you going?” “Where are you coming from?” etc. DUI Detection & SFST, Phase One: Vehicle In Motion, Session 6, Page 17 of 28 (2018).

Field Sobriety: HGN

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Horizontal Gaze Nystagmus test or HGN was developed in the early 1980s by the National Highway Traffic Safety Administration (NHTSA) to aid police officers in the determination of probability of BAC impairment of driver relative to being over or under the legal limit.

There are 10 steps in NHTSA systematic administration of the HGN.

1) Check for Glasses2) Verbal Instructions3) Position the Stimulus4) Equal Pupil Size and Resting Nystagmus5) Equal Tracking6) Lack of Smooth Pursuit7) Distinct and Sustained Nystagmus at Maximum Deviation8) Onset of Nystagmus Prior to 45 Degrees9) Total Clues10) Check for Vertical Nystagmus 10/2015 NHTSA DWI Detection and Standardized Field

Sobriety Testing, Concepts and Principles of SFTSs, Session 8, of 82.

Field Sobriety: HGN

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HGN is a scientific procedure while OLS/WAT are not and not subject to Harper.

State v. Pastorini, 222 Ga. App. 316 (1996)(Trial Court affirmed HGN suppression and reversed OLS and WAT suppression based on Administration)

Field Sobriety: HGN

• Nystagmus is "an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties." Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003).

• The medical dictionary lists 45 types of nystagmus.

• For example, ataxic nystagmus is unilateral and occurs in individuals with multiple sclerosis. Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003).

People v. McKown, 924 NE2d 941 (2010)

•

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Field Sobriety: HGN

• Congenital nystagmus "may be caused by or associated with optic atrophy, coloboma, albinism, bilateral macular lesions, congenital cataract, severe astigmatism, and glaucoma." Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003).

• Gaze nystagmus, which is at issue in the HGN, is "made apparent by looking to the right or to the left," as opposed to fixation nystagmus, "which appears only on gazing fixedly at an object," or latent nystagmus, "which occurs only when one eye is covered." Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003).

People v. McKown, 924 NE2d 941 (2010)

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Field Sobriety: HGN

What WebMD.com has to say about Nystagmus? Nystagmus is caused by many different things, including: • Being passed down from your parents • Other eye issues, like cataracts or

strabismus (crossed eyes) • Diseases like stroke, multiple sclerosis, or

Meniere's disease • Head injuries • Albinism (lack of skin pigment) • Inner ear problems • Certain medications, like lithium or drugs

for seizures • Alcohol or drug use

https://www.webmd.com/eye-health/nystagmus#1-2

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WebMD.com Nystagmus may also affect your vision. You might have a hard time seeing in the dark, or you may be sensitive to bright light. You may have problems with balance and dizziness. These can be worse if you're tired or stressed.

You might get other tests, including: • Ear exam • Neurological exam • Brain MRI • Brain CT scan • Recording your eye movement • Your doctor may ask you to spin around for

about 30 seconds, stop, and then try to stare at an object. If you have nystagmus, your eyes will first move slowly in one direction. Then they'll move quickly the other way.

Field Sobriety: HGN

https://www.webmd.com/eye-health/nystagmus#1-2

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Schultz v. State, 106 Md. App. 145 (1995): The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus. They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; Louise J. Gordy & Roscoe N. Gray, 3A Attorney's Textbook of Medicine §§ 84.63 and 84.64 (1990), and other cases and treatises hereinbefore mentioned.

Field Sobriety: HGN

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Schultz v. State, 106 Md. App. 145 (1995): (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anticonvulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra, State v. Superior Court, supra; Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989);

Field Sobriety: HGN

https://scholar.google.com/scholar_case?case=9482108655666520682&q=106+md.+app.+145&hl=en&as_sdt=80006



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Field Sobriety: HGN

Categories of Nystagmus

Horizontal Gaze Nystagmus is not the only kind of nystagmus. There are other circumstances under which the eyes will jerk involuntarily.

It is important to know some of the other common types of nystagmus, to be aware of their potential impact on our field sobriety tests.

Nystagmus of several different origins may be seen. The three general categories of nystagmus are:

• Vestibular • Neural• Pathological Disorders and Diseases

10/2015 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 15 of 82.

•

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Field Sobriety: HGN

Vestibular Nystagmus is caused by movement or action to the vestibular system. Types of vestibular nystagmus:

• Rotational Nystagmus occurs when the person is spun around or rotated rapidly, causing the fluid in the inner ear to be disturbed. If it were possible to observe the eyes of a rotating person, they would be seen to jerk noticeably.

• Post Rotational Nystagmus is closely related to rotational nystagmus: when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.

Neither Rotational nor Post Rotational Nystagmus will interfere with the Horizontal Gaze Nystagmus test because of the conditions under which they occur.

• Caloric Nystagmus occurs when fluid motion in the canals of the vestibular system is stimulated by temperature as by putting warm water in one ear and cold in the other.


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Field Sobriety: HGN

• Positional Alcohol Nystagmus (PAN) occurs when a foreign fluid, such as alcohol, that alters the specific gravity of the blood is in unequal concentrations in the blood and the vestibular system. This causes the vestibular system to respond to gravity in certain head positions, resulting in nystagmus.

• In the original HGN study, research was not conducted for performing HGN on people lying down. Current research demonstrates that HGN can be performed on someone in this position.


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Field Sobriety: HGN

Nystagmus can also result directly from neural activity:

• Optokinetic Nystagmus occurs when the eyes fixate on an object that suddenly moves out of sight, or when the eyes watch sharply contrasting moving images.

• Examples of optokinetic nystagmus include watching strobe lights, rotating lights, or rapidly moving traffic in close proximity. The Horizontal Gaze Nystagmus test will not be influenced by optokinetic nystagmus when administered properly. During the Horizontal Gaze Nystagmus test, the suspect is required to fixate the eyes on a penlight, pencil or similar object that moves in accordance with the HGN testing procedures, thus optokinetic nystagmus will not occur. The movement of the stimulus and the fixation on the stimulus by the subject precludes this form of nystagmus from being observed by the officer.

• What if the person looks at the flashing light briefly? Has this been studied? If so where? Or is this just Officer experience?


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Field Sobriety: HGN

• Physiological Nystagmus is a natural nystagmus that keeps the sensory cells of the eye from tiring. It is the most common type of nystagmus. It happens to all of us, all the time. This type of nystagmus produces extremely minor tremors or jerks of the eyes. These tremors are usually too small to be seen with the naked eye. Physiological nystagmus will have no impact on our Standardized Field Sobriety Tests, because it’s tremors are usually invisible.

• Gaze Nystagmus is a form of nystagmus that occurs when the eyes attempt to maintain visual fixation on a stimulus.


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Field Sobriety: HGN

Pathological Nystagmus. Caused by the presence of specific pathological disorder, which include brain tumors, other brain damage, or some diseases of the inner ear.


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Field Sobriety: HGN

• Horizontal Gaze Nystagmus is an involuntary jerking of the eyes, occurring as the eyes gaze to the side. It is the observation of the eyes for Horizontal Gaze Nystagmus that provides the first and most accurate test in the Standardized Field Sobriety Test battery. Although this type of nystagmus is indicative of alcohol impairment, its presence may also indicate use of certain other drugs.

• Examples of other drugs are: CNS Depressants, Inhalants, and Dissociative Anesthetics such as PCP and its analogs.


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Field Sobriety: VGN

• Vertical Gaze Nystagmus is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs. The drugs that cause Vertical Gaze Nystagmus are the same ones that cause Horizontal Gaze Nystagmus.

• There is no drug that will cause Vertical Gaze Nystagmus that may not cause Horizontal Gaze Nystagmus. If Vertical Gaze Nystagmus is present and Horizontal Gaze Nystagmus is not, it could be a medical condition.

• For VGN to be recorded, it must be definite, distinct and sustained for a minimum of four seconds at maximum elevation.


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Field Sobriety: HGN

• Resting Nystagmus is referred to as a jerking of the eyes as they look straight ahead. Its presence usually indicates a pathological disorder or high doses of a Dissociative Anesthetic drug such as PCP. If detected, take precautions. (OFFICER SAFETY.)

• Nystagmus may also be caused by certain pathological disorders. They include brain tumors and other brain damage or some diseases of the inner ear. These pathological disorders occur in very few people and in even fewer drivers.

• Nystagmus may also be caused by certain pathological disorders. They include brain tumors and other brain damage or some diseases of the inner ear. These pathological disorders occur in very few people and in even fewer drivers.


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Field Sobriety: HGN

Medical Impairment

The examinations that you conduct to assess possible medical impairment include:

• Equal pupil size

• Resting nystagmus

• Equal tracking


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Field Sobriety: HGN

Pupil size will be affected by some medical conditions or injuries. If the two pupils are distinctly different in size, it is possible that the subject: • Has a prosthetic eye

• Is suffering from a head injury

• Has a neurological disorder


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Field Sobriety: HGN

Resting nystagmus is referred to as jerking as the eyes look straight ahead.

• This condition is not frequently seen. Its presence usually indicates a pathology or high doses of a drug such as a Dissociative Anesthetic like PCP.

• Resting nystagmus may also be a medical problem. Tracking ability will be affected by certain medical conditions or injuries involving the brain.

• This observation is a medical assessment. If the two eyes do not track together, the possibility of a serious medical condition or injury is present.


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Field Sobriety: HGN

• By passing a stimulus across both eyes, you can check to see if both eyes are tracking equally. If they don't (i.e., if one eye tracks the stimulus, but the other fails to move, or lags behind the stimulus) there is the possibility of a neurological disorder.

• If a person has sight in both eyes, but the eyes fail to track together, there is a possibility that the person is suffering from an injury or illness affecting the brain.


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Field Sobriety: HGN

Procedures to Assess Possible Medical Impairment

• Prior to administration of HGN, the eyes are checked for equal pupil size, resting nystagmus, and equal tracking (can they follow an object together). If the eyes do not track together, or if the pupils are noticeably unequal in size, the chance of medical disorders or injuries causing the nystagmus may be present. If the eyes track together, continue with the test and document the results.

• Officers are reminded to ask questions about the subject’s eye and general health conditions prior to administering the HGN test. If a subject responds or volunteers information that he or she is blind in one eye or has an artificial eye, the officer should make note of that and may proceed with the HGN test. If there are any abnormal findings on the pre-test checks, the officer may choose not to continue with the testing. If HGN testing is continued, officers are reminded that this does not follow the standardized protocol and should acknowledge such in any report. 10/2015 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 24 of 82.

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Field Sobriety: HGN

If HGN testing is conducted on a person with a blind eye, typical inconsistent findings could be related to the blind eye not being able to see or track the stimulus, or when the normal eye can no longer see the stimulus, e.g., when checking distinct and sustained nystagmus at maximum deviation on the blind eye side. Source: “Eye Tests on a Suspect with a Blind Eye” Karl Citek, OD, PhD, FAAO, Pacific University College of Optometry, Sept. 2014.

• 10/2015 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 25 of 82.

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Field Sobriety: HGN

Procedures of Horizontal Gaze Nystagmus Testing: The Three Clues

• The Lack of Smooth Pursuit (Clue Number One) - The eyes can be observed to jerk or "bounce" as they follow a smoothly moving stimulus, such as a pencil or penlight. The eyes of an impaired person will not follow smoothly, i.e., a marble rolling across sand paper, or windshield wipers moving across a dry windshield.

• Distinct and Sustained Nystagmus At Maximum Deviation (Clue Number Two) - Distinct and sustained nystagmus is evident when the eye is held at maximum deviation for a minimum of four seconds and continues to jerk toward the side.

• Onset of Nystagmus Prior To 45 Degrees (Clue Number Three) - The point at which the eye is first seen jerking. If the jerking begins prior to 45 degrees it is evident that the person has a BAC above 0.08, as shown by recent research. The higher the degree of impairment, the sooner the nystagmus will be observable.


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Field Sobriety: HGN

What does this all mean?• When a person is impaired by alcohol or certain

drugs, some jerking will be seen if the eyes are moved far enough to the side. p.26 of 82

• Based on recent research, if you observe four or more clues it is likely that the subject's BAC is at or above 0.08. Using this criterion you will be able to classify about 88% of your subjects accurately. This was determined during laboratory and field testing and helps you weigh the various Standardized Field Sobriety Tests in this battery as you make your arrest decision.


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Field Sobriety: HGN

What is your definition of impairment?

•DUI•Over the legal limit•Less Safe to Drive•A BAC range

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Field Sobriety: HGN

Horizontal Gaze Nystagmus Test Criterion 4 or more clues indicates BAC above 0.08 (88% accurate)

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Field Sobriety: HGN

Okay, after Spencer we can only talk about impairment right? so what do these validation studies say? “Driving a motor vehicle is a very complex activity that involves a wide variety of

tasks and operator capabilities. It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions

were recognized by the developers of NHTSA' s SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indications of a driver's BAC, rather than indications of driving impairment. The link between BAC and driving

impairment is a separate issue, involving entirely different research methods.

Those methods have found driving to be impaired at BACs as low as 0.02

percent, with a sharp increase in impairment at about 0.07 percent (Moskowitz

and Robirlson, 1988; Stuster, 1997). Thus, SFST results help officers to make accurate DWI arrest decisions even though SFSTs do not directly measure driving impairment. “

NHTSA Final Report, Validation of the SFST Battery at BACs Below 0.10 Percent, Stuster and Burns, August 1998. (San Diego Study), p. 28.

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Field Sobriety: HGN

Okay, after Spencer we can only talk about impairment right? so what do these validation studies say? Can you say O.C.G.A. 24-4-703?

O.C.G.A. 24-4-403 titled, “Exclusion of relevant evidence on the grounds o prejudice, confusion or waste of time,” provides as follows:

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. NHTSA Final Report, Validation of the SFST Battery at BACs Below 0.10 Percent, Stuster and Burns, August 1998. (San Diego Study), p. 28.

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Field Sobriety: HGN

Overall? What about for under the legal limit? 83 total blew under 0.08. Officers estimated over 0.08 in 24 of those cases which is 28.9% of the time or roughly 1 in 3 times under 0.08 officers were wrong. NHTSA Final Report, Validation of the SFST Battery at BACs Below 0.10 Percent, Stuster and Burns, August 1998. (San Diego Study), p. 18.

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Field Sobriety: HGN

NHTSA, The Robustness of the Horizontal Gaze Nystagmus Test, Marcelline Burns, Ph.D, Sept. 2007, p. 3.

Participants: Twenty-seven participants were recruited via Craig’s List (http://

losangeles.craigslist.org); a large, multi-city Web site where notices about full-time

or part-time jobs are posted. p.6

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Field Sobriety: HGN

NHTSA, The Robustness of the Horizontal Gaze Nystagmus Test, Marcelline Burns, Ph.D, Sept. 2007, p. 6-7 . Any of the following characteristics or conditions rendered an applicant ineligible:

o Alcohol abstainer or light drinker;

o Heavily consumes alcohol or is an alcoholic;

o Current moderate-to-heavy drug use (illicit or medicinal);

o Unable or unwilling to abstain from all drug use for 48 hours prior to a session;

o Unwilling to provide urine specimen for drug screen upon request;6

o Injury or hospitalization within six months; and/or

o Self-reported health problem, acute or chronic.

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Field Sobriety: HGN

36 samples - 25 sample under 0.08 showing more than 4 clues: 69%

NHTSA, The Robustness of the Horizontal Gaze Nystagmus Test, Marcelline Burns, Ph.D, Sept. 2007, p. 14 .

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Field Sobriety: HGN



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Field Sobriety: HGN



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Field Sobriety: Walk and Turn

•California 1977 Lab Study NHTSA analyzed the original SCRI research laboratory test data and found: ◦HGN, by itself, was 77% accurate ◦WAT, by itself, was 68% accurate ◦OLS, by itself, was 65% accurate

NHTSA DUI Detection & SFST, Concepts and Principles of the Standardized Field Sobriety Tests, Session 8, Page 8 of 95 (2018)

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•Colorado 93% accurate at 0.05 and not the 0.08 legal limit! In the Colorado study, correct arrest/release decisions at a 0.05 BAC were 86% accurate based on the three SFSTs (HGN, WAT, OLS) and 93% of arrested drivers had a BAC of 0.05 or higher

◦ These results, by officers who were trained in the SFST curriculum, were substantially higher than the initial 1977 study results. NHTSA DWI Detection & SFST, Concepts and Principles of the Standardized Field Sobriety Tests, Session 8, Page 14 of 95 (2018)

◦In the Colorado study, 79% of all subjects had a BAC of .05% or greater. The officer could arrest everyone and be 79% correct that they were over .05% BAC. So the 86% was only 7% better than the "guess rate". The mean BAC in the study was .152% and 25% of the individuals had BAC of .20% or higher! Even with all that, 24% of the innocent people were falsely arrested.

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◦It is necessary to emphasize this validation applies only when: ◦ The tests are administered in the

prescribed, standardized manner ◦ The standardized clues are used to

assess the suspect’s performance ◦ The standardized criteria are

employed to interpret that performance.


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◦If any one of the SFST elements is changed, the validity may be compromised.


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Use and Maintenance of SFST Field Arrest Log (The International Association of Chiefs of Police (IACP) strongly recommends the use of this log) The SFST Field Arrest Log is used to record the results of the SFSTs performed on suspected impaired subjects. This log is important in documenting an officer's experience and proficiency in performing and interpreting SFSTs. It is highly recommended by the IACP and the National Highway Traffic Safety Administration (NHTSA), that officers utilize an SFST log for the following reasons: • Records training proficiency • Records field proficiency • Documents the officer’s experience All of these combined helps to establish the officer’s credibility in administering the SFSTs and may be used as evidence in court.

NHTSA DUI Detection & SFST, Testing Subjects Practice:

First Session, Session 11, Page 6 of 14 (2018)

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Correlation does not imply causation. Statistical Evidence of Standardized Field Sobriety Tests by MP Hiastata, 2005.

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Field Studies are at best Observational. They don’t control for biases. Observational studies are designed only to identify Hypothesises for further testing.

The researcher has no control over the variables in an observational study. An experiment is a method of applying treatments to a group and recording the effects. Remember, a good group experiment will have two basic elements: a control and a treatment. https://study.com/academy/lesson/experiments-vs-observational-studies.html

https://study.com/academy/lesson/experiments-vs-observational-studies.html



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Walk and Turn Test •What is the Walk and Turn -In the Walking Stage, the subject takes nine heel-to-toe steps, turns in a prescribed manner, takes nine heel-to-toe steps back, counts the steps out loud, and watches their feet. During the turn, the subject keeps their front foot on the line, turns in a prescribed manner, and uses the other foot to take several small steps to complete the turn. The Walking Stage divides the subject's attention among a balancing task (walking heel-to-toe and turning), a small muscle control task (counting out loud), and a short term memory task (recalling the number of steps and the turning instructions). The walking stage divides the subject's attention between a task of listening, comprehending, and carrying out the instruction. NHTSA DWI Detection and Standardized Field Sobriety Testing, Phase Three: Pre-Arrest Screening, Session 7, Page 19 of 39.

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Walk and Turn Test • It is a game of Simon says but no one tells you that you are playing •The WAT instructions don’t inform the client that the officer is measuring his ability to follow instructions •Imaginary Line - How do I know the line you are imaging is the same as the line I am imaging.

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WAT Conditions Whenever possible, the WAT test should be conducted on a reasonably dry, hard, level, non-slippery surface. There should be sufficient room for subjects to complete nine heel-to-toe steps. Recent field validation studies have indicated varying environmental conditions have not affected a subject’s ability to perform this test. 2018 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 62 of 95.

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Standardizing road condition -The original research study recommended this test be performed on a dry, hard, level, non slippery surface and relatively safe conditions. If not, the research recommends: 1) subject be asked to perform the test elsewhere, or 2) only HGN be administered. 2018 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 62 of 95.

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WAT limitations. -The original SCRI studies suggested individuals over 65 years of age or people with back, leg, or inner ear problems had difficulty performing this test. Less than 1.5% of the test subjects in the original studies were over 65 years of age. Also, the SCRI studies suggest individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. Officers should consider all factors when conducting SFSTs. 2018 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 62 of 95.Standardizing road condition -The original research study recommended this test be performed on a dry, hard, level, non slippery surface and relatively safe conditions. If not, the research recommends: 1) subject be asked to perform the test elsewhere, or 2) only HGN be administered. 2018 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 62 of 95.

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Field Sobriety: One Leg Stand

OLS limitations -The original SCRI studies suggested individuals over 65 years of age, people with back, leg or inner ear problems, or people who are overweight by 50 or more pounds may have difficulty performing this test. Less than 1.5% of the test subjects in the original studies were over 65 years of age. There was no data containing the weight of the test subjects included in the final report. Also, the SCRI studies suggest individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. 2018 NHTSA DWI Detection and Standardized Field Sobriety Testing, Concepts and Principles of SFTSs, Session 8, Page 73 of 95.

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Field Sobriety: One Leg Stand

One Leg Stand Test - the subject must raise one foot, either foot, with the raised foot approximately six inches off the ground, with both legs straight and the raised foot parallel to the ground. Have the subject, while looking at the elevated foot, count out loud in the following manner: "one thousand one", "one thousand two", “one thousand three” until told to stop. This divides the subject's attention between balancing (standing on one foot) and information processing (counting out loud). NHTSA DWI Detection and Standardized Field Sobriety Testing, Phase Three: Pre-Arrest Screening, Session 7, Page 22 of 39.

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Field Sobriety: Portable Breath Testing

Possible Factors Affecting High PBT- Breath Contaminants – Some types of PBTs might react to certain substances other than alcohol. For example, substances such as ether, chloroform, acetone, acetaldehyde, and cigarette smoke may produce a positive reaction on certain devices. If so, the test would be contaminated and its result would be higher than the true BAC. Normal characteristics of breath samples, such as halitosis (bad breath), food odors, etc., do not affect accuracy. NHTSA DWI Detection and Standardized Field Sobriety Testing, Phase Three: Pre-Arrest Screening, Session 7, Page 31 of 39.

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Field Sobriety: Portable Breath Testing

Possible Factors Affecting High PBT- Radio frequency interference (RFI) can produce either high or low test results, or can prevent a breath test device from producing any result. Care should be exercised when utilizing a PBT around radio equipment. NHTSA DWI Detection and Standardized Field Sobriety Testing, Phase Three: Pre-Arrest Screening, Session 7, Page 33 of 39.

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Still Waiting

OLEVIK (Plevik) V. THE STATE, S17A0738, Georgia Supreme Court, October 16, 2017.