Is There One Field Sobriety Test More Frequently Administered Incorrectly?
Interviewer: Any particular tests that police officers’ conduct incorrectly that you see most frequently?
Is the Horizontal Nystagmus Test Correctly Scored?
Aaron Bortel: The horizontal gaze nystagmus test that they follow the finger, pen or flashlight, as I mentioned before isn’t administered long enough. You’re supposed to do a certain number of passes for each eye and they will just go back and forth a couple times and that’s it.
Also, they will claim they see an angle of onset. I know, having been through the course, how hard it is to interpret this. Most of them know that if you say that someone had nystagmus at the extreme, which is when the eye is all the way at the far edge, the outer edge of the eye. If someone had early onset of nystagmus which means involuntary jerking of the eye before a 45° angle that those are clues that will just lead to helping convict someone.
Many Officers Do Not Have Experience Correctly Administering the HGN Test
The nystagmus can be hard to see, especially for officers who don’t do that many of these tests or don’t recertify. Oftentimes they are just writing it down because they know that’s what they’re supposed to write down or think they’re supposed to write down to help the prosecutor get a conviction in a case.
Some Officers Do Not Demonstrate the Test to the Driver
Other tests are not always given correctly. With the walk and turn test, they won’t give them the proper number of steps to walk out. They won’t tell them how to turn properly. They won’t demonstrate the tests. They may not tell them to count out loud.
The one leg stand test is given incorrectly many times as indicated in the reports and the videos that I watch. The instructions are pretty simple and officers do not always say the instructions properly.
The Instructions May Not Be Clearly Relayed
I’ve seen officers say lift your like 12 inches off the ground instead of 6 inches. They won’t say anything about keeping your hands at your side. They won’t say don’t be look at your foot. They won’t say to keep your legs straight. There are just so many different instructions that are not given properly.
There’s the finger count test where you’re supposed to touch the tip of your thumb to the tip of each finger as you count 1234, 4321 backwards and forwards doing three sets. They will not instruct the person to touch fingernail to fingernail, which is what they mean when they talk about the tip of each finger.
They’ll just say touch your finger to your finger and so someone will touch the pad, the front part of each finger with their thumb. Then, the officer will say even though the person had touched the fingers properly, in the proper order and did the proper number sets and everything was fine, they’ll get nitpicky and they’ll say didn’t touch the tip.
Most People Are Unaware the Field Sobriety Tests Are Not Mandatory
Interviewer: Do you find that most people know that they don’t have to be doing this?
Aaron Bortel: No, most of the time they don’t. Some officers will say that it’s not mandatory and then people won’t do it. Most people think that if they do it and they do them fairly well the officers will let them go. They perform the tests not realizing that they’re still going to have to undergo a breath or blood test.
Are There Other Tests Administered by Law Enforcement?
Interviewer: Do police officers ever administer tests that are not part of the standard field sobriety tests?
Z to A: Reciting the Alphabet Backwards
Aaron Bortel: What we have discussed are three standardized tests and not all police agencies instruct their officers to give those. Some will have people say the alphabet backwards. To be honest, I’ve never been able to say the alphabet backwards in my life, so to have someone do that is pretty ridiculous.
There are some other tests that will be given on occasion. It’s rare when I see some of these real crazy tests that don’t tell us anything at all administered.
By Aaron Bortel
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