Standardized Field Sobriety Tests

Mr. Fisher has been highly trained in the area of Standardized Field Sobriety Testing ("S.F.S.T.s"). Fred Fisher has attended three (3) student courses, as well as the instructor's course in connection with S.F.S.T.s, as promulgated by the National Highway & Traffic Safety Administration ("NHTSA"), an entity within the Department of Transportation. In the old days, if you will, it was not uncommon for law enforcement to request that a subject, who might be impaired or intoxicated, to be asked to pick up several coins that were thrown by law enforcement to the ground. Another type of test was reciting the alphabet backwards. Finally, there was the finger to nose test. These three (3) aforementioned tests mean nothing whatsoever.

Therefore, in the 1970s, NHTSA conducted research to determine what field sobriety tests might be standardized. Accordingly, NHTSA found scientifically that there were three (3) tests which were indicators of whether the subject had a blood alcohol concentration ("BAC") of at least .10 of 1%. These tests were referred to as the horizontal gaze nystagmus test, the walk and turn test and the one-leg stand test. Often, when law enforcement offers testimony at pretrial hearings or at a trial, it is not uncommon for the officer to state under oath that the accused failed one or more of these S.F.S.T.s. When asked what the significance was in failing one or more of these tests, the law enforcement officer most often says that the failure means that the subject was intoxicated. This is not what the data revealed.

If one fails the horizontal gaze nystagmus test, there is a seventy seven (77%) percent probability that the subject has a BAC of at least .10 of 1%. Failure on the walk and turn test reveals that there is a sixty eight (68%) percent probability that the subject being tested has a blood alcohol concentration of at least .10 of 1%. Finally, failure on the one-leg stand test indicates that the subject has a sixty five (65%) percent probability of having a BAC of at least .10 of 1%. There is absolutely no credible scientific evidence which states that if one were to fail any or all of the three (3) aforementioned S.F.S.T.s, that the subject performing these tests was intoxicated. The significance of failing the horizontal gaze nystagmus test is that there is a seventy seven (77%) percent probability that the subject has a blood alcohol concentration of at least .10 of 1%. In other words, if one were to fail the horizontal gaze nystagmus test, there is a twenty three (23%) percent probability that the subject does not have a BAC of at least .10 of 1%. Imagine your child rushing home from school to report to you how s/he did on his/her math test. A score of seventy seven on the math test, is no reason for celebration, because that is, at best, a C+ grade. The same rules apply to the walk and turn test and the one-leg stand test, as follows: If one were to fail the walk and turn test, there is a sixty eight (68%) percent probability that the subject has a BAC of at least .10 of 1%, and if the subject fails the one-leg stand test, there is a sixty five (65%) percent probability of having a BAC of at least .10 of 1%. Falsely failing the horizontal gaze nystagmus test, the walk and turn test or the one-leg stand test benefits the accused. Clearly, when the jury is deliberating the fate of someone accused of driving while intoxicated, these percentages and probabilities are explained to the jury with great emphasis and enthusiasm. You should be aware that "driving while intoxicated" in New York State is a crime, and the burden is placed on the Office of the District Attorney to prove your guilt beyond a reasonable doubt, the highest burden of proof in American jurisprudence. In addition, the jury will be instructed, even before they are selected to serve, that you are presumed to be innocent and that this presumption remains with you, the accused, throughout the trial until the jurors, as a group, unanimously agree upon a verdict in the jury room at the latter part of the judicial proceedings.