True or False--Field Sobriety Tests are the only Divided Attention Tests in a DWI Investigation

Posted on May 6, 2011 by Stephen Hamilton

 A Lubbock Police officer (or DPS, Texas Tech police or any other law enforcement officer) in trial on a driving while intoxicated case in Lubbock typically testifies that the three "standardized field sobriety tests" are divided attention tests.  I often hear the following:

"These tests are designed to divide a person's attention just like driving a car"

"These tests help me (the officer) determine if the driver is intoxicated"

The problem with these answers is simply they are not true as to whether a person can safely operate a motor vehicle.  The fact is that if driving is a divided attention test then the grade should not be from some abnormal tests that nobody ever does when trying to get their driver license.  Has anybody ever had to put their arms down to their side, raise one leg off the ground 6 inches, point their foot out, look at their foot and count out loud, one thousand one, one thousand two, etc till the officer says stop in order to get a driver license?  Answer: ABSOLUTELY NOBODY!!  

The fact is these balance tests show little when it comes to whether a person can operate a vehicle in a safe manor.  I'm Stephen Hamilton, Board Certified Criminal Law by the Texas Board of Legal Specialization and I fight these worthless, government propaganda stupid human tricks every day.

 

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Divided Attention Tests are designed for failure

Posted on April 26, 2011 by Stephen Hamilton

We have discussed before that the field sobriety tests done by a police officer when he or she arrests somebody for a Lubbock DWI are basically designed for somebody to fail.  

Here is what we do know: 

  • none of the field sobriety tests were designed to determine if somebody can safely operate a motor vehicle
  • none of the field sobriety tests can test whether somebody is "intoxicated" because they have lost the normal use of their mental or physical faculties
  • the initial "validation" studies for the field sobriety tests were done in a lab not out on the street and the success rate at determining whether a person's blood alcohol concentration was over a .10 (legal limit at the time) was in the 60 and 70% mark
  • the three field "validation" studies did not contain any independent evaluators to watch the police officers and provide independent analysis
  • the field tests, whatever minimal validation there exists, cannot compensation or be adjusted for errors in the testing by the police officer
  • the latest study actually changed the scoring procedure on one test to allow the officer to count as intoxicated individuals who's blood alcohol was .03 to .06 which is below the legal limit and not intoxicated under state law
  • The same study shows if the officer does the test wrong his percentage of intoxicated arrests goes up because subjects who are not intoxicated still show the clues he is counting as intoxicated
  • Most importantly we know that the scientific community overwhelmingly believes these balance dexterity tests have no validity and no place in science

Now we also know that

No, you really can't focus on the road while you're yakking away on your cell phone -- and a new study explains why.

This new research builds on the well-known "Gorillas in Our Midst" experiment, a staple of Psych 101 courses. Researchers say they can now explain why many people fail to see a "gorilla" who unexpectedly appears in a video when their attention is focused on another task -- it's because they have lower "working memory capacity," a measure of the ability to keep your brain tuned into many things at once.

In the study, 197 psychology students (ages 18 to 35) watched a 24-second video of six people playing basketball. They were asked to count the number of bounce passes and aerial passes made by the black-shirted team. Twelve seconds into the video, an actor dressed in a gorilla suit walks into the hoops game, pounds his chest, then leaves. The "gorilla" appears on screen for eight seconds.

After viewing the segment, researchers asked participants for the two different pass counts and whether they noticed anything unusual in the clip. Slightly more than half the participants, or 58 percent, noticed the ape but 42 percent did not.

Amazing isn't it that driving isn't a divided attention task after all and yet everyday officers who make an arrest for a Lubbock DWI always testify that these balance and dexterity tests mimic what we do daily in a car.  

As the old saying goes, "garbage in, garbage out."

 

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Lubbock DWI Field Sobriety tests are a FRAUD

Posted on October 23, 2009 by Stephen Hamilton

Pretty aggressive statement right?  The truth is that the field sobriety tests used to arrest folks in Lubbock and all over Texas for driving while intoxicated have major flaws.  Many articles have been written to show all or lots of the problems with the balancing tests.  One area of major concern with the balance exercises is that there were NO pier review studies done of the standardized field sobriety tests before they were used widespread.  Now pier review articles reviewing the "standardized field sobriety tests" are being conducted and the results should scare everybody.

Much of the new research shows the lack of validity in the Walk and Turn, One Leg Stand and Horizontal Gaze Nystagmus.   

A scientific study (144(3) Science and Justice 133-139) has investigated the scientific validity of the nystagmus test: The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and
touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts  throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving while intoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

As Lawrence Taylor, a DUI attorney in California puts it, "Deliberate fraud.  Pretty strong language for a scientific journal. After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity."  

Every DWI trial I have, I try my best to explain to the jury that the fact that a person can't balance perfectly does not mean that my client is intoxicated.

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