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1998 NHTSA says FST does not mean Impaired


Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilvalaw.com. Great lawyers, helping great people. And now for your host, sought-after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer Patrick Silva. In today's podcast, we're going to be discussing what I'll refer to as the 1998 San Diego NHTSA study.
The actual correct name of that study is called Validation of the SFST Battery at BAC's Below 0.1%. However, if you're ever having discussions with another DUI trial lawyer, everybody will recognize it as the 1998 San Diego NHTSA study.
But this is where it's really important from this document. This is page 28 of this document, and I'll get into that in a little bit. But let's talk a little bit more about, why is this so important? And the other three studies.
If we go back to 1975, we have the start of the original NHTSA studies where they were trying to establish the standardized field sobriety test. That was by Dr. Marcelline Burns. What she did was, she took six different field sobriety tests, 10 different cops, and then 238 people over the course of the year. Would come into her lab and the cops would give her the field sobriety tests, or give them the field sobriety tests.
At the end of the field sobriety tests, the officers only had to answer one question, "Is this person over 0.08 or below 0.08?" Now, this is where it gets interesting in that initial 1975 study. If you do just a little basic math, you're going to find that almost 20% of the people that the officers' deemed were 0.08 or higher, actually had zero alcohol in their system. It's still a error rate, and I believe if you divided out and multiplied out, it's going to be a 18%.
Now, after 1975, then we had three other studies that most of the officers recognize. We have the San Diego study, we have a Florida study, and we have a Colorado study. But I'm going to be discussing the San Diego study. It actually starts on page 27.
If we look at the last paragraph on page 27, I'm going to read it verbatim and then we'll discuss it. "Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect test to possess 'face validity.' That is, test that appear to be related to actual driving task. Test of physical and cognitive abilities, such as balance, reaction time, and information processing have face validity to varying degrees based on the involvement of these abilities in driving task. That is, the test seemed to be relevant on the face of it. Horizontal gaze nystagmus lacks face validity, because it does not appear to be linked to the requirement of driving a motor vehicle. The reason is correct, but is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment."
Let's look at that last sentence. The reasoning is correct, but it's based on the incorrect assumption that field sobriety tests are designed to measure driving impairment. Let's go through a series of cross-examination questions. First of all, you have to get the officer to admit or recognize this particular 1998 study. How are you going to do that? Well, I would give him a copy of it. You can serve him a copy through mail. You could drop it off at his police station and ask him to review it. You could give a copy to the district attorney, say, "Pass this on to the D.A." He probably won't. You can give him a copy in the waiting area while he's waiting to testify. But don't sandbag him, give him a copy early.
Then you can say, "Well, did you read this article?" "Yes, I did. It's by the NHTSA, National Highway Traffic Safety Administration. Yes, it's a government entity." "This 1998 study deals with detecting alcohol impairment." "Yes, it does."
Then you could actually go into, "Well, this study actually concludes that there's no link between the field sobriety test performance and the ability to drive a car or measuring impairment." Then you go to that last sentence, and it's actually the first paragraph on page 28. "The reasoning is correct, but it's based on the incorrect assumption that field sobriety tests are designed to measure driving impairment."
If we look at the next paragraph, it says, "Driving a motor vehicle is a very complex activity that involves a wide variety of task and operator capabilities. It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside."
There's another area for a fruitful cross examination. You might ask the officer, "Well, actually, in the 1998 San Diego study, they actually concluded whether or not a person can safely drive a vehicle by testing their roadside performance on these standardized field sobriety tests."
So what can you take away from these two paragraphs? What you're taking away is that the field sobriety tests are not designed to conclude that a person is driving impaired. What the study goes on to say is, they're actually trying to show that there's a link between the performance on the field sobriety test and a specific number on their blood alcohol concentration.
Then going to the last sentence in that paragraph, "Thus SFST standardized field sobriety test results help officers to make accurate DWI arrest decisions, even though SFSTs do not directly measure driving impairment. You could build a whole cross-examination theme that field sobriety tests do not measure driving impairment.
Why is that important? In most states, you're going to have two different charges. You're going to have a charge where the person is charged with driving over the legal limit of 0.08. That's going to be your fight with the alcohol number in the blood or the breath. Then you're going to have another charge, where they're trying to say that the person is driving impaired, and they're going to say, "His impairment is proven by the way he was driving." Or that there's a correlation between his performance on the field sobriety test and impaired driving.
So this is a very important study that you have in your back pocket. It's very important that you serve it upon the police officer if, let's say the state expert gets up on the stand and after they talk about the blood or breath, the D.A. decides to go into a direct line of questioning on, "Hey, the field sobriety tests are great. They're better than peanut butter and jelly sandwiches. Yada. Yada. Yada."
Well, guess what? Most state texts, but I'm going to say almost all of them, at least here in California, they know this study. So when you pull it out and you say, "Wait a minute, you read this study. Let's refresh your memory." And part of this study is part of your basis, remember, reliable basis for your opinion given here today. Pull it out and say, "Well, wait a minute. You just said that the performance on the field sobriety test was poor. They had so many clues, and that was a direct relation to show that they're impaired under the eight count." What you're going to say is, pull this out and said, "Well, no. That's not what the government says."
So this is important study. Study it, make your cross examination, get real familiar with it. Okay. This is a short and sweet one. It's a very important one. So now, what is it? It's time to put on the boxing gloves, climb in the ring, and have a great fight. This is your DUI Trial Lawyers Academy Patrick Silva. Over and out.
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Patrick J. Silva - Attorney at Law

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