A few months ago I took Lance Platt’s SFST certification course for attorneys. We had mostly defense lawyers and some prosecutors in the room. I didn’t come into this with clean hands. My experience with DWI cases and research of these “tests” tells me they are voodoo bullshit.
I came to this conclusion because as I understood the SFST studies they lacked the markers of real science and quality research; control groups, blind studies, placebos etc. Did you know the field sobriety tests have never been tested on a large groups of individuals who have not been drinking? Or on individuals with different medical conditions? There have been exactly zero studies on gender differences, or on the effect of performing the tests under the stress to mimic the pressure of a typical roadside DWI investigation. Why?
SFST’s are agenda driven science. The feds needed a way to arrest people who had been drinking, but without any bad or impaired driving behavior. So they invented the notion that by performing 10 minutes of balancing tests you can tell if someone is over .08.
The assumption that underlies the SFSTs, that every person under 65 and less than 50 pounds overweight should perform the same, denies the reality of human variability. And that’s largely the point, the SFSTs give officers the ability to arrest whoever they want for DWI, and put a pseudo scientific seal of approval on it.
Since our authoritarian courts allow this junk science to invade our courtroom I have to waste my time learning the intricacies of field sobriety tests. I decided to invest the time in taking the actual seminar so I can know what the officer’s know.
The course was excellent and it confirmed a lot of my beliefs about the original studies that unleashed this nonsense on the public.
A note of any officer who claims to be SFST “certified”. The State had set the bar pretty low for an officer to say he was “certified”. Basically, you had to pass the SFST class and perform the tests for two years, then take a refresher course every two years to stay sharp. I’d say that at least a 1/3 of the officers who I’ve cross examined and claimed to be “certified” weren’t by the State’s standard. And less than 5% knew what the requirements to be certified were. Officers would say “I received a certificate when I passed the class, so I’m certified.” That’s a cute way to define certified, the receipt of a certificate. However, the law had a higher standard. I guess that makes me “certified”.
I’m talking in the past tense because the State abolished that standard. Why? My money is on the fact that so many officers were failing to meet the minimum requirements. So why have them? It would be akin to solving the problem of too many lawyer grievances by abolishing the ethics rules.
DWI enforcement is starved for accountability. Mistakes are rewarded by appellate courts that gloss over whole swaths of the Bill of Rights to uphold DWI convictions. This latest move is just another example.
This is probably the best time to remind the public that IN TEXAS YOU DO NOT HAVE TO TAKE FIELD SOBRIETY TESTS. POLITELY DECLINE, ASK FOR A LAWYER AND SHUT UP.
I haven’t talked about the HGN in a while. But it’s a quasi medical field test. We are asking police officers, with no medical training, to diagnose a specific ocular conditions in a few minutes on the side of the road. The entire SFST class is 24 hours. Even if the officers spent that entire time working on the HGN it wouldn’t be enough to learn about the mysteries of human vision, or the functioning of the human eye. There are scores of conditions that can cause nystagmus, and we teach officer about a handful. There is no training, zero, nada, on distinguishing between all the different types of nystagmus.
The set up for the HGN is usually the same “I want to check your eyes and see if you are ok to drive”. Riiight. Again, you can and should politely refuse. The HGN test is one of the most insidious because the fact finder (and your defense lawyer) have no way to independently verify the results. I can’t see your eyes on video. This lack of transparency in testing means that the state’s magic eye test is hard to challenge in court.
Officers also somehow have a superhuman recall ability on HGN testing. I’ve had cases where an HGN test was done over a year ago, and the officer could still remember how many seconds my client’s right eye “jerked” on the 6th pass of an HGN test.
I’ll save the rest of what I learned for trial, but in the meantime, when you hear someone is “certified” in field sobriety testing know that’s it’s a pretty low hurdle to clear. You need only sit still and listen for 24 hours, and pass the easiest test I’ve taken since, well I can’t remember a test as easy.