Walk & Turn Test for DUI - DWI

Note:  This is prosecution oriented information written with a view towards law enforcement and justification of the Walk and Turn test as a field sobriety test.  Please be aware that the Walk and Turn test as a field sobriety test is fraught with problems, inaccuracies, false and voodoo science, and just plain misunderstanding in its administration and application

• In order to perform this DWI test it is required that it be performed on a hard, dry, level, non-slipping surface with sufficient room for the suspect to complete nine heel-to-toe steps. This test loses some validity when conducted in certain wind/weather conditions that counters this criteria. The manual calls for a straight line, which must be clearly visible on the surface but in the DWI course it is taught that the test can be performed parallel to the curb. Conditions must be such that the suspect would be in no danger if he or she were to fall.

• There are some people that this test should not be given to because even the average sober person would have difficulty with this test. People more than sixty five years of age or over fifty pounds overweight, or with any physical impairment that would affect their ability to balance should not be given this test. The officer is trained to take this into account when developing their probable cause to arrest. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes as this may diminish the validity of the results. Individuals who can not see out of one eye may also have trouble with this test because of poor depth perception and should not be given this test.

• The Walk and Turn test is an objective test based upon certain predictable errors that a person under the influence will display, as well as scoring factors that will give the officer a basis for passing and failing other than their subjective opinion.

• In order to properly administer this test it is important to understand what type of test this is. It is commonly referred to as a Divided Attention Test because it divides the suspect's attention between mental and physical tasks. The physical tasks include balance and coordination while the mental tasks include comprehension of verbal instructions, processing of information and recall of memory. While a person may be able to perform one task they may not be able to perform the other if under the influence of an alcoholic beverage.

• While the suspect is performing this test, the officer must observe the suspect from three or four feet away and remain motionless while the suspect performs the test. Being too close or excessive motion may cause the suspect to make errors they may not have committed otherwise. This will cause some validity of the results to be lost as even a sober person may have difficulty under these conditions.

• The officer must give good verbal instructions and accompany this by demonstrations when having the suspect perform this test. They must make sure that the suspect understands the instructions and are trained to receive an acknowledgement of same and to document that affirmative response. This test is scored in relation to eight scoring factors that can be seen in two separate stages. The first stage of this test is called the Instruction Stage.

• This will set the stage for the entire test. If the officer does not follow training and procedure during this stage, it may affect the validity of the entire test. The officer must verbally tell the suspect to assume the heel to toe stance and must demonstrate this. The suspect is told to place their left foot on the line and place their right foot on the line ahead of the left foot, with heel of right foot against toe of left foot. This must be demonstrated. In the absence of demonstration, instructions alone decreases the tests validity.

• The officer is instructed by way of training to make sure the right foot is in front of the left foot to start, in order to maintain uniformity of this test. This also becomes important later in the test during the turning evaluation. If the suspect is instructed or demonstrated improperly it may affect the suspect during this part of the test. After accomplishing the starting position, the officer must inform the suspect to remain in that position until they are told to start walking. The officer must make sure that the suspect understands this.

• There are two ways that the officer, if the procedures have been abided by, that the officer can assess a point to the suspect's performance. If the suspect cannot keep balance while listening to the instructions, a point is scored. This item is only scored if the suspect does not maintain the heel to toe position throughout the instructions.

• The officer is trained to be conservative in their scoring and not to score a point if the suspect sways or uses the arms to balance but maintains the starting position during this stage. A second scoring factor is known as starting too soon. This is given when the suspect starts to walk before the officer instructs them to do so. This can only be scored if the officer specifically instructed the suspect not to start until told to begin and the suspect stated they understood this instruction.

• The second stage of this test is known as the Walking Stage. The officer is to explain the test requirements, using verbal instructions, accompanied by demonstrations. The suspect is informed again, that when told to start, they must take nine heel to toe steps, turn around, and take nine heel to toe steps back. The officer must demonstrate two or three heel to toe steps for the suspect. The officer then informs the suspect and demonstrates the same, that when the turn is performed, the suspect must keep the foot on the line, and turn by taking a series of small steps. If the officer demonstrates or instructs with the beginning wrong foot, the way a suspect turns will be affected also. The officer, then continues with informing the suspect to keep their arms at their sides while walking, watch their feet at all times, and to count their steps out loud. They must be told that they can not stop once they start walking.

• If the officer does not reiterate the question of understanding or gain an affirmative response the test may not be scored fairly and properly, thereby invalidating the results.

• At one time, the maximum score obtained on this test would be nine. Currently, this has been revised to eight. There are six scoring factors that can be observed in this stage. The first one is if the suspect stops while walking to steady themselves. The officer can not score this item if the suspect is merely walking too slow. The suspect must pause for several seconds after one step. If this occurs, the officer is trained to have the suspect begin from the point of difficulty instead of starting over, as this test loses sensitivity if repeated several times. Another scoring factor is referred to as not touching heel to toe. This can be very subjective unfortunately. If the suspect leaves a one half inch or more between the heel and toe or does not walk straight along the line they can only be assessed one point, no matter how many times this occurred.

• By subjective, I mean there is a probability the officer may be overly critical in their estimation of missing heel to toe or reference the suspect's style in walking. The officer can score a point, as well, if the suspect steps off the line. This means that one of the feet must be entirely off the line and not merely diagonal. Even if the suspect steps off twice, they are only given one point.

• During the instruction stage if the suspect sways or uses their arms for balance a point can not be scored. A point can only be scored if during the walking stage, the suspect raises one or both arms more than six inches from the side in order to maintain balance. If this is noticed to be the normal position of the arms, as in some bodybuilders, the officer is trained to take that into account and be conservative in their scoring. Any benefit of the doubt must be given to the suspect.

• The next way a suspect can be given a point is if they lose balance while turning. This item can only be scored if the suspect removes both feet from the line while turning or does not take several small steps, and pivots in one movement as in an about face movement. It is imperative that the officer has demonstrated and articulated this movement properly in order to be scored. It is important that the officer be conservative in their evaluation of this turn and not be overly critical. Finally, the last scoring factor is if the suspect takes the incorrect amount of steps. This item is scored only once, even if the incorrect amount of steps are taken in either direction. The suspect was instructed to look down at their feet while performing this stage of the test and to count their steps out loud, but if they don't adhere to these instructions they can not be scored a point as these are not one of the scoring factors.

• There are two ways that the suspect can receive a maximum of eight points on this test. If they step off the line three or more times or they can not do the test. If they can not do the test, this must be explained by the officer. A degree of reliability has been attached to this test of 68%. If the suspect receives two total points on this test, the officer is trained to use this as probable cause to believe that the suspect is under the influence of an alcoholic beverage and to make an arrest.

  Field sobriety tests

  Police administer a one-leg-stand test after a crash.

  One of the most controversial aspects of a DUI stop by a police officer involve the Field Sobriety Tests (FSTs). FSTs are heavily subjective to the opinion of the arresting officer. Many sober people are unable to perform the tests properly with a false positive rate of 23% and some are even arrested for failing the tests.[12][13][14] The walk-and-turn test is only 68% accurate, and the one-leg stand test is only 65% accurate in healthy individuals, when determining if a person is under the influence. People with medical conditions, injuries, 65 years or older, and 50 pounds or greater overweight cannot be accurately judged by these tests. The officer will administer one or more field sobriety tests (FSTs). FSTs are "divided attention tests" that theoretically test the suspect's ability to perform the type of mental and physical multitasking that is required to operate an automobile. However, these tests can be problematic for people with nonobvious disabilities affecting proprioception, such as Ehlers-Danlos syndrome. The most commonly administered FSTs include:

  * horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction.[15]

  * walk-and-turn (heel-to-toe in a straight line). (This test is designed to measure a persons ability to follow directions and remember a series of steps while dividing attention between physical and mental tasks.[16])

  * one-leg-stand.

  * modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test).

  * finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger).

  * recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this.).

  * touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1).

  * count backwards from a number such as 30 or 100.

  * breathe into a "portable or preliminary breath tester" or PBT.

  Although most law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. In some states, such as Ohio, only the standardized tests will be admitted into evidence, provided they were administered and objectively scored "in substantial compliance" with NHTSA standards (ORC 4511.19(D)(4)(b)).[17]

  FSTs are more effective at determining the level of impairment than they are at estimating the driver's blood alcohol concentration (BAC). However, studies question whether the tests increase the officer's ability to judge either. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DUI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able to drive. This study showed the possible inaccuracy of FSTs.[18]

  An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. Called variously a PAS ("preliminary alcohol screening") or PBT ("preliminary breath test"), the units are small, inexpensive versions of their larger, more sophisticated instruments at the police stations, the EBTs ("evidentiary breath test"). Whereas the EBTs usually employ infrared spectroscopy, the PAS units use a relatively simple electrochemical (fuel cell) technology. Their purpose, along with other FSTs, is to assist the officer in determining probable cause for arrest. Although because of their relative inaccuracy they were never intended to be used in court for proving actual blood-alcohol concentration, some courts have begun to admit them as evidence of BAC. [edit] Probable cause to arrest Main article: Probable cause

  If the officer has sufficient probable cause that the suspect has been driving under the influence of alcohol, they will make the arrest, handcuff the suspect and transport them to the police station. En route, the officer may advise them of their Miranda rights and their legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine.

  Laws relating to what exactly constitutes probable cause vary from state to state. In California it is a refutable presumption that a person with a BAC of .08 or higher is driving under the influence. However, section 23610(a)(2) of the California Vehicle Code states that driving with a BAC between .05 and .08 "shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage."[19] [edit] Chemical test

  At the police station, the arrestee will be offered a chemical test of breath, blood or, much less frequently, urine. Breath test results are usually available immediately; urine and blood samples are sent to a lab for later analysis to determine the BAC or possible presence of drugs.

  If the arrestee refuses to submit to chemical testing, they will usually be booked for driving under the influence; there will be no evidence for filing the second charge of driving with .08% blood alcohol content. In some cases the arrestee may be charged with DUI even after passing a breathalyzer test if he or she refuses also to take subsequent urine or blood tests. However, the refusal will carry increased penalties on the driving under the influence charge (typically a longer license suspension and/or an increased jail sentence), and the act of refusing may be admissible in court as evidence of "consciousness of guilt". In some states, refusal to submit to a chemical test can result in an automatic suspension of driving privileges, regardless of whether the suspect is convicted of DUI.[20] In an increasing number of jurisdictions, if the suspect refuses to take a chemical test the police in some states may restrain the individual and forcefully withdraw blood.[21] This is particularly common in situations involving an accident with injury or death. In some jurisdictions this may require obtaining a warrant from a judge. Some commentators, such as Brown University's Jacob Appel, have criticized the role of medical personnel in this process. According to Appel, "If physicians acquiesce today in the removal of a resistant patient's blood, soon they may be called upon to pump the contents of an unwilling patient's stomach or even to perform involuntary surgery to retrieve an evidential bullet."[22]

  While chemical tests are used to determine the driver's BAC, they do not determine the driver's level of impairment. However, state laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher (see blood alcohol test assumptions).

  Breath and urine tests can only estimate the BAC at the time the test is taken, which can be different than when the vehicle was actually operated.[23] [edit] Booking and charging

  If it is determined after arrest that the person's blood alcohol concentration is not at or above the legal limit of .08, they will probably be released without any charges. One may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions and/or performance on the field sobriety tests. And if there is suspicion of drug usage, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE). Assuming sufficient evidence of impaired driving from drugs, the arrested may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs.

  Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until they are deemed sober enough to be released on bail or on his "own recognizance" ("O.R."). A date to appear in court for an arraignment will be given to them. If they cannot make bail or is not granted O.R., they will be kept in jail to wait for the arraignment on remand.