F.Y.I.’S on D.U.I.’S “Top Ten Issues on Videotape Reviews”
The following is a list of the top ten issues I have identified as an expert on the Standardized Field Sobriety Tests. I have consistently observed these issues on review of videotapes of DUI traffic stops.
- One- Legged Stand: Pay attention when the officer is giving the instructions for this test. A lot of times the officer will read all of the instructions at the same time, which is incorrect. The officer should give them the instructions and get an understanding prior to proceeding with the second stage “balance and counting”. The other issue observed is that the officer will make the comment during his instructions that if you put your foot down just pick it back up and continue counting. This is incorrect and the only time that instruction should be given is if the person puts their foot down. By giving this instruction during the instruction stage the officer is implying it is ok to put the foot down.
- Opti-Kenetic Nystagmus: When reviewing videotape pay attention to the police vehicle lights when the officer starts to administer the HGN test. If the lights are still on i.e. rotating lights, strobe lights or if you observe passing traffic, note those observations. The officer is supposed to have the person facing away from any of those lights or passing traffic. If the officer does not he could be observing opti-kenetic mystagmus instead of HGN.
- Horizontal Gaze Nystagmus (Number of Passes): When reviewing the videotape you should observe the officer make a minimum of (14) passes with his stimulus (finger, pen, penlight). Count each eye as one pass. You should see a minimum of two passes for equal tracking, proper pupil size and resting nystagmus (one pass for each eye). You then should observe (4) passes for Lack of Smooth Pursuit followed by (4) passes for Distinct and Sustained Nystagmus at Maximum Deviation and finally you should observe (4) passes for Onset of Nystagmus Prior to 45 degrees for a total minimum number of passes of (14).
- Horizontal Gaze Nystagmus (No# of Stops of the Stimulus): When reviewing the videotape you should see the officer stop the stimulus a minimum of (8) times if the officer has observed all six clues. Four times would be as the officer is conducting Distinct and Sustained Nystagmus at Maximum Deviation. The other four would be when the officer is conducting the Onset of Nystagmus Prior to 45 Degrees.
- Walk and Turn & One Legged Stand: When reviewing videotape pay attention to hear if the officer asks the person if they have any physical problems or disabilities. Research has shown people over 65 years of age, or people who have back, leg or inner ear problems had difficulty performing theses tests as well as people overweight 50 pounds or more.
- Horizontal Gaze Nystagmus (Pre- Qualification): When reviewing the videotape pay attention and listen if the officer asks the person if they have any eye problems or abnormalities prior to administering the HGN test.
- Traffic Stop Location (wind waves): When reviewing the videotape pay attention to the location of the traffic stop. A lot of times the officer will attempt to conduct roadside field sobriety test as rapidly moving traffic is passing by (interstates, busy highways). These types of locations can create wind waves. You can observe this sometimes: as a vehicle is passing you will observe the person's clothing blowing or vegetation that may be on the side of the roadway, after the vehicle passes. Sometimes you can observe this by watching the onboard video camera. After a vehicle has just passed by you will sometimes see the camera move.
- Walk and Turn (last instruction): When reviewing the videotape listen to see if the officer gives the final instruction “ You may begin and count your first step from the heel to toe position as one”. I have never heard an officer give this instruction. If a person does not figure this out on their own it will be real easy for them to get two clues against them (improper turn and incorrect number of steps). I will be glad to further explain if you just e-mail me or call.
- Police Transmissions: When reviewing the videotape pay attention and listen to hear if the officer calls in a 10-55 (tow) prior to administrating the Standardized Field Sobriety Tests. This could be inferred that the officer already perceives that the person is too impaired to drive prior to even administrating any Field Sobriety Tests. In other words, the eyes see and the ears hear what is already perceived in the mind. It would be advisable for you to get a current copy of the departments administrative 10- codes.
- Incorrect Stimulus Position: When reviewing the videotape pay attention where the officer is holding the stimulus. The stimulus should be held approximately 12-15 inches from the persons nose and slightly above eye level. A lot of times you will see the officer hold the stimulus too close or that the stimulus is too low or high. You also may notice the stimulus not being passed on a horizontal plane.