Chapter 6 Field Sobriety Evaluations

Fifth Amendment challenge—Application of Miranda

Texas Case Law

(1) Fifth Amendment Analysis

The United States Constitution provides protection to its citizens from certain governmental intrusion. Both the Fifth Amendment of the United States Constitution and Article 1, Section 10 of the Texas Constitution protect a citizen from self-incrimination. The federal protects against self-incrimination by providing that “nor shall any person be compelled in any criminal case to be a witness against himself…” Similarly, the Texas Constitution contains a similar provision which provides that “the accused…shall not be compelled to give evidence against himself…” The Texas courts have rejected the argument that field sobriety tests violate freedom against self-incrimination.

The Texas Court of Criminal Appeals has reasoned that field sobriety tests are not testimonial in evidence that implicates the Fifth Amendment because their results do not create “an express or implied assertion of fact or belief. Accordingly, in Chadwick v. State, a police request for defendant to recite ABC’s, count backwards, and read the Texas card while on videotape, are not protected by right to counsel or privilege against compulsory self-incrimination as the three field sobriety exercises are not testimonial in nature. In Dawkins v. State, the Waco Court of Appeals held that although the videotape portraying defendant’s refusal to perform field sobriety tests is admissible, it was suggested that if defendant’s previous poor performance of an alphabet and counting test and officer’s request for a repeat test were portrayed, the defendant may have a good claim of compulsory self-incrimination.

Furthermore, the Texas appellate courts have held that field sobriety tests generally are not subject to scrutiny for violations of self-incrimination, as long as the defendant was not arrested or “in custody”.

The Supreme Court of United States held in Miranda v. Arizona that a person questioned by law enforcement officers after being “taken into custody or otherwise deprived of his freedom of action in any significant way” must first “be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed”. However, an officer’s obligation to Mirandize defendant attaches “only where there has been such a restriction on a person’s freedom as to render him ‘in custody’”.

According to the Supreme Court of the United States, a person is in “custody” only if, under the circumstances, a reasonable person would believe that is freedom of movement was restrained to the degree associated with a formal arrest. Although circumstances of each case must influence a determination of whether a suspect is “in custody” for purposes of receiving of Miranda protection, the ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.

The Texas Court of Criminal Appeals has determined that the determination of custody must be made on an ad hoc basis after considering all of the circumstances under an objective standard. Further, the court has outlined four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave.

It follows that the Fifth Amendment applies only to incrimination evidence that is testimonial in nature. Under Gassaway, the court recognized that the sobriety tests do not unveil evidence that is testimonial in nature because the results merely produce physical evidence of a suspect’s mental and physical faculties. Specifically, the Texas Court of Criminal Appeals has reasoned that field sobriety tests are not testimonial because their results do not create an “express or implied assertion of fact or belief”. Further, in Berkemer v. McCarty, the Supreme Court of the United States concluded that a person is not “in custody” for Miranda purposes when he has been stopped for a traffic violation and asked to perform a field sobriety test. The only exception occurs if the defendant is in custody.

(2) Fourth Amendment Analysis

The Fourth Amendment protects only against unreasonable searches and seizures. It is proper for a “police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, however, the officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime”.

The Fort Worth court of appeals in Arthur v. State held that “a person’s rights under the Fourth Amendment, article one, section nine of the Texas Constitution are not violated by an initial detention and subsequent request to perform field sobriety tests as long as the detention is supported by specific, articulable facts and carefully tailored to its underlying justification”. In that case, the officer observed appellant committing several traffic violations (car weaving out of its lane of travel and speeding). These “articulable facts”, combined with Appellant's admission that she had been drinking, were sufficient to give the officer reasonable suspicion to detain Appellant further to administer field sobriety tests. In response to Appellant’s Fourth Amendment challenge, the court of appeals held that the administration of the field sobriety tests was the least intrusive means by which the officer could verify or dispel his suspicion that Appellant had been driving while intoxicated and the minimal intrusion into Appellant’s personal freedom was reasonable under the circumstances and therefore was not a Fourth Amendment violation.

In a U.S. Supreme Court case, Stansbury v. California, the standard has been stated slightly differently. Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. Stansbury identifies custody as “formal arrest or restraint on freedom of movement” of the degree associated with formal arrest.

However, in a Texas Court of Criminal Appeals case, Jones v. State, the Texas Court of Criminal Appeals held that police requests that suspects perform sobriety tests and directions on how suspects are to do tests do not constitute “interrogation”; neither do queries concerning suspect's understanding of her rights.

(3) State Statutory Analysis

Other Case Law

Insofar as verbal agility tests, no Texas case has yet wrestled with issues of “content” of speech versus manner of speech, in the context of voluntary field testing.

The trial court acted within its discretion in trial for DWI in admitting breath-test results as sufficiently reliable, even though defendant argued that law enforcement officer contaminated reliability of tests by failing to measure defendant's body temperature, breath temperature, and lung capacity prior to tests, and breath-test technical supervisor testified that temperature could affect reliability of breath testing; supervisor testified on scientific theory underlying test results, officer testified on procedures followed in implementing tests, and supervisor's testimony on temperature went to weight to be given evidence, not its admissibility.

Statutory or Regulatory Controls

Each state has the option to pass statutes or regulations controlling field testing. No statutes have been passed in Texas mandating that any field tests are obligatory. Even the “approved” initial alcohol screening test (e.g., by use of an Alco–Sensor) is a voluntary test.

Texas has delegated the responsibility for police training to the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE). [The address for the TCLEOSE headquarters is 6330 U.S. 290 East, Suite 200, Austin, Texas 78723. Their phone number is 512-936-7700 and their fax number is 513-936-7714 or 512-936-7766.] In accordance with that training mandate, TCLEOSE has adopted NHTSA standardized field sobriety training. Visit the TCLEOSE website at www.tcleose.state.tx.us.

TCLEOSE sets the minimum standards of enrollment, examination, and licensure relevant to becoming a Texas peace officer.

§ 6: Horizontal Gaze Nystagmus (HGN)-Generally

What is "Nystagmus"

Webster’s Dictionary Definition:

Nystagmus is defined as "a rapid involuntary oscillation of the eyeballs".

Law Enforcement Definition:

“Nystagmus” is a term used to describe a "bouncing" eye motion that is displayed in two ways: (1) pendular nystagmus, where the eye oscillates equally in two directions, and (2) jerk nystagmus, where the eye moves slowly away from a fixation point and then is rapidly corrected through a "saccadic" or fast movement. Horizontal Gaze Nystagmyus (HGN) is a type of jerk nystagmus with the saccadic movement toward the direction of the gaze. An eye normally moves smoothly like a marble rolling over a glass plane, whereas an eye with jerk nystagmus moves like a marble rolling across sandpaper. Most types of nystagmus, including HGN, are involuntary motions, meaning the person exhibiting the nystagmus cannot control it. In fact, the subject exhibiting the nystagmus is unaware that it is happening because the bouncing of the eye does not affect the subject's vision.

Side Bar Note

It is interesting that the Government sponsored publication, Horizontal Gaze Nystagmus: The Science & The Law, is directed at “…Judges, Prosecutors and Law Enforcement”. Many believe this is an attempt at getting them to think like a team so that there is no room for independent, unbiased thinking during trial. This is part of the “us versus them” mentality present in so many Texas Courtrooms today. Unfortunately, “us” is the combination of Law Enforcement, the prosecution team with the court while “them” is the defense attorney and the accused citizen. Some prosecutors have even begun instructing the venire that they are also part of the “team”. In this “war on DWI” the judiciary is linked to the prosecution through State sponsored training, shared written materials, joint seminars and even awards programs sponsored by Mothers Against Drunk Drivers (MADD). The Defense Bar must take a more active part in getting the judiciary to commit to participating in an equal share of Defense related activities as they do in Law Enforcement related seminars, training sessions and forums.

SFST Manual Definition:

For our purposes, we will use the definition set forth by the United States Department of Transportation, Nation Highway Traffic Safety Administration. According to the DWI Detection and Standardized Field Sobriety Testing Student Manual (“the NHTSA Manual”) defines HGN as: “the involuntary jerking of the eyes, occurring as [the eyes] gaze toward the side.” Also, Nystagmus is [a] natural, normal phenomenon. Alcohol and certain other drugs do not cause this phenomenon, they merely exaggerate or magnify it.”

During the training program that Texas Peace officers attend in order to become “certified” as a SFST Practitioner they are taught that the eyes normally have the appearance of windshield wiper blades tracking smoothly as they wipe the water off the windshield. They are told that if Nystagmus is present the eyes look like wiper blades as they skip and drag on a dry windshield.

· Practice Nugget ·

Google “Horizon Gaze Nystagmus”, the sky is the limit as to what you will find that the testifying officer does not know.

§ 6: --The standardized components of the HGN

The NHTSA Manual sets out the three elements of the HGN test precisely as follows:

The Lack of Smooth Pursuit (Clue Number One) – The eyes can be observed to jerk or “bounce” as they follow a smoothly moving stimulus, such as a pencil or penlight. The eyes of an unimpaired person will follow smoothly, i.e., a marble rolling across a smooth pane of glass, or windshield wipers moving across a wet windshield.

Distinct and Sustained Nystagmus at Maximum Deviation (Clue Number Two) – Distinct and sustained nystagmus will be evident when the eye is held at maximum deviation for a maximum of four seconds. People exhibit slight jerking of the eye at maximum deviation, even when unimpaired, but this will not be evident or sustained for more than a few seconds. When impaired by alcohol, the jerking will be larger, more pronounced, sustained for more than four seconds, and easily observable.

Onset of Nystagmus Prior to 45 Degrees (Clue Number Three) – The point at which the eye is first seen jerking. If the jerking begins prior to 45 degrees it is evident that the person has a BAC above 0.08, as shown by recent research.

The higher degree of impairment, the sooner the nystagmus will be observable.

· Practice Nugget ·

Have your client tested for Nystagmus issues by a competent eye specialist.

§ 6:3 --Proper procedure for administration of HGN

The Texas Court of Criminal Appeals points out in Emerson v. State, that the technique employed in HGN test, as designed and promoted by the National Highway Traffic Safety Administration (NHTSA), is a reliable indicator of intoxication for purposes of rule governing admissibility of expert testimony. Further, to be considered reliable, evidence based on a scientific theory must satisfy three criteria: (i) the underlying scientific theory must be valid; (ii) the technique applying the theory must be valid; and, most importantly, (iii) the technique must have been applied properly on the occasion in question.

According to the NHTSA Manual, the following protocol must be followed to assure that the validity of the program is not compromised.

• Check for eyeglasses
• Verbal instructions
• Position stimulus (12-15 inches)
• Equal pupil size and resting nystagmus
• Tracking
• Lack of smooth pursuit
• Dist. & sustained nystagmus at maximum deviation
• Onset of nystagmus prior to 45 degrees
• Total the clues
• Check for vertical gaze nystagmus

§ 6:4 --Admissibility of HGN

The most successful area of attack in Texas is officer error during the administration of the test. Under the third prong of Emerson, the officer is required to demonstrate that he followed the proper procedure while administering the HGN test. While Emerson allows some deviation during the administration of the Walk-and-Turn (WAT) test and the One-Leg Stand test it is imperative that the HGN test follow the protocol. Officers often position the stimuli at an improper height, they fail to follow the prescribed movement or they move the stimuli at too great of a speed thereby causing the eyes to jerk. It has been noted that:

One of the test's shortcomings is that the officer administering the test may not be properly trained to understand all aspects of the test and to produce results as accurately as the NHTSA manual suggests. . . .

. . .

. . . To demonstrate a proper foundation, an officer must show that he is trained in the particular procedure, that he is certified in the administration of the procedure, and that the procedure was properly administered. [Footnotes omitted.]

Additional Resources

Jonathan D. Cowan & Susannah G. Jaffee, Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication, 9 Am. Jur. Proof of Facts 3d 459 (1990).

Lawrence Taylor, Drunk Driving Defense, § 4.4.5 (3d ed. Supp. 1994).

Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 (1989); F.R. Irwin, Defense of Drunk Driving Cases (3d ed. 1985).

State v. Superior Court, 718 P.2d 17 (1986) (appendices A and B);

Donald H. Nichols, Drinking/Driving Lit., § 24.09 (1995).

§ 6:5 --Vertical Nystagmus test

Some Texas courts have held that one way to establish the prequisite probable cause to indicate intoxication and therefore warrant a blood or breath test is to test for Vertigcal Gaze Nystagmus (VGN). On the other hand, other courts have ruled that the VGN test is not supported by scientific proof and therefore may not be introduced for DWI by alcohol in a prosecution for DWI.

The NHTSA Manual defines VGN test as an involuntary jerking of the eys (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this tupe of nystagmus is associated with high doses of alcohol for that individual and certain other drugs. The drugs that cause VGN are the same ones that cause HGN.

According to Houston Court of Appeals in Quinney v. State:

the proponent of expert testimony based on a scientific theory, such as the VGN test, must show by clear and convincing evidence that it is (1) reliable; and (2) relevant to assist the trier of fact in its fact-finding duty. As a result, the proponent has the burden of producing the evidence of the underlying scientific theory behind the expert testimony. In Emerson v. State, the Texas Court of Criminal Appeals exhaustively examined the scientific theory behind HGN testing, but did not address the theory behind VGN or resting nystagmus testing. For VGN and resting nystagmus evidence to be admissible, the proponent must present evidence of similar research of the scientific theory underlying those tests.

· Practice Nugget ·

While VGN is excludable from Texas courtrooms, many officers will try to backdoor its presence unless the trial attorney addresses the issue prior to the officer taking the stand. It is best dealt with in a Motion in Limine and is fresh in the Judge's memory. While at the bar addressing the Motion in Limine, I ask the Judge to instruct the State to advise the testifying officers not to mention VGN from the witness stand.

· Practice Nugget ·

Always make sure you suppress any mention of VGN form the video and audio tapes that will be played to the jury.

§6:6 --Other causes of HGN

Courts around the country have taken judicial notice of non-alcohol-related items which exaggerate the visibility of nystagmus in individuals. In Schultz v. State, the Court of Special Appeals of Maryland recognized thirty eight causes of horizontal gaze nystagmus which were unrelated to alcohol: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eyestrain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide; (35) extreme chilling; (36) lesions; (37) continuous movement of the visual field past the eyes; and, (38) antihistamine use. Defense counsel should take note if any of these non-alcoholic causes of horizontal nystagmus are present in their client, and use them accordingly.

· Practice Nugget ·

One of the most commonly occurring causes of non-alcohol related Nystagmus (or a contributing factor to the presence of Nystagmus) is Optikinetic Nystagmus. The officers leave their strobe lights on, they leave the citizens vehicle's flashers or turn signals on, they fail to eliminate the impact of signal lights, flashing street lighting, parking lot and business lights that are in the peripheral vision of the citizen.

As noted in the NHTSA Manual:

The officer must always face subject away from rotating lights, or flashing or strobe lights while performing the HGN test to avoid stimulation of artificial jerking of the eyes from the light. The jerking of the eyes stimulated by this strobe effect is referred to as Optikinetic nystagmus.

I suggest you consider hiring the services of Lance Platt for his disco ball demonstration for Optikinetic nystagmus. At his Standardized Field Sobriety Testing Seminar, Lance created the effect of Optikinetic nystagmus by simulating the rotating lights of a police vehicle with a disco ball. A subject was used who had consumed no alcohol. Each and every time the subject focused on the flashing lights behind the person administering the test, as opposed to focusing on the stimulus right in front of him, the subject's eyes began to noticeably jerk in a very pronounced manner.

"Horizontal Gaze Nystagmu: The Science & the Law: A Resource Guide for Judges, Prosecutors, and Law Enforcement" states:

"The subject should not face towards blinking lights or a police cruiser or passing cars, which may cause Optikinetic nystagmus."

§6:7 --47 types of Nystagmus

There are also 46 types of nystagmus in individuals, separate from Horizontal Nystagmus: (1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced, somatosensory); (4) Associated (induced, Stransky's); (5) Audio kinetic (induced); (6) Bartel's (induced); (7) Brun's; (8) Centripetal; (9) Cervical (neck torsion, vestibular-basilar artery insufficiency); (10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital (fixation, hereditary); (12) Convergence; (13) Convergence-evoked; (14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced (barbituate, bow tie, induced); (17) Epileptic (ictal); (18) Flash induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in); (20) Horizontal; (21) Induced (provoked); (22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent (monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid; (27) Miner's (occupational); (28) Muscle-Paretic (myasthenic); (29) Optokinetic (induced, optomotor, panoramic, railway, sigma); (30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic); (31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating; (33) Physiologic (end-point, fatigue); (34) Pursuit After-induced; (35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38) Reflex (Baer's); (39) See-Saw; (40) Somatosensory; (41) Spontaneous; (42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat; (46) Vertical; (47) Vestibular (ageotropic, geotropic, Bechterew's, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.

· Practice Nugget ·

[The testifying officers often state that they are only trained to identify alcohol induced HGN].

Response to the Above

Ask the officer to contrast in detail the physical difference between alcohol induced HGN and some of the other 47 types of Nystagmus from the list below. Also, ask the officer to describe in detail how he can determine that the jerking observed was caused by alcohol as opposed to the other 38 causes of Nystagmus. Establish that the initial development of the HGN test was conducted in a laboratory setting, without the environmental influences of street arrest scenes.

· Practice Nugget ·

Steve Rubenezer, expert witness and owner of *** , conducts a seminar which addresses the sole issue of Nystagmus and the problems associated with the misapplication of this science in the field of Police Intoxication investigations.