Washington State DUI DWI Motion to Suppress Field Sobriety Tests
Ted Vosk
Attorney at Law
Don't Do The Time Services
Consulting, briefing and trial services
Bothell, WA 98011
tvosk@comcast.net
Phone: (425) 753-6343
FAX: (425) 820-7532
www.celestialnorth.org/bios/ted's_bio.htm
RENTON MUNICIPAL COURT
KING COUNTY STATE OF WASHINGTON
CITY OF RENTON,
Plaintiff,
v.
XXXXXX,
Defendant. )
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NO. CR0033748 RPD
PRETRIAL BRIEF
DEFENDANT'S MEMORANDUM IN SUPPORT
OF MOTION TO SUPPRESS
(Clerk's Action Required)
______________________________)
TO: THE CLERK OF THE ABOVE ENTITLED COURT; and
TO: PROSECUTING ATTORNEY
COMES NOW, the Defendant herein, XXXXXX, by and through her attorney of record, XXXXXXX, and moves this Court to suppress evidence concerning Ms. XXXXX's performance on Standardized Field Sobriety Tests.
FACTS
On January 22, 2004, XXXXX was pulled over by Renton Police Officer Bill Judd. After performing a roadside investigation, wherein Ms. XXXXX performed field sobriety tests, Officer Judd placed Ms. XXXXX under arrest for suspicion of driving under the influence of alcohol. Ms. XXXXX did not take a breath test and was eventually charged with DUI.
ARGUMENT
1. The City Must Show That Ms. XXXXX's Ability To Handle A Motor Vehicle Was Impaired By An Appreciable Degree Due To Alcohol.
RCW 46.61.502 dictates in relevant part that:
(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(b) While the person is under the influence of or affected by intoxicating liquor or any drug;
RCW 46.61.502(1).
As this makes clear, a per se violation of the statute can be demonstrated only by a breath or blood test. Since there is neither in this case, the State can only proceed on the under the influence prong of the statute. Thus, under ER 105, only evidence tending to establish that Ms. XXXXX was under the influence of, or affected by, alcohol while driving her automobile on the evening in question is admissible or relevant.
In determining whether this provision of the statute has been violated, it must be kept in mind that it is legal for an individual to drink and drive. State v. Franco, 96 Wn.2d 816, 825, 639 P.2d 1320 (1982). Simply establishing that an individual has consumed alcohol before driving is not enough to constitute this crime. State v. Hansen, 15 Wn.App. 95, 97, 546 P.2d 1242 (1976). What the provision dictates is "that the two activities cannot be mixed to the extent that the drinking affects the driving…" Franco at 825. A person's ability to handle a motor vehicle must actually be lessened by an appreciable degree in order for this crime to have been committed. Hansen at 97. Thus, an individual "may be said to have been either 'under the influence of' or 'affected by' intoxicating liquor, if, at the time of the alleged unlawful operation of his automobile…intoxicating liquor has so far affected his nervous system, brain, or muscles, so as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinary, prudent and cautious man, in the full possession of his facilities, using reasonable care, could operate or drive a similar vehicle under like circumstances." State v. Engstrom, 79 Wn.2d 469, 474, 487 P.2d 205 (1971).
2. History Of SFSTs And Recognition Of NHTSA Standards: NHTSA Based Research And Standards Govern The Administration, Scoring And Interpretation Of The SFSTs In The Context Of The Charges Filed Against Ms. XXXXX.
The Standardized Field Sobriety Tests (SFST) were developed pursuant to research commissioned by the National Highway Traffic Safety Administration (NHTSA) beginning in the 1970s. NHTSA is an agency within the Federal Department of Transportation (DOT) and "is responsible for reducing deaths, injuries and economic losses resulting from motor vehicle crashes." In fulfilling its responsibilities, it assists "states and local communities reduce the threat of drunk drivers" and "conducts research on driver behavior and traffic safety, to develop the most efficient and effective means of bringing about safety improvements." These activities "include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery."
The development of the SFSTs consisted primarily of six studies beginning in 1975. From the beginning, NHTSA commissioned the Southern California Research Institute for this purpose with Dr. Marcelline Burns as the principle investigator (PI). Later Anacapa Sciences, Inc. was added to the effort with Jack Stuster joining Dr. Burns as co-PI.
The objectives of the initial study, reported in 1977, were 3-fold: (1) To evaluate physical coordination tests to determine their relationship to intoxication and driving impairment; (2) To develop sensitive tests that would provide reliable evidence of impairment; and (3) To standardize the tests and observations. It initially considered 6 primary tests (One leg stand, walk and turn, finger-to-nose, finger count, alcohol gaze nystagmus (AGN) and tracing) and 4 alternate tests (Romberg balance, subtraction, counting backwards and letter cancellation). It was conducted under laboratory conditions and included tests which attempted to measure "the relationship between the effects of alcohol on the performance of the test battery and the effects of alcohol on driving skills." In other words, there was an attempt to correlate an individual's performance on the physical coordination tests and their ability to drive.
Using test subjects BAC as the determinant, the study found that 46.5% of officer's decisions to arrest, based solely on test performance, were incorrect. Despite the fact that only half of these individuals had BAC levels near the legal limit, for most of the cases in question the physical tests yielded scores indicating that arrest was the correct decision. As a result, the researchers concluded that:
The officer's decision then is not at odds with evidence from the test battery…decision errors occur most often with middle range of intoxication. Quite simply, there are no behavioral cues which differentiate infallibly in a ± .02% BAC margin.
They included "borderline BAC levels" and "failure by the officer to heed the lack of test evidence for intoxication" in the short list of primary sources of false arrest determinations.
The report concluded that standardization of the tests and observation procedures "is highly important. There are wide differences between officers in using tests to assess a driver's state of intoxication, and they may exist within a department as well as between agencies and locales. These differences seriously detract from reliability as well as from the credibility of the officers in court proceedings."
In recognition of this, subsequent studies sought to establish and validate such standardized tests and observation procedures. This process resulted in the 3-test battery we have today consisting of the walk and turn, one leg stand and horizontal gaze nystagmus (HGN) tests. SFSTs consist of this battery of tests performed in the prescribed standardized manner. Emphasizing the importance of such standardization to the usefulness of the SFSTs, the researchers responsible for the 1995 report indicated that:
The validity of the SFSTs hinges on standardized administration and scoring. To the extent that officers' instructions and demonstrations, or their interpretations of observations, differ from those established by research, it diminishes the meaning which can be attached to drivers' test performance.
In recognition of this fact, NHTSA explicitly distinguished the SFSTs from other field sobriety tests. According to NHTSA, the phrase "field sobriety test" could indicate any one of several roadside tests, including the SFSTs, used to detect drunk drivers. Only those that are part of the NHTSA standardized and validated battery qualify as SFSTs though. All other unvalidated tests are of unknown merit.
In the wake of the standardization of the field sobriety tests, researchers saw the proportion of arrest decisions that were incorrect in their SFST validation studies drop greatly. When strictly performed in the standardized manner, researchers reported a low of 9% in the 1998 study. Thus, not only is strict application of standardized methods of administration and scoring necessary if one is to claim that they are utilizing the SFSTs, it is critical if they are to have any of their predictive power.
In 1989, the International Association of Chiefs of Police (IACP) passed an official resolution adopting NHTSA SFST standards. Included in the IACP's mission is to "advance the science and art of police services…to develop and disseminate improved…technical and operational practices and promote their use in police work" and to bring about training to help mold qualified individuals into professional law enforcement professionals. Pursuant to its mission, in 1992 the IACP teamed with NHTSA in formulating and adopting uniform minimum training standards for use in training all law enforcement officers the administration and scoring of the SFSTs. This gave law enforcement an important tool to enforce the per se laws.
As a result, NHTSA's SFSTs are presently employed in all 50 states. They "have become the standard pre-arrest procedures for evaluating DWI in most law enforcement agencies." In order to be certified under these standards, an officer is required to pass a course of NHTSA-approved SFST instruction.
Although the IACP may have taken a leadership role in promoting the SFSTs, they are not the only major law enforcement organization recognizing them. Another notable group is the International Association of Directors of Law Enforcement Standards and Training (IADLEST). "The mission of IADLEST is to research, develop and share information, ideas and innovations that assist states in establishing effective and defensible standards for employment and training of peace officers." IADLEST also adopted the SFSTs as the standard for detection of drunk drivers.
Three things are obvious from this history. The first is that the expression Standardized Field Sobriety Tests is a technical expression relating to a specific package of tools to be utilized in a particular manner in the detection of drunk drivers. It has been developed and promulgated by NHTSA, a federal agency recognized for its expertise in the field of highway safety and charged with funding the development of the SFSTs and training law enforcement in their use in order to reduce the threat of drunk drivers. The second is that strict application of standardized methods of administration and scoring is critical if they are to have any predictive power. Lastly, the SFSTs have gained recognition and acceptance throughout the highway safety and law enforcement communities and throughout all 50 states.
The Washington State Criminal Justice Training Commission (CJTC) was created by the Legislature "to provide programs and standards for the training of criminal justice personnel." RCW 43.101.020. Appropriately, it is also a member of IADLEST. Included within its purview are the powers to establish:
1) Standards for the training of criminal justice personnel; and
2) Minimum curriculum standards for all training programs conducted for employed criminal justice personnel.
RCW 43.101.080.
All law enforcement officers in the State of Washington must complete basic law enforcement training which complies with standards adopted pursuant to these powers. RCW 43.101.200 and WAC 139-05-200. If an officer fails to comply with this requirement, he must be discharged as a law enforcement officer. RCW 43.101.200 and WAC 139-05-200. "The basic law enforcement curriculum…shall include, but not be limited to, the following core subject areas…: (1) Introduction to law enforcement; (2) Criminal law; (3) Criminal procedures; (4) Patrol procedures; (5) Communication skills; (6) Emergency vehicle operation course; (7) Human relations; (8) Traffic law; (9) Firearms; (10) Defensive tactics; and (11) Criminal Investigation." WAC 139-05-250.
The State of Washington wants all of its officers certified in the SFSTs. As a result, one of the requirements of the CJTC curriculum is that all officers must attend a 3 day class, and pass a written examination, on SFSTs. This is the same program established through the cooperation of the IACP and NHTSA and recognized throughout the United States. As a result, if the test is not passed, an officer will be suspended from the academy. Thus, before an individual can become a law enforcement officer in Washington, he must be trained in the SFSTs.
This illustrates the fact that, in addition to their development and promulgation by NHTSA and their recognition in the law enforcement community in general, the CJTC, under the authority granted to it by RCW 43.101.080, has established NHTSA's SFSTs as the standard for roadside sobriety tests in the State of Washington as well.
Given their history and development, it is clear that the SFSTs are scientific in nature. This fact is recognized by the CJTC. For their part, Washington courts have explicitly recognized that at the very least HGN is a scientific procedure. See State v. Baity, 140 Wn.2d 1, 17, 991 P.2d 1151 (2000) and State v. Cissne, 72 Wn.App. 677, 865 P.2d 564 (1994). As lamented by the IACP, however, unfortunately many courts still do not realize that the SFSTs constitute a technology with a scientific basis. Perhaps this is a result of court's failures to distinguish the SFSTs from other field sobriety tests based simply on lay observation and unsupported by systematic, scientific research. Of course such "tests" would not be considered scientific but, as the SFST developers have indicated, they are also of questionable merit.
Viewed as the technological tools they are, the relevant scientific community with respect to the interpretation of the SFSTs includes the researchers who developed the SFSTs for NHTSA. Cf. Baity at 17. Given that the studies have never been subjected to peer review, it is unclear what other scientific communities the validity of the SFSTs is accepted in. Apart from the SFST battery as a whole though, Washington courts have already held that HGN is generally accepted in the relevant scientific communities, at least in the context of a full 12-step Drug Recognition (DRE) battery. See e.g., Baity and Cissne supra.
Based on the entirety of the foregoing analysis, the inescapable conclusion is that the NHTSA based research and standards govern the administration and interpretation of the SFSTs in the State of Washington.
The City is likely to reply that the State Appellate Court has determined that "no Washington case law, statute, or administrative code adopts [the NHTSA SFST] standards." City of College Place v. Staudenmaier, 110 Wn.App. 841, 848, 43 P.3d 43 (2002). While the Court certainly said this, it does not affect the above analysis.
The Staudemaier court did not address, and so was presumably not presented with, the aforementioned arguments concerning the applicability of the NHTSA standards to the SFSTs. The arguments made herein mirror those made in Baity wherein the State Supreme Court recognized the applicability of analogous NHTSA standards to the administration and interpretation of the DRE protocol. Before Baity was decided there was also no Washington case law, statute, or administrative code adopting the NHTSA DRE standards. Thus, the absence of such explicit pronouncements is not an impediment to the argument before the court. The aforementioned analysis shows that these standards are implicit within the law enforcement training standards of this state and the very definition of the phrase Standardized Field Sobriety Tests.
Second, in the recent case of City of Seattle v. Clark-Munoz, the State Supreme Court recognized the role standardized procedures may play in insuring the accuracy of forensic procedures. City of Seattle v. Clark-Munoz, 152 Wash.2d 39, 42, 93 P.3d 141 (2004). The case dealt with a provision of the Washington Administrative Code requiring certain thermometers used in the administration of breath tests to be "traceable to standards maintained by the National Institute of Standards and Testing (NIST)." Id. Crucial to its decision was the fact that it recognized that this phrase had a well understood definition in the relevant technical communities and that it was the definition propounded by NIST, the federal agency responsible for its creation. Id. at 46-48.
The Court determined that the phrase had the definition assigned to it by NIST regardless of whether that was the intent of the state toxicologist. Clark-Munoz at 46-47. In so doing, it enunciated the principle that courts are to "give weight to the technical definition of a technical term promulgated by an expert agency." Id. at 45. The justification for this rule lay in the simple axiom that "if the citizens of the State of Washington are to have any confidence in the breath-testing program, that program has to have some credence in the scientific community as a whole." Id. at 47-48 (quoting Ruling by District Court Panel). There is no reason why these concerns should carry any less force in the area of SFSTs. Especially considering that over 20 years have been invested into their study and development by NHTSA, the federal agency charged with "funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery."
Thus, the City's reliance on Staudemaier would be misplaced. Based on the entirety of the foregoing analysis, the only reasonable conclusion is still that the NHTSA based research and standards govern the administration and interpretation of the SFSTs in the State of Washington.
Even if the Court were to reject the foregoing analysis, however, the NHTSA based standards for the SFSTs would still be binding in the context of this case. At the hearing on May 10th, Officer Judd told the Court that his training on the SFSTs was done according to NHTSA standards and that he was administering the SFSTs to Ms. XXXXX according to those standards. It was affirmed that he knew what NHTSA was so that there was no confusion. He then acknowledged that NHTSA has a specific way that they want the SFSTs administered explaining that "it's a prescribed way of performing the tests." He further indicated that he understood the term standardized to mean that the SFSTs had been tested and constructed to be uniformly applied.
Thus, Officer Judd consciously availed himself of the training supplied by NHTSA and their prior efforts resulting in the establishment of the SFSTs. His purposeful reliance on these resources, originating from "the government department charged with the rules for highway safety" acts as a party admission of the applicability of their requirements and pronouncements to this case. United States v. Van Griffin, 874 F.2d 634 (9th Cir. 1989). As a result, they are at the very least, the law of this case. Further, it can be argued that this applies to the Renton Police Department as a whole. This holds because Renton Police Chief Garry Anderson is a member, and the Washington State designated representative, of the IACP. Given that it was the IACP in cooperation with NHTSA that developed and disseminates the current SFST training and performance standards, the same rationale of Van Griffin applies.
The conclusion is clear. Whether on a state wide basis, or simply within the confines of this case, the NHTSA based research and standards govern the administration and interpretation of the SFSTs in the context of the charges filed against Ms. XXXXX.
3. Evidence of Ms. XXXXX's Performance Of SFSTs Is Irrelevant, Unfairly Prejudicial, Misleading, Confusing And Likely To Cause Undue Delay And Waste Of Time And Thus Is Inadmissible Under ER 104, 105, 401, 402 and 403.
A. ER 104, 105, 401, 402 and 403 Generally - When a Washington Rule of Evidence is identical to the corresponding rule in the Federal Rules of Evidence, the comments thereto are incorporated into the State rule by reference in the Introduction to the State Rules of evidence. Introductory Comment to the Washington Evidence Rules.
In general, "[A]ll relevant evidence is admissible," subject to specified limitations. ER 402. "Evidence which is not relevant is not admissible." ER 402. When evidence is admissible for one purpose but not another, its use shall be restricted to its proper scope. ER 105. The definition of relevant evidence is given by ER 401 which states that:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
ER 401.
"When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b). This provision is the same as the corresponding section of the federal rule, FRE 104(b). Comment to ER 104 Section (b). It provides rules for "handling the situation in which a party wishes to prove fact A, but fact A is relevant only if fact B is established." Comment to ER 104, Section(b). Because of the danger of prejudice involved in admitting evidence that requires the establishment of other facts before it becomes relevant, it must be handled with caution. Id.
While the Comments to the State rule are brief, the Comments to its Federal counterpart offer considerable guidance. In explaining the meaning of FRE 104(b), the comment accompanying the rule states that:
"In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labeled 'conditional relevancy.'"
Comment to FRE 104, Subdivision(b).
The Comment goes on to indicate that when dealing with such evidence, the court must make a preliminary determination as to whether the foundation evidence is sufficient to support a finding of fulfillment of the condition before such evidence can be admitted. Comment to FRE 104, Subdivision (b). Thus, the proponent of the evidence is required to establish the preliminary facts by a preponderance of the evidence. TEGLAND, 5 Wn. Practice §104.2 (4th Ed. 1999).
Even if relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time, or needless presentation of cumulative evidence." ER 403; Hayes v. Wieber Enterprises, Inc., 105 Wn.App. 611, 617, 20 P.3d 496 (2001). Thus, relevant evidence may be excluded where the probative value of evidence is questionable "but the risk that a decision will be made on an improper basis is great." State v. Rivera, 95 Wn.App. 132, 139, 974 P.2d 882 (1999) Opinion Superseded in Part on Other Grounds by State v. Rivera, 95 Wn.App. 132, 992 P.2d 1033 (2000).
The determination of whether the probative value of evidence is outweighed by the danger of unfair prejudice "obligates the court to weigh the evidence in the context of the trial itself, bearing in mind fairness to both the State and defendant." State v. Stackhouse, 90 Wn. App. 344, 356, 957 P.2d 218 (1998) review denied 136 Wn.2d 1002 (1998). "In determining whether or not there is prejudice, the linchpin word is 'unfair.'" State v. Rice, 48 Wn.App. 7, 13, 737 P.2d 726 (1987). Evidence is unfairly prejudicial where it has the capacity to skew the truth-finding process. State v. Read, 100 Wn.App. 776, 782, 998 P.2d 897 (2000).
B. SFSTs and Prejudice - Evidence concerning performance of SFSTs in the context of a criminal trial is prejudicial. In the context of a DUI trial, it cannot reasonably be maintained that juries do not find the results of breath tests enormously persuasive. Even where there are other indications of intoxication, presentation of BAC results can often stand alone as the nail in the coffin of reasonable doubt. In the absence of BAC results, there is much less certainty concerning the cause of an individuals conduct. In such cases, the State uses SFSTs as sort of a surrogate stand in, representing them as "objective" measures of impairment. This combined with the rational tendency to accord great weight to such purportedly "objective" measures elevates them to a high evidentiary level in the minds of jurors and necessarily causes significant prejudice to a defendant.
In recognizing this fact, the American Prosecutors Research institute has stated that:
The importance of field sobriety tests cannot be overemphasized. A successful prosecution may be impossible without the testimony of the officer describing in detail the defendant's performance on the tests. To the fact-finder, especially a juror, the picture created by this description could easily be at least as important as the results of a BAC test when assessing whether a defendant was impaired by the use of alcohol.
The question is whether such prejudice caused by evidence concerning Ms. XXXXX's performance on the SFSTs would be unfairly so. The facts of this case and the applicable law show clearly that it would be.
C. Evidence of Impairment - Evidence concerning Ms. XXXXX's performance on SFSTs as a direct indicator of impairment is irrelevant in the case at bar and thus inadmissible under ER 104, 105, 401 and 402. The first thing that must be established is whether evidence of performance on the SFSTs is relevant on the facts of this case. Remember that ER 104 governs the admissibility of conditionally relevant evidence. Under its provisions, if certain evidence is relevant contingent upon the existence of other prior conditions, the City is required to lay the foundation establishing those prerequisites before the contingent evidence can be admitted. In the case at bar the evidence sought to be introduced is Ms. XXXXX's alleged poor performance on the SFSTs. The prerequisite condition that must be established for this evidence to be relevant is that there is a link between a person's performance on the SFSTs and whether or not his ability to drive is impaired to any appreciable degree. Unless this link can be established, the SFSTs are irrelevant and hence inadmissible for purposes of the case at bar.
"Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment." This "is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment." Recall that one of the goals of the initial studies was to develop just such a battery of tests. An early Department of Transportation study, however, found the 3-test battery to be a poor tool in assessing driver impairment. The developers of NHTSA's SFST battery also soon realized that it was "unlikely that complex human performance, such as required to safely drive an automobile, can be measured at roadside."
Based on these considerations, NHTSA determined that "the only appropriate criterion measure to assess the accuracy of SFSTs is BAC." "As a consequence, they pursued the development of tests that would provide statistically valid and reliable indications of a driver's BAC, rather than indications of driving impairment." "Measures of impairment are irrelevant because performance of the SFSTs must be correlated with BAC level, rather than driving performance." Further, "Impairment varies widely among individuals with the same BAC level." As a result, any link between the performance of SFSTs and driving impairment is a separate issue and is not established by the research on SFSTs.
These conclusions are published by NHTSA itself, not some self-interested third party. They are also amply supported by the facts surrounding the SFSTs. First, the "SFSTs have never been administered to a large, representative group of sober people." As a result, there is no way to determine how a typical individual who is not under the influence of alcohol would perform them. While common sense might seem to dictate that performance on such tests is something we can all draw reasonable inferences from based upon everyday experience, the research available indicates that this is not the case.
In one study, researchers had 21 individuals who had consumed no alcohol or intoxicating drugs perform the SFSTs (not including HGN) and other tasks. Despite the fact that all of these individuals were completely sober, police officers perceived 46% of the subjects performing the tests as drunk and worthy of arrest. The Department of Transportation study mentioned earlier also found the 3-test battery to be a poor tool in assessing driver impairment. While these represent only two studies, it is a sad fact that only a few studies have ever attempted to correlate FST performance with driving impairment.
Based upon these conclusions, it is evident that the SFSTs:
1) Were designed to correlate with BAC levels, not impairment; and
2) Field sobriety tests are not a reliable indicator of impairment.
This being the case, it is clear that even when administered according to NHTSA standards, an individuals performance on the SFSTs is not a measure of whether his ability to handle a motor vehicle has actually been lessened by any appreciable degree due to alcohol. As such, any evidence concerning Ms. XXXXX's performance on the SFSTs is completely irrelevant to the case at bar and any evidence or testimony concerning them must be suppressed under ER 104, 105, 401 and 402.
D. SFSTs as Evidence of BAC - Evidence concerning Ms. XXXXX's performance on SFSTs as a an indicator of BAC and thus an indirect indicator of impairment would be unfairly prejudicial, misleading and confusing in the case at bar and are thus inadmissible under ER 403. The City's likely response to this contention is to concede that the SFSTs do not in themselves demonstrate impairment but that they are relevant since they are indicative of particular BAC levels, which in turn would have the tendency to make driving impairment more or less probable. Since impairment must be proven beyond a reasonable doubt, however, the City would therefore have to prove beyond a reasonable doubt the BAC predicted by the SFSTs. This is not possible.
First, the SFSTs do not allow for the prediction of specific BAC levels. As indicated above, NHTSA early on revealed that no test or test battery permits the determination of BAC levels within ± .02 with any degree of confidence on a regular basis. Worse still, the results of the 1981 study showed the "Officer estimates of the BACs of people they tested differed by .03 on the average from the actual BAC." This has not changed in the intervening years.
In the 1998 study, instead of having officers simply make arrest decisions based on SFST performance as was the practice in the earlier validations studies, NHTSA researchers also had officers estimate drivers BAC. The average error was ± .024 with the largest over estimation giving a BAC level of .077 greater than the true BAC of the driver in question. Officers overestimated driver BAC levels in approximately 45% of these cases. Thus officers assigned an erroneously high BAC level to 130 of the drivers that were stopped during the study.
What is more disturbing, is the rate of overestimated BACs in individuals who had BAC's below the legal limit. For individuals who had BACs between 0 and .04, officers overestimated their BAC 76% of the time while for those with BACs between .04 and .08 they did so 64% of the time.
These officers also had all of the other indicators used on typical DUI stops since this was a field study conducted while officers were in the process of making actual traffic stops. Yet even with this additional information the average deviation between an officers estimate of a driver's BAC based on the SFSTs and his actual BAC was more than a quarter of the per se limit.
Given the propensity of officers to testify that by skillfully administering HGN they can in fact predict a specific BAC, NHTSA insures that this false belief is addressed during their training. In the NHTSA SFST instructor's manual, SFST teachers are instructed in bold capitalized print to "REMIND STUDENTS THAT THE ADMINISTRATION OF HGN IS NOT TO BE USED TO ESTIMATE SPECIFIC BAC LEVEL." Thus, even in their training this is emphasized to law enforcement officers.
The conclusion is simple: SFSTs do not permit prediction of specific BAC levels. What NHTSA has correlated SFST performance with is the likelihood that an individual will be above or below the per se limit, not particular BAC values.
To allow SFSTs as evidence of a particular BAC then, in and of itself misrepresents what they are utilized for. There is no evidence that they are capable of doing so. Such evidence would necessarily be misleading to a jury and as such is inadmissible under ER 403. While it might be argued that any misperceptions could be cured by presenting evidence to the jury of the uncertainty involved in such estimates, the problem is confounded by the way this estimate is being employed. The SFST based estimate of the BAC, with its sizeable uncertainty, is being used merely as a jumping off point for a second estimate, the impairment experienced by a given individual based on his BAC.
As indicated by NHTSA, "Impairment varies widely among individuals with the same BAC level." Nonetheless, it will not be disputed here that stating an opinion as to the likely impairment of an individual based upon his BAC as determined by an accurate method, such as a breath or blood test, is reasonable. The problem occurs when such evidence is offered on the basis of BAC estimates which have an average error greater than a quarter of the per se limit itself. When based on such a shaky foundation, any opinion is little more than rank speculation. As a result, any probativity such evidence may have is far outweighed by the danger that it will mislead or confuse a jury and is clearly unfair to any citizen of the State of Washington.
Given that SFST performance has been correlated with the likelihood that an individual will be above or below a particular per se limit, both the IACP and NHTSA have concluded that they are a good tool for helping to establish probable cause. Ms. XXXXX is not disputing this. Based on this, however, the City may modify the above argument claiming that they can use SFST performance to indicate to a jury the likelihood that Ms. XXXXX had a BAC greater than .08 and from there extrapolate to driving impairment based upon an assumed BAC of .08. This argument suffers from the same difficulties as its original incarnation, however, both technically and legally.
While overall the 1998 study indicates that officers were right in their decisions on whether an individual had a BAC greater than .08 based upon SFST performance 91% of the time, the figure dropped precipitously in the region around the .08 limit. Within ±.02 of the per se limit, the officers success rate dropped to 75%. This is a direct consequence of the sensitivity limitations of the SFSTs indicated by NHTSA researchers. The reason the overall success rate is so high is that the overwhelming majority of drivers stopped, over 86%, was either more than .02 over or under the .08 limit placing them outside the primary region of uncertainty. Even more illuminating is that fact that 74% of those individuals had BACs exceeding a .10.
In order to understand what these figures tell us, we need to take a little bit closer look at them. While significantly lower than the figure for the study as a whole, the 75% success rate in the region of .08 ±.02 of the per se limit is still often misinterpreted as bestowing a great degree of certainty about the estimate at the .08 cutoff. To understand why, it is important to realize that 61.5% of the individuals with BACs within the ± .02 region about the per se point had levels greater than .08. If the SFSTs simply overestimated every individuals BAC who was within this region by .02, the worst success rate the officers could have would be 61.5%. This is because it would put everybody, including all of those with BAC's under the limit, into the category of those with BACs over a .08. In point of fact, officers overestimated the BACs of those under a .08 within this region 64% of the time. Based upon the officers estimates of BAC, this would result in a false arrest rate 56% for individuals within this region.
With this understanding, one sees that the 75% rate of success within this region is due to: (1) the population in question being overrepresented by individuals with BACs in excess of the legal limit and (2) a high rate of both proper and false arrests. In other words, we began with a population weighted with individuals possessing certain characteristics (BAC levels over the legal limit). We then seek to employ a tool (the SFSTs) which has a tendency to overestimate the number of individuals within the population possessing those characteristics, casting a broad net so to speak. As a result, since the population has a greater proportion of individuals possessing the characteristic of interest to begin with, we know in advance that we have greater than a 50% chance of being correct in our decisions. The value of the rate of our success will depend upon the population and our tools tendency to overestimate the existence of the characteristic in question.
Expanding beyond the ±.02 region just considered, overall 29% of those who participated in the study with BACs below a .08 were arrested. Thus, while the SFSTs show outstanding reliability in determining whether an individual is above the legal limit at high BACs, they are very weak at doing so for BACs within the region of .08 ± .02 and below. Thus, while the SFSTs are still an appropriate tool for an officer's determination of probable cause, even used in the manner suggested above they completely fail as being any kind of a reliable guide to an approximate BAC for the purposes of a criminal trial.
Repeating the argument above, "Impairment varies widely among individuals with the same BAC level." Nonetheless, it will not be disputed here that stating an opinion as to the likely impairment of an individual based upon his BAC as determined by an accurate method, such as a breath or blood test, is reasonable. The problem occurs when such evidence is offered on the basis of BAC estimates which would result in a false arrest rate of at least 29% percent, and ranging up to 56%, according to the criteria upon which the SFSTs are based. When based on such a shaky foundation, any opinion is little more than rank speculation. As a result, any probativity such evidence may have is far outweighed by the danger that it will mislead or confuse a jury and is clearly unfair to any citizen of the State of Washington.
Further, the SFSTs cannot be used to absolutely confirm the presence of alcohol either. To the contrary, as indicated above, the most that they allow to be said is that if someone has consumed a certain amount of alcohol, using the SFST criterion an officer will be able to accurately classify an individual as above or below the per se point with the probability determined by the NHTSA validation studies.
The upshot of all of this is that while the SFSTs may give an indication of the presence of alcohol within an individuals system, thus justifying their use for purposes of probable cause, they are incapable of determining the amount of alcohol within an individuals system with any degree of certainty. As a result, any evidence concerning BAC levels based on SFSTs would be unfairly prejudicial, misleading and confusing. Therefore, such evidence is inadmissible under ER 403.
Washington courts have faced a similar issue in the past and decided as argued by the defense herein. State v. Baity dealt with the subject of DRE evidence. Just as with the SFSTs, the DRE protocol was developed and promoted in cooperation with NHTSA and the IACP. The court determined that under Frye such evidence may be admissible for the limited purpose of demonstrating that a suspect's behavior and physical attributes are or are not consistent with the physical signs associated with the presence of certain drugs. Id. at 17. It is important to note that the admissibility of such evidence was made permissive, not mandatory, and still subject to the other relevant rules of evidence. Most important for the issue at hand, the court made clear that such evidence may not be used to predict the specific level of drugs present in a suspect. Id.
The primary distinction between the question considered in Baity and the case at bar is that the defendant in Baity was challenging the DRE protocol under the Frye standard and as being unreliable. Ms. XXXXX is not challenging the SFSTs based on either of these theories. She is not claiming that the SFSTs fail, or even need, to pass the Frye test. Nor is she insinuating that they are unreliable. In point of fact, she is not challenging them at all.
Ms. XXXXX is simply asking the court to recognize what NHTSA has identified as the inherent limitations of the SFSTs. She is not asking the court to substitute its judgment for that of the federal agency that developed these tests. Moreover, she is certainly not asking the court to evaluate any scientific facts or theory. To the contrary, she is simply asking the court to restrict the use of the SFSTs to those areas NHTSA has determined that they apply. It is the City which seeks to have the court substitute its judgment for that of NHTSA and allow an overly broad and misguided application of scientifically developed SFSTs.
Baity erected the same type of boundaries Ms. XXXXX seeks here with respect to DRE evidence. Thus, according to the rationale offered by the court in Baity, which is nearly analogous to that argued herein by Ms. XXXXX, evidence concerning a particular BAC level based upon performance of SFSTs is inadmissible.
To clarify this point one more time, none of what has been presented is meant to challenge the accuracy or reliably of the SFSTs as a technology. It simply spells out the limitations inherent in there use, as all technologies possess, and explains what NHTSA has demonstrated to be their proper areas of application. Although sensitive, the tests are unable to determine BAC with a reasonable degree of certainty allowing for the determination of guilt beyond a reasonable doubt. As explained by SFST researchers:
On the question of adjudication of a DWI based solely on a failed SFST. It should be remembered that the intended purpose of the SFST battery is to establish a probable cause for measuring the actual breath or blood alcohol concentration. If an individual refuses the administration of a chemical test, the SFST or a FST cannot be used to establish beyond a reasonable doubt that the actual BAC was in fact equal to or above the legal designation for DWI.
As a result, we have returned to the point from which we started. Even when performed according to NHTSA standards, the SFSTs are incapable of demonstrating that a person's ability to handle a motor vehicle has actually been lessened by any appreciable degree due to alcohol. Further, any ability they have to demonstrate a particular BAC is sufficiently weak so that to introduce them for the purpose of demonstrating such a BAC would be so misleading and confusing as to substantially outweigh any probativity they may have. Thus the SFSTs may not be admitted for this purpose. As a consequence then, we are once again left with the situation that there is no way to establish that an individual's performance on SFSTs has any relationship to the question of whether his ability to handle a motor vehicle has actually been lessened by any appreciable degree due to alcohol. As such, they are completely irrelevant.
E. SFSTs as Evidence of Consumption of Alcohol - Evidence concerning Ms. XXXXX's performance on SFSTs as a an indicator of consumption of alcohol would be unfairly prejudicial, misleading, confusing and cause undue delay and waste of time in the case at bar and thus are inadmissible under ER 403.The City may next argue that based on Baity SFST evidence should be admitted in this case for the limited purpose of demonstrating that Ms. XXXXX's behavior and physical attributes were consistent with the physical signs associated with the presence of alcohol. They may be correct that evidence concerning the SFSTs is admissible on this basis, subject to the limitations set out in Baity, but on the facts of this case ER 403 still militates against admitting the SFST evidence. The primary circumstance underlying this is that Ms. XXXXX is stipulating that on the evening in question she did have alcohol in her system. As a result, the presentation of evidence concerning SFSTs is not only prejudicial, but cumulative and will constitute an undue waste of time.
We begin this analysis by recognizing that ER 401 and 403 are identical to their federal counterparts. See e.g., Comments to ER 401 and 403; State v. Stevenson, 16 Wn.App. 341, 555 P.2d 1004 (1976).
The general rule is that "a defendant's Rule 403 objection offering to concede a point generally cannot prevail over the Government's choice to offer evidence showing guilt and all the circumstances surrounding the offense." State v. Johnson, 90 Wn.App. 54, 62, 950 P.2d 981 (1998) (citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997)). Nonetheless, "situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent." Comment to FRE 401; Old Chief at 179. Such determinations should be made "on the basis of such considerations as waste of time and undue prejudice" as well as whether the evidence will be cumulative. Comment to FRE 401; Old Chief at 179. "The availability of other means of proof may also be an appropriate factor. ER 403; Johnson at 62. Thus, the "circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme." FRE 403;
"Exclusion for risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time, all find ample support in the authorities. 'Unfair prejudice' within its context means an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." FRE 403. It "occurs whenever the probative value [of evidence] is negligible, but the risk that a decision will be made on an improper basis is great. Rivera at 139.
In the case at hand, allowing testimony concerning the SFSTs for the limited purpose of demonstrating the presence of alcohol in Ms. XXXXX's system at the time relevant to this case is unfairly prejudicial. This is so because the presentation of such evidence necessarily possesses and undue tendency to suggest a decision on an improper basis. The improper basis here is that evidence concerning the SFSTs unavoidably invites the fact finder to conclude that Ms. XXXXX's ability to drive was impaired based solely on her performance of the SFSTs. As elucidated above, the SFSTs are incapable of conveying any such thing. Admitting the evidence in this manner simply allows the City to present the SFSTs as indications of impairment through the back door and under an assumed name. Their affect is no different, and no less misleading, than if they were offered as direct evidence of impairment.
Second, presentation of this evidence will necessarily create great delay and waste of time. This follows from the necessity for expert testimony of both great depth and breadth concerning the SFSTs so that Ms. XXXXX can mount a proper defense and insure that the jury has a proper understanding of them. That such waste and delay is undue is demonstrated by the fact that the City has available to it alternative means of proving what this evidence would be meant to establish, namely Ms. XXXXX's stipulation to having alcohol in her system at the time. Not only will this significantly reduce delay and waste but, assuming all the SFSTs are meant to do is demonstrate the consumption of alcohol, it will not hamper the States narrative of events.
As a result, even if the SFSTs are offered for the sole purpose of establishing that Ms. XXXXX had alcohol in her system at the time she was driving when stopped by Officer Judd, they are still inadmissible under ER 403.
F. Improper Administration of SFSTs and Use of Unvalidated Field Test - The SFSTs administered to Ms. XXXXX were not administered in compliance with NHTSA standards and a fourth test has never been validated at all so that evidence concerning any of them would be irrelevant, unfairly prejudicial, misleading, confusing and cause undue delay and waste of time in the case at bar and thus are inadmissible under ER 104, 105, 401, 402 and 403. "To be genuinely useful, roadside tests must be valid and reliable; i.e., they must measure changes in performance associated with alcohol and they must do it consistently" "The validity of the SFSTs hinges on standardized administration and scoring. To the extent that officers' instructions and demonstrations, or their interpretations of observations, differ from those established by research, it diminishes the meaning which can be attached to drivers' test performance." Further, unvalidated tests are of unknown merit.
These facts are amply supported by the data from the validation studies. Remember that in the initial study one of the primary causes of false arrest decisions by officers was "failure by the officer to heed the lack of test evidence for intoxication" in interpreting an individuals performance on the SFSTs. This continued to be a factor during the subsequent 20 years of studies. For example, in the 1998 study, 29% of the false arrest decision occurred because "officers apparently did not follow the test interpretation guidelines" which actually indicated that a person was under the legal limit. Thus, when officers fail to adhere to the standardized procedures developed by NHTSA, the risk of an erroneous determination by those officers, and of false arrest, rises dramatically.
Given these facts, the NHTSA SFST training manual states in bold capitalized print:
IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:
" THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER
" THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECTS PERFORMANCE
" THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE.
IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.
Now, this doesn't mean that the SFSTs must be performed perfectly in order to be valid. Such a contention would be absurd. Minor variations are not only acceptable but expected and concern only the weight to be given to SFST performance evidence, not its admissibility. On the other hand, it does require at a minimum that the officers know the correct NHTSA procedures and attempt to administer the SFSTs according to them.
If an officer either does not know the correct NHTSA procedures or fails to at least attempt to administer the SFSTs according to them, the entire foundation upon which their validity and reliability is based vanishes. When done in this manner they are of completely unknown merit. Not only are they useless for the purpose of determining probable cause based upon an estimated BAC, but there is absolutely no support for any contention that performance on them is in anyway connected to driving impairment. As such, evidence concerning the performance of SFSTs under these circumstances would be irrelevant, misleading and confusing under ER 104, 105, 401, 402 and 403 and would therefore be inadmissible for the purpose of demonstrating impairment of a motorist's ability to drive.
In the case at bar, officer Judd explained that not only had he been trained according to NHTSA standards but that he understood that these standards were to be adhered to in the administration and scoring of Ms. XXXXX's performance on the SFSTs. Nonetheless, his testimony reveals that not only did he not know the correct NHTSA procedures but as a result he failed to administer and score the SFSTs according to them.
Beginning with the administration of HGN, the NHTSA training manual indicates that when testing for smooth pursuit in an individual's ocular tracking ability, the stimulus used should be moved at a rate taking "approximately two seconds out and two seconds back for each eye." The NHTSA instructor manual states that one of the mistakes that must be noted and corrected occurs when an officer moves the stimulus too quickly. This is critical because loss of smooth pursuit in ocular tracking is normal if a stimulus is moved too quickly.
In the case at bar, Officer Judd was asked whether there are any NHTSA requirements concerning the speed at which he moved the stimulus while testing for smooth pursuit. His response was "Not that I know of." Thus, Officer Judd was completely unaware of this standard despite its critical importance to the correct administration and scoring of this portion of the HGN test. Thus, all information gained concerning smooth pursuit is useless.
Next we consider the test for distinct nystagmus at maximum deviation. The NHTSA training manual indicates that once a motorist's gaze has been drawn out to it maximum deviation, the officer must "[H]old the eye at that position for a minimum of four seconds, and observe the eye for distinct and sustained nystagmus." The NHTSA instructor's manual directs instructors to "Point out that four (4) seconds is a relatively long period of time. You cannot simply hold the eye to the side for an instant, and expect to observe distinct jerking."
Holding the eye at this position for a minimum of four seconds is critical. NHTSA explains the reason why as follows:
"some people will exhibit a slight eye tremor when the eye moves to maximum deviation. This tremor is due mostly to eye strain rather than to any type of alcohol impairment or medical condition. When the HGN test is administered properly, a law enforcement officer cannot confuse this eye tremor with HGN due to alcohol impairment for several reasons. First, the eye tremor lasts only briefly and law enforcement officers are taught to hold the eye at maximum deviation for at least four seconds to ensure that the jerking is sustained…"
Thus, if the stimulus is moved out to maximum deviation and held there for less than 4 seconds, not only should an officer not be surprised to see nystagmus, but the nystagmus he sees is a completely natural physiological response to the test having nothing to do with alcohol. Only nystagmus which persists beyond the 4 second limit can be correlated to the presence of alcohol.
At the May 10th hearing, Officer Judd was specifically asked how long he holds the stimulus at the point of maximum deviation. His reply was "A second." Thus, Officer Judd seemed to be completely unaware of this standard despite its critical importance to the correct administration and scoring of this portion of the HGN test. As he was unaware of this standard, he failed to follow the standardized procedures and thus, all information gained concerning nystagmus at maximum deviation is useless.
Moving on to consideration of onset of nystagmus prior to 45º, the training manual once again states that the officer should move the stimulus "at a speed that would take approximately four seconds to reach the edge of the suspects shoulder." Once again the trainer's manual notes that one of the mistakes that must be noted and corrected occurs when an officer moves the stimulus too quickly. And once again this is critical because loss of smooth pursuit in ocular tracking is normal if a stimulus is moved too quickly.
Once again, in the case at bar, Officer Judd was asked whether there are any NHTSA requirements concerning the speed at which he moved the stimulus while testing for the onset of nystagmus. And once again his response was "Not that I know of." Thus, Officer Judd was completely unaware of this standard as well despite its critical importance to the correct administration and scoring of this portion of the HGN test. Thus, all information gained concerning the onset of nystagmus is useless.
With respect to the one leg stand (OLS), the training manual requires the following. First, only if an individual "moves arms 6 or more inches from the side of the body in order to keep balance" is it to be counted as a clue. The need for this constraint is demonstrated by the fact that raising of one's arms for balance during the OLS was observed in both alcohol free and intoxicated individuals during the validation studies but was simply more pronounced in the latter group. Thus, if an individual raises his arms for balance during the test, not only should an officer not be surprised or concerned, but he should expect to see it as a common behavior by all individuals whether intoxicated or not. Only when the arms are raised uncommonly high, determined by NHTSA to be 6 inches from the body, can this be correlated to the presence of alcohol.
Second, the training manual instructs the officer that he is supposed to "Observe the suspect from a safe distance and remain as motionless as possible during the test so as not to interfere" with its performance. The 1981 study supports this requirement stating that:
Two other important variables [decreasing the sensitivity of the test] are that: (1) the suspect must be able to see in order to orient himself or herself; and (2) the police officer must stand back from the suspect in order not to provide an artificial reference frame which could distract the suspect. Generally, if the stoped cannot see or orient with respect to a perpendicular frame of reference, then this test will be difficult to perform even if sober.
Once again revisiting the May hearing, Officer Judd was asked when Ms. XXXXX's use of her arms to balance herself during the OLS was deemed as a NHTSA cue. He replied that it constitutes such if the arms come out from the sides at all, not only if six or more inches as required by NHTSA. Further, while noting this as a clue on Ms. XXXXX's performance, he made no indication of how far away from her body Ms. XXXXX's arms actually came. Further, when asked where he positions himself during the performance of the one leg stand he indicated that there was no place where he stands but that he may move around during the course of his observations.
Thus, Officer Judd seemed to be completely unaware of the requirements concerning an individual's use of their arms for balance or that he remain as motionless as possible during the performance of the test despite their critical importance to the correct administration and scoring of the OLS. As he was unaware of this standard, he failed to follow the standardized procedures and thus, all information gained from this test is useless.
Officer Judd's actions were not merely minor deviations from the prescribed methods for administering the SFSTs whose weight could be challenged at trial. Examples of such might include the efficacy of attempts to remain still and out of the way during the OLS, imprecision involved in estimating 4 seconds for the purpose of HGN at maximum deviation or even the uncertainty involved in estimating whether an individuals arms have actually come at least 6-inches away from their side during the OLS. All of these would be examples of an officer knowing the correct NHTSA procedures and attempting to administer the SFSTs according to them. As the court in Baity noted, these challenges boil down to basically the risk of false positives based upon necessarily less than ideal conditions in the field and do not undercut the validity of the SFSTs themselves but instead concern the weight to be given to them in varying circumstances.
In the case at bar, Officer Judd did not even know the correct NHTSA procedures despite the fact that he admitted being trained in them and knowing the purpose of their standardization. Since he did not know the correct procedures it was impossible for him to attempt to administer the SFSTs according to them. As indicated earlier, however, the validity of any test ultimately depends on the officer's skill in administering and scoring it. As a result, Officer Judd cannot even be said to have administered the NHTSA SFSTs. The tests he administered are of completely unknown merit because, despite his training to the contrary, he failed to observe simple procedures critical to their validity.
In the case at bar then, not only is any evidence concerning Officer Judd's administration of the SFSTs to Ms. XXXXX useless for the purpose of determining probable cause based upon an estimated BAC, but there is absolutely no support for any contention that Ms. XXXXX's performance on them is in anyway connected to driving impairment. As such they are irrelevant and inadmissible under ER 402. Given that these are the only reasons for the introduction of such evidence and the great weight it is recognized that juries afford it, it would also be undeniably misleading and confusing under ER 104, 105, 402 and 403. Further, the introduction of such evidence is again likely to cause undue delay and waste of time because expert testimony will be required to explain to the jurors that they are completely invalid administered in the manner that they were. These arguments apply with even greater force to the balance test Officer Judd testified to which has never been validated in any manner, either singly or part of a larger testing protocol.
For all of these reasons, any evidence concerning Ms XXXXX's performance on the SFSTs is inadmissible for the purpose of demonstrating impairment of her ability to drive on the evening in question.
G. Evidence of SFST Performance as Observations Understandable and Interpretable by Lay Jurors - Officer Judd's observations of Ms. XXXXX's performance on the SFSTs are not of the type understood and interpretable by lay jurors and are irrelevant, unfairly prejudicial, misleading, confusing and cause undue delay and waste of time in the case at bar and thus are inadmissible under ER 104, 105, 401, 402 and 403. The City may next argue that evidence of Ms. XXXXX's performance on the SFSTs ought to be admitted as simple objective observations made by Officer Judd which are easily understood by the jury. Ms. XXXXX acknowledges the fact that courts have regularly admitted the agility and balance test portions of the SFSTs as such. See e.g., City of Seattle v. Heatley, 123 Wn.2d 1011, 869 P.2d 1085 (1994). Washington courts have made it clear, however, that the HGN test is scientific in nature and therefore subject to the constraints of ER 702 and 703. Baity at 18. As such it is not a simple objective observation easily interpreted by a lay jury and not rescued by the City's argument here. Thus, we can focus on the agility and balance test portions of the SFSTs with respect to this argument.
The City's argument succeeds where an officer's observations concern the general nature of an individual's appearance, demeanor and physical mannerisms. Examples of such include an apparent lack of balance when walking, swaying or appearing unsteady on ones feet. These are certainly behaviors most individuals are familiar with and can easily relate to their own experiences under normal conditions. This position is commonly taken by courts and not disputed by Ms. XXXXX.
Ms. XXXXX argues that where the City's argument must fail is when the officer's testimony does not involve such common observations, but instead subtle observations of what would otherwise be scientifically determined clues within the SFST battery. She understands it is common in the State of Washington for the results of field sobriety tests to be admitted as officer observations subject to the limitations of ER 701, 702 and 704. See e.g., Heatley supra. Nonetheless, she argues that the this practice is in conflict with facts well established by NHTSA and as such runs counter to reason and the uses approved by of this federal agency. As such, this policy must be corrected and in Ms. XXXXX's case the evidence in question should be suppressed.
Testimony concerning performance on SFSTs or other unvalidated field tests do not involve observations easily understood by a jury, but instead is evidence consisting of what would otherwise be scientifically determined clues within the SFST battery. For example, for the walk and turn test such cues may include whether an individuals foot separation was greater than half an inch, whether the individual raised his arms for balance more than six inches from his side but not any less and whether the individual stopped at any point during the test to be distinguished from "merely walking slowly." For the one leg stand they may include whether the individual raised his arms for balance more than six inches from his side but not any less and whether he was able to stand on one leg for 30 as opposed to 25 seconds. For this last indicator, the SFST training manual explicitly states that "Original research has shown a person with a BAC above .10 can maintain balance for up to 25 seconds, but seldom as long as 30."
The first thing that must be asked is how often has an ordinary individual seen anybody perform these exercises, sober or otherwise? The only honest answer is seldom to never. As a result, how is an individual supposed to know to distinguish between the meanings of an individual raising his arms from his side for balance at least six inches but not less? How about the meaning of an individual having a gap between his feet during the walk and turn of just under half an inch but not greater? What about being able to balance on one leg for more than 25 but not 30 seconds? It simply defies reason that a lay individual will be able to make the subtle and precise distinctions that research in this area has shown is necessary to arrive at a truthful conclusion.
All of these things may cause an individual to determine that a defendant is impaired despite the fact that none of them have ever been shown to indicate this even with decades of research devoted to them. In fact, neither raising one's arms for balance less than 6 inches, dropping his leg at the 30 second mark, whether told to or not, nor failing to touch heel to toe by less than half an inch is even a miscue under the SFST battery. True, we are supposed to be depending on individuals lay experiences to judge these things so that NHTSA validation studies would be irrelevant. The problem with this is that: (1) These are not actions most individuals have any experience observing; and (2) The only reason we're looking at these tests and that the officers are tuned into and testifying to the facts they are is because of what they have been taught to look for in the academy according to NHTSA standards.
As a result, even the officer isn't testifying to a lay observation based on his own experience. He is testifying about procedures which have been scientifically developed for a particular purpose and clues he was taught to look for due to NHTSA studies. To call them anything else is simply intellectually dishonest. How can it reasonably be claimed that a lay jury could possibly interpret the meaning of these behaviors?
Even if there were jurors who believed that they could interpret these actions based on their personal experiences and determine whether an individual was impaired as a result of them, the federal agency responsible for highway safety has studied this question and indicated that they are wrong. Remember, the Department of Transportation found the 3-test battery to be a poor tool in assessing driver impairment. After two decades of research NHTSA itself frankly admitted that it was unlikely that complex human performance, such as required to safely drive an automobile, could be measured by these activities. Thus, lay observations or not, it has been scientifically established that such observation are not useful for the purpose being offered. Any belief to the contrary is simply the unsupported bias of the individual possessing it.
Keeping in mind the great weight it is recognized that juries afford such evidence, just as when these observations were offered as part of the recognized SFST battery, they are irrelevant, misleading, confusing, unfairly prejudicial and likely to cause undue delay and waste of time because again expert testimony will be required to explain to the jurors that even these "simple" observations have been shown not to be a valid indicators of impairment. As such, testimony presenting these as simple objective observations made by the officer which are easily understood by the jury is not true and must be suppressed under the facts of this case.
4. If Evidence of Ms. XXXXX's Performance Of SFSTs, Or Any Other Field Sobriety Test, Is Not Deemed Inadmissible Based On The Above Arguments, Any Testimony Concerning Them Is Inadmissible Under ER 701, 702 and 704.
A. ER 701, 702 and 704 Generally - "Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." ER 704. The introduction of evidence under this rule, however, "is subject to the restrictions of rules 701 and 702, which require opinions to be helpful to the trier of fact, and rule 403, which authorizes the exclusion of time-wasting evidence." Comment to ER 704; See also, Heatly at 579.
Under ER 701, when not testifying as an expert, a witness may give "testimony in the form of opinions or inferences" only where they are "rationally based on the perception of the witness and…helpful to a clear understanding of the witness testimony or the determination of a fact in issue." ER 701. "The emphasis belongs on what the witness knows." Comment to ER 701. Under this provision, a "lay witness may give an opinion, so long as it is rationally based on her perceptions and helpful to the jury. A proper lay opinion would include the speed of a vehicle, the mental responsibility or health of another, the value of one's own property and identification of a person." State v. Kinard, 39 Wn.App. 871, 874, 696 P.2d 603 (1985) review denied 103 Wn.2d 1041 (1985).
Where the opinion relates to a core element that the State must prove, there must be a substantial factual basis supporting the opinion. Courts also consider whether there is a rational alternative answer to the question addressed by the witness's opinion. In that circumstance, a lay opinion poses an even greater potential for prejudice.
State v. Farr-Lenzini, 93 Wn.App. 453, 463, 970 P.2d 313 (1999).
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." ER 702. "The term 'scientific' implies a grounding in the methods and procedures of science, and "knowledge" connotes more than a subjective belief or unsupported speculation." Reese v. Stroh, 74 Wn.App. 550, 560, 874 P.2d 200 (1994) affirmed 128 Wn.2d 300 (1995). The admissibility of this testimony requires a case by case inquiry. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004).
Admissibility of expert testimony depends on whether "(1) the witness qualifies as an expert, (2) the opinion is based upon an explanatory theory generally accepted in the scientific community, and (3) the expert testimony would be helpful to the trier of fact." Willis at 262. (quoting State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990)). Whether such testimony will be helpful to the trier of face "requires the trial court to assess 'whether the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue.'" Reese at 560 [Emphasis added].
B. Expert Testimony Concerning Field Sobriety Tests - Expert testimony concerning Ms. XXXXX's performance of the SFST's and the balance test administered by Officer Judd are inadmissible under ER 702. As shown above, the SFSTs are accepted as being scientific in nature. Further, this analysis demonstrates that the SFST battery is analogous to the DRE protocol analyzed in Baity with respect to its development, use and adherence to strict scientifically developed standards and methods. Even if the scientific nature of these tests is not recognized by this court, however, it cannot be denied that their administration, scoring and interpretation are based upon specialized knowledge. As such, any testimony concerning the administration, scoring or interpretation of the SFSTs qualifies as expert testimony and must satisfy the dictates of ER 702. State v. Kunze, 97 Wn.App. 832, 850, 988 P.2d 977 (1999).
If an officer is to testify as an expert concerning his opinion of an individual's impairment based in any part on performance of the SFSTs, or any other field sobriety test, he must first satisfy the requirements of ER 702. Heatly at 579. To do so, a proper foundation for this testimony must first be laid and it must be demonstrated that such testimony will be helpful to the trier of fact. Id.; See also Baity at 18.
In the context of the case at bar, for evidence to be helpful to the trier of fact it must relate to whether Ms. XXXXX's ability to drive was impaired to any appreciable degree on the evening in question. Thus, if Officer Judd is offered as an expert to testify concerning Ms. XXXXX's performance of the SFSTs, it must first be demonstrated that the reasoning or methodology of the SFST protocols properly can be applied to the question of impairment of Ms. XXXXX's ability to drive. As demonstrated above, however, the SFSTs were not designed to, nor can they, measure impairment or allow for the predication of a particular BAC. They are meant primarily as a tool for the determination of probable cause. The reasoning and methodology of the SFSTs therefore is inapplicable to the question of the impairment of Ms. XXXXX's ability to drive and therefore all expert testimony concerning them is inadmissible under ER 702.
Further, even if the SFSTs did lend themselves to such considerations, the establishment of an appropriate foundation for testimony concerning them requires "a showing that the test was properly administered." Cf. Baity at 18. As demonstrated above, Officer Judd's administration of the SFSTs violated critical components of his training and the NHTSA requirements. As a result, once again all expert testimony concerning Ms. XXXXX's performance on the SFSTs is inadmissible under ER 702.
Finally, even if the Court finds the preceding unconvincing, the City must still demonstrate that Officer Judd is in fact an expert. It is well established that "Practical experience may be sufficient to qualify a witness as an expert." Baity at 18 [Emphasis added]. Ms. Mouldden will grant that Officer Judd has been trained to administer the SFSTs in a NHTSA approved curriculum. She will also grant that he does have some modicum of experience in the field. Where he falls short of being an expert is in the failure of either his training or experience to instill within him the requisite knowledge of critical aspects of the NHTSA SFST protocol. Thus, while practical experience may be sufficient to qualify a witness as an expert, in the case at bar it doesn't do so for Officer Judd.
As for the balance test administered by Officer Judd, it is not part of the SFST battery. According to the NHTSA research, such "tests" are of unknown merit. "Where there is no basis for the expert opinion other than theoretical speculation, the expert testimony should be excluded." Queen City Farms, Inc. v. Central Nat. Ins. Co. of Omaha, 126 Wn.2d 50, 103, 882 P.2d 703 (1994). This applies particularly where, as here, the officer is identifying certain specific "clues" that he depends on in making his determination. These are not based upon any explanatory theory generally accepted in any scientific community. This is an unvalidated test of unknown merit and whether or not the clues used are predictive of anything is pure conjecture. Thus, any expert testimony concerning Ms. XXXXX's performance on this test is inadmissible.
Even if such testimony is allowed, its use must be strictly limited. As the court in Baity noted:
an officer may not testify in a fashion that casts an aura of scientific certainty to the testimony. The officer also may not predict the specific level of drugs present in a suspect. The DRE officer, properly qualified, may express an opinion that a suspect's behavior and physical attributes are or are not consistent with the behavioral and physical signs associated with certain categories of drugs.
Baity at 18. These same limits should apply to Officer Judd's testimony concerning Ms. XXXXX's performance on the SFSTs if this court finds it admissible.
C. Non-Expert Testimony Concerning Field Sobriety Tests - Non-Expert testimony concerning Ms. XXXXX's performance of the SFST's and the balance test administered by Officer Judd are inadmissible under ER 701. A lay person may give an opinion on intoxication since the "effects of alcohol 'are commonly known and all persons can be presumed to draw reasonable inferences therefrom.'" Heatly at 580 (quoting State v. Smissaert, 41 Wn.App. 813, 815, 706 P.2d 647 (1985)). What that opinion would be based upon, however, is far removed from the standardized administrative, scoring and interpretive procedures applied in the case of SFSTs. It is also certainly far removed from an opinion based upon the unvalidated balance test employed in this case with its criteria of administration and scoring which are of unknown merit.
This is so because the administration, scoring and interpretation of the SFSTs, and even the unvalidated field test, is necessarily based upon specialized knowledge. As such, it must be testified to by an expert if it is to be introduced. Kunze at 850. The very idea of allowing non-expert testimony concerning the administration, scoring and interpretation of the SFSTs runs counter to ER 701. Such testimony is clearly inadmissible.
Even if Officer Judd's opinions and conclusions regarding Ms. XXXXX's performance on the SFSTs and the balance test is to be characterized as non-expert, his "opinion is admissible only if it has a rational basis, which is the same as to say that the opinion must be based on knowledge." Kunze at 850. This does not mean knowledge of what he observed, but knowledge upon which he can base an opinion that performance on the SFSTs is an indication of impairment. Unless he knows more than the researchers at NHTSA who have studied and developed the SFSTs over the last two and a half decades, however, he cannot possibly posses such knowledge. As detailed above, these studies have conclusively determined that performance on these tests is not a measure of driving impairment. Therefore, the requisite foundation for any such testimony is nonexistent and as a result the testimony is inadmissible.
Further, if the officer does not possess the specialized knowledge needed to testify as an expert concerning these tests, how can he possibly be qualified to administer, score and interpret them? Administering these tests according to standards necessarily demands the same quantum of knowledge entailed in testifying about them. If he can't do the one, then he is not qualified to do the other and thus the necessary foundation for even a lay opinion is absent. Thus again the conclusion that any non-expert testimony offered by Officer Judd concerning the administration, scoring or interpretation of the SFSTs and the balance test performed by Ms. XXXXX is inadmissible.
Lastly, even if the court were to determine that testimony concerning the SFSTs and the balance test performed by Ms. XXXXX is admissible as non-expert testimony, its use must be strictly limited. Since in this guise the testimony is not even being offered as a scientifically developed protocol, the restrictions must be at least as tight as those placed on testimony concerning the DRE protocol which was recognized as having scientific validity. Thus Officer Judd must be precluded from testifying in a fashion that casts an aura of scientific certainty to his testimony. Cf. Baity at 17. Further, he also may not predict the specific level of alcohol present in Ms. XXXXX's system. Id. He may only express an opinion that a suspect's behavior and physical attributes are or are not consistent with the behavioral and physical signs associated with alcohol. Id.
In determining the boundaries, the court must pay special attention to the recognized fact that juries give an enormous amount of weight to these tests. This fact makes insuring Officer Judd is precluded from testifying in a fashion that casts an aura of scientific certainty to his testimony critical. While this issue has not come before a Washington court, the United States District Court for the District of Maryland has directly addressed it. In doing so it stated:
If offered as circumstantial evidence of alcohol intoxication or impairment, the probative value of the SFSTs derives from their basic nature as observations of human behavior, which is not scientific, technical or specialized knowledge. To interject into this essentially descriptive process technical terminology regarding the number of "standardized clues" that should be looked for or opinions of the officer that the subject "failed" the "test," especially when such testimony cannot be shown to have resulted from reliable methodology, unfairly cloaks it with unearned credibility. Any probative value these terms may have is substantially outweighed by the danger of unfair prejudice resulting from words that imply reliability. I therefore hold that when testifying about the SFSTs a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as "test," "standardized clues," "pass" or "fail."
U.S. v. Horn, 185 F.Supp.2d 530 (2002).
Thus, if the court were to determine that testimony concerning the SFSTs and the balance test performed by Ms. XXXXX is admissible as non-expert testimony, all Officer Judd ought to be able to testify to is a simple narrative description of what his actual observations were. Any use of the phrases "test," "standardized clues," "pass," "fail" or any other terminology which would cast an aura of scientific certainty to his testimony must be precluded.
This same reasoning must apply to testimony concerning Officer Judd's training or background in field sobriety tests. The reason is that such testimony would cast the same aura of scientific certainty to his testimony that preclusion of the statements in the prior paragraph was meant to prevent.
CONCLUSION
Only evidence tending to establish that Ms. XXXXX's ability to drive was appreciably affected by alcohol on the evening in question is admissible or relevant. NHTSA based research and standards govern the administration, scoring and interpretation of the SFSTs in the context of the charges filed against Ms. XXXXX. Under this framework, evidence of Ms. XXXXX's performance of SFSTs is irrelevant, unfairly prejudicial, misleading, confusing and likely to cause undue delay and waste of time and thus is inadmissible under ER 104, 105, 401, 402 and 403. Further, if evidence of Ms. XXXXX's performance of SFSTs, or any other field sobriety test, is not deemed inadmissible based on the above arguments, any testimony concerning them is inadmissible under ER 701, 702 and 704. If, however, the court permits such testimony any use of the phrases "test," "standardized clues," "pass," "fail" or any other terminology which would cast an aura of scientific certainty to Officer Judd's testimony must be precluded.
RESPECTFULLY SUBMITTED this ___ day of ___________, 2004.
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XXXXX, WSBA #
Attorney for Defendant
