In Andrew Mishlove’s article in the Jan/Feb Edition of NACDL’s Champion Magazine, he explains the fundamentals of the National Highway Traffic and Safety Administration’s (NHTSA) Standardized Field Sobriety Evaluations (SFST) such as the Horizontal Gaze Nystagmus (HGN), Walk and Turn (W/T) and One Leg Stand (OLS) or as we like to say in Georgia “One-Legged Stand”). Mishlove’s conclusion is junk science both in reality and under the Federal Rules of Evidence 701 for lay opinion testimony and 702 under the Daubert Standard. It is important to note that Georgia Prosecutors were able to keep the Daubert Standard of evidence from being applied to criminal cases in Georgia and limited to civil cases during Tort Reform and the recent evidence code reconciliation with the Federal Rules.
First, let’s deal with scientific reality. Effectiveness in arresting drunks is meaningless without false arrests of those under the legal limit and the science is astounding. In the 1981 NHTSA study on SFST, 32% of drivers under the legal limit were arrested by Police based on positive SFST. Another private study found that under .13, the SFST was extremely unreliable. In the robustness study, the most “scientific” of the three SFST, the HGN, showed a false positive rate of 75% even when properly administered. Further, none of the NHTSA studies were peered review by other scientists for scientific reliability, and none of the NHTSA studies utilized methodology that would be considered necessary for a scientifically reliable study such as blind testing and control groups.
Second, let’s deal with the Daubert Standard for the reliability of science in courtrooms in all of the Federal Courts and most State Courts in the United States, excluding Georgia again. See the metaphorically ironic video of Georgia Law Enforcement Field Sobriety Training to the left and you will understand the hyperbole. One leading case on SFST in Federal Courts in United States v. Horne. The Horne opinion found that SFST is not scientific for purposes of the Daubert standard of scientific evidence in Federal Courts under Rule 702 and only allows testimony of field tests as lay opinion evidence under Rule 701 but severely limits the testimony. The Federal Court prohibited testimony of several clues, passing or failing the tests. The Horn case should be a playbook for DUI defense attorneys on how to beat the field tests.
The bottom line is that SFST is here to stay in Georgia. But a good working knowledge of the relevant studies and armed with our new evidence code especially Rule 703, we can slice and dice the State’s field evidence and their credibility in front of jurors and turn an unfair advantage for the State into a lethal weapon for the Defense.