Field Sobriety Testing

Introduction

In almost every DUI case, the prosecution will offer the results of what is referred to as "field sobriety tests". Courts vary as to the extent a police officer may testify as to the interpretation of those results, however, most courts will allow the officer to testify what he asked the DUI accused to do and what the accused actually did or did not do1. It is left up to the trier of fact as to whether or not the performance demonstrated that the accused was or was not under the influence of alcohol to the required degree. For purposes of this article, I have attempted to take four sources, combine them, and convey to the reader some practical uses of this information. The primary sources for this article are: 1) Sworn testimony of Marcelline Burns taken in State of Florida v. Meador, 826 So. Reporter 2d 8262. This was provided to me by my friend and attorney, Richard Essen and attorney, Carlos Canet. 2) An article written by Dr. Spurgeon Cole and Dr. Ronald Nowaczyk, both of Clemson University, Clemson, South Carolina3. The article appeared in The Champion, August, 1995 issue. 3) The National Highway Traffic Safety Administration (hereinafter referred to as NHTSA) Instructor's Manual on field sobriety testing4. 4) The NHTSA Student Manual on field sobriety testing5. It is my hope that this article will result in better education for the practitioner in this specific area of DUI defense, hence, more self-confidence in cross-examination of the witnesses offering this type of testimony, especially in the area of the interpretation of the "results" of the roadside maneuvers.

The 1977 NHTSA Study

The National Highway Traffic Safety Administration (NHTSA) is a branch of the Department of Transportation (DOT) and in the mid-1970's, NHTSA requested proposals to conduct research on identifying the best "field sobriety tests" that an officer could use at roadside. Marcelline Burns, a research psychologist and the director of the Southern California Research Institute and her group created a technical and cost proposal, submitted it, and the Southern California Research Institute (SCRI) was awarded a contract by NHTSA to do the research. The first study was reported in 19776. The cost of the study was between one hundred and two hundred thousand dollars. The work by Burns on the 1977 study began in 1975 wherein she, after a literature search of related material, participated in ride-a-longs with police officers all over the United States and developed a list of 15 or 16 tests thought to be feasible as potential "sobriety" tests. Using those tests, SCRI conducted some pilot tests with a small group of people, and selected six tests for the 1977 study. This involved 238 drinking subjects and ten police officers and lasted about one year. The 1977 SCRI study, funded through NHTSA, resulted in the recommendation of the use of three of the six tests, namely, the walk and turn, the one legged stand and the horizontal gaze nystagmus (referred to as "alcohol gaze nystagmus" in the 1981 final report). The other tests used in the study were the finger to nose, the finger count, and the tracing test. The Romberg Alphabet test and subtraction tests were interchangeably used. The individuals selected as subjects for the research were licensed drivers and alcohol consumers. They were instructed not to eat for four hours. They were given measured doses of alcohol, however, the subjects themselves did not know the amount of alcohol they consumed. Their breath alcohol concentration was determined and then they were subjected to the six tests listed above. It also should be noted that all of the testing was done in the laboratory setting.

It is interesting to note that, according to Burns and the 1977 study, the Romberg test and the finger to nose test merely reflected the presence of alcohol, but "did not increase the predictive ability of testing."7 In other words, the finger to nose and Romberg test did not add anything to the predictability of subject's influence by alcohol. It is also interesting to note that the finger count, finger to nose, Romberg Alphabet, and tracing tests were not recommended for use as sobriety tests. Although used and were a part of the 1977 NHTSA study, none were selected as being indicators of anything, let alone as indicators of intoxication8. Some interesting statistics came out of the 1977 study. Of primary significance was the error rate of the 10 officers involved in the study. Their error rate was an astounding 47 percent. That is to say, in the 1977 study the officers made the decision to arrest a total of 101 people. Of those people "arrested", 47 percent had a BAC under 0.10 percent. This was totally unacceptable, even according to the author(s) of the study9. Burns, in her sworn testimony taken December 9, 1994, tried to attribute the large error rate to the inexperience of the officers used in the study. If this were true, it would seem unexplainable that they would again use inexperienced officers in the 1981 NHTSA study10. It is of primary significance to note that approximately 80% of the subjects used in the 1977 study were in their twenties and about two thirds of them were male. These statistics would seemingly make any test interpretation extremely questionable done on individuals that are not male and in their twenties.

The 1981 Study

The 1977 study recommended further review and NHTSA awarded the Southern California Research Institute a second contract asking for retesting and standardization. The organizers set out to maximize the sensitivity of the procedures employed. This second study resulted in the 1981 NHTSA report11. The 1981 study basically repeated the procedure of the 1977 study, except this time they used only the three test battery. The three test battery consisted of the walk and turn, the one leg stand and the horizontal gaze nystagmus tests. The 1981 study, like the 1977 study, was done only in a laboratory setting. Burns states that the officers again made their decisions to arrest or not to arrest on the prediction that the subject's BAC was over or under a 0.10 percent. There were 296 subjects in the 1981 study.

Some "divided attention" components were added in midstream during the 1981 study. For example, Burns describes a divided attention component of the walk and turn test as the portion of the test wherein the subject is requested to stand with one foot in front of the other on the line, while listening to the instructions. This is also referred to as the "instructional phase".

The standardization aspect of the 1981 study was to establish consistency in the administration guidelines, the instructions, the demonstrations, and the scoring. This was intended such that if an officer in Florida does the three test battery and an officer in Oregon does it also, the two officers should reach the same conclusions. The order in which the tests were given was considered by Ms. Burns to be irrelevant(12).

In the 1981 study, out of 118 decisions by the officers to arrest, 32 percent of them were wrong. This is only slightly better than the 1977 study which had a 47 percent error rate of false arrests. Also, in the 1981 study, 18 percent of the subjects who had no alcohol in their system were misjudged by the officers to be impaired. Ms. Burns takes a rather twisted attempt at explaining this. She opines that the study was done "next to the drug capital of the world."(13) In other words, she hints that since none of these people were screened for drugs that they may have been impaired on substances other than alcohol. This simply is unsound logic. If one were to accept her logic, perhaps this could be grounds to invalidate the entire study, since none of the subjects, including those who had ingested alcohol, had been screened for drugs.

The officers in the 1981 project believed 31 percent of the people who were at a 0.05 BAC to be impaired. Using the twisted logic of Ms. Burns referred to above, one could speculate that since there were so many mistakes made, perhaps the officers themselves had been doing drugs. A more plausible explanation is that the officers opinion was "preset" once they thought they smelled the odor of an alcoholic beverage. It seems that the predisposition to arrest was indeed a factor considered to be relative by NHTSA. For example, in the 1983 field study,(14) the author, in discussing the lack of accuracy to be derived from a portion of that study, states that the fact that the nystagmus test was given first every time could have predisposed the officer to make an arrest.

"The results of the gaze nystagmus test were then known to the officer and may have had some subtle influence on his expectations and scoring of the next two tests."(15)

One of the most interesting statistics from the 1981 study as discussed by Cole and Nowaczyk(16), (The Champion, August 1995) is the "dosing differential" of the subjects tested. Most of the subjects (78 percent) were dosed with either high BAC (about 0.15) or low BAC (0.05 and below). These would be considered "gimmies," since it should, as a practical matter, be easy for the officers to score an individual as being above a 0.10 BAC when they are 0.15 BAC and above. The same would be true of someone 0.05 and below. NHTSA claims an overall accuracy rate of 0.80 when using the three-test battery, however, this overall accuracy rate of .80 is questionable when over two-thirds (78 percent) should be considered "gimmies" (either dosed high or low, hence the "dosing differential"). In other words, the data of the individuals dosed between 0.05 and 0.15 would undoubtedly have an accuracy rate of much less, however, that data is unavailable. Cole and Nowaczyk opine that one factor in determining the "improval" of the false arrest numbers (47 percent in 1977 down to 32 percent in 1981) could be due in part to the dosing differential. The number of subjects dosed in the mid-range (0.05 to 0.15) went down from 27 percent in the 1977 study to 22 percent in the 1981 study. In other words, only 22 percent of the subjects in the 1981 study were in the more difficult to determine range of between 0.05 to 0.15 BAC.

The 1981 study claims a "reliability study" as part of the research in 1981. Reliability basically refers to consistency, or the ability for one to get the same results each time. The reliability portion consisted of asking 100 of the subjects back for retesting two weeks after the original study. The "reliability factor" was a 0.77. This "reliability correlation coefficient" is based on a scale from almost zero to a 1.00. It is interesting to note that a correlation coefficient of 0.9 or above is expected for academic reading tests such as the SAT. This reliability coefficient (not a percentage, however, a 0.22 for example, is considered extremely unreliable and 0.99 would be considered extremely reliable) dropped to 0.57 when done by different officers. So, when different officers tested the same subjects at the same dose level, the reliability level was very pathetic, and far below scientific acceptability. Even Burns admits this is "marginally acceptable."(17) Dr. Spurgeon Cole, in referring to Anastasi(18), states that the scientific community expects reliability coefficients to be in the upper 0.80s or 0.90s for a test to be scientifically reliable. This statistic is quite significant and is one of the reasons that judges should not allow police officers to testify that the accused failed the particular test.

The age and gender of the subjects used in the 1981 project, as with the 1977 study, are of extreme significance when considering any interpretation of the results. In the 1981 study a whopping 80% of the subjects were between the ages of 21 and 34. Again, as with the 1977 study about two thirds of them were male. The use of predominately males in their twenties as subjects places questionable validity to statistical analysis to the population as a whole.

Misnomer

The phrase "field sobriety test" is a misnomer. The word "field" implies that the research concerning the "testing" was done in the "field", i.e. at roadside under "real" circumstances. There has been a very limited amount of documented research in the "field". The 1977 and 1981 NHTSA studies were done in the laboratory under controlled conditions except for a very small field study at the end of the 1981 study consisting of a sheriff's department keeping records of DUI arrests after having been trained in the three test battery. Even Burns states that the study was so small, that no conclusions may be drawn from it.19 There was a 1983 NHTSA "field" study, and the authors themselves caution the reader about conclusions that should be drawn therefrom.(20) For example, due to the fact that PBT's (preliminary breath tests) were used in the field studies, the results may be "skewed." In other words, the arrest decisions were not made solely on the three test battery. Preliminary breath tests were used to a very large extent in the 1983 field research. Also, the only data that was available was for individuals who were either arrested, or who had been given a preliminary breath test. So, to date, there is little significant data upon which one can legitimately claim interpretation from these maneuvers done in the "field". Burns' position is that the environment where the tests are given is unimportant.(21) This assertion by Burns is not well founded in theory, nor in practicality.

The word "sobriety" is defined as the absence of alcoholic intoxication (American Heritage Dictionary). It can hardly be argued that these maneuvers show the absence of alcohol intoxication, with a false arrest rate of 47 percent in 1977 and with 18 percent of alcohol-free subjects falsely arrested, and 31 percent of those under a 0.05 falsely arrested in the 1981 study. There is not enough data in the field to make the leap of faith that these are reliable indicators of sobriety or the lack thereof. The effect of the multitude of variables in the typical roadside encounter certainly were not present with the relaxed atmosphere in the laboratory.

"Test" is defined as, inter alia, "to compare with a standard". (Webster's Complete Reference Dictionary). There is no baseline by which to measure a given individual's performance on one of these maneuvers. One does not know, as a practical matter, how a given individual would perform one of these tasks on Sunday morning during church, with no alcohol whatsoever in their system, let alone in the dark night with police squad car lights setting the "mood." One does not know what a "perfect" score is for a particular individual at a point in time under the same or similar conditions. Certainly, Nadia Comaneci did not score a perfect 10 the first time she tried the uneven bars, and certainly it would not be fair to use a Nadia Comaneci standard on the uneven bars the first time one would ask Lucciano Pavarotti or Bob Hope to do the task. Nor is it fair to have a single set of scoring criteria for every living human being tested.

The NHTSA Student Manual

One of the most valuable tools for the DUI defense practitioner that has come about as a result of the NHTSA studies mentioned above, is the NHTSA Student Manual entitled DWI Detection and Standardized Field Sobriety Testing. This manual was reprinted in 1991 and can be obtained from the Transportation Safety Institute in Oklahoma City, Oklahoma by calling 405-954-3112 or by contacting the National Technical Information Service in Springfield, Virginia, or through Professional Reference Services at 612-349-6777. Every police officer who was trained by NHTSA guidelines will have been issued a student manual. The manual discusses the three test battery of the walk and turn, the one legged stand and the HGN tests. There are valuable gems to be found in section VIII of this student manual. Included within this section of the manual are the standardized elements of the walk and turn and the one leg stand. One could use this portion of the manual in the cross-examination of the NHTSA trained officer. For example, suppose the police officer fails to ask the defendant to look at his foot on the one leg stand test.22 The officer could then be asked if he or she agrees with his or her training wherein they were taught that. "If any one of the standardized test elements is changed, the validity of the test is compromised."

Also included in section VIII of the student manual are the test conditions necessary for proper administration. This is the section of the student manual used most often in the cross-examination of the arresting officer. In discussing the proper conditions for the one legged stand test, the NHTSA manual states:

Some people have difficulty with the one leg stand even when sober. The test criteria for the one leg stand is not necessarily valid for suspects 60 years of age and older, or 50 pounds or more overweight. Persons with injuries to their legs or inner ear disorders may have difficulty with the test. Individuals wearing heels more than two inches high should be given the opportunity to remove shoes. The one leg stand requires a "reasonably level and smooth surface. There should be adequate lighting for the suspect to have some visual frame of reference".(23)

It is interesting to note that the test conditions necessary, presumably without any further research by NHTSA, mysteriously changed between 1987 and 1991. For example, on the one leg stand, the requirement of a "hard, dry, level non-slipping surface" was changed from the 1987 NHTSA student manual to the 1991 NHTSA student manual. The 1992 student manual changed to a "reasonably level and smooth surface." In contrast, it is extremely strange that NHTSA not only did not change the test conditions for the walk and turn test from the 1987 manual to the 1991 version, but they kept the typographical error in as well! In both the 1987 version and the 1991 version, the requirement for the walk and turn is that it must be performed on a high, dry, level, non-slipping surface. The wording was kept the same for both the 1987 and the 1991 NHTSA student manual. Obviously the intent was for the word "high" to read "hard," however, the typo still exists in the 1992 manual.

The manual can also be used in the cross-examination of the arresting officer as it relates to the one leg stand and the walk and turn test insofar as the percentage of reliability given to the particular test by NHTSA. For example, on page VIII-21, one could ask the officer if one were to use solely the one leg stand test, we, in determining whether or not to convict the accused, would mis-classify about 35 percent of the people. That would mean that if we were to use that one test, we would convict 35 innocent people out of every 100 that were on trial. Certainly this would be more than tantamount to a reasonable doubt. For the walk and turn, we would convict 32 innocent people out of 100.(25)

The NHTSA Instructor's Manual

The next "level" of NHTSA manual for use by the DUI defense practitioner is the NHTSA F.S.T. instructors manual. Any law enforcement officer who "boasts" from the witness stand that he or she has been certified by NHTSA to teach the NHTSA field sobriety tests will possess the instructor's manual and is subject to be cross-examined therefrom. It is entitled "DWI Detection and Standardized Field Sobriety Testing...Instructors Manual." The cost is about $52.00 and can be ordered from the National Technical Information Service in Springfield, Virginia, or one may call 420-954-3112, or contact Professional Reference Services in Minneapolis, Minnesota at 612-349-6777. One can use this manual in cross-examination of the officer in various ways. For example, suppose you are defending an individual with breath alcohol readings of 0.17 percent. Suppose further that same individual looks and sounds very sober on video tape taken on the evening of the arrest.

One could ask the following questions of the officer:

Q: Mr. Smith's state of inebriation was not evident to you prior to giving the field sobriety tests, was it?

A: No.

Q: And isn't it true that a person's state of inebriation would be evident without testing if his true blood alcohol is over a .15 percent?

A: Not necessarily.

Q: Refer to page 17 of your NHTSA instructors manual. Is it not true that your manual states that if the blood alcohol content is above a .15 percent, the subject's state of inebriation usually will be evident without standardized sobriety testing?

A: That's what it says.

Q: So the fact that inebriation was not evident to you prior to giving your roadside maneuvers could be an indication that Mr. Smith's true BAC was not over .15 percent, isn't that correct?

A: I don't know.

(It should be noted that NHTSA, since the publishing of this article, has removed this portion of the instructor's manual, and it does not appear in the updated version of the manual).

Suppose the client cannot afford an expert and no other witness will be available to testify to predict BAC using the Widmark formula. Suppose the accused will testify that he had consumed five and one-half drinks in a two-hour period and further, the evidence was that he weighed 200 pounds. To some jurors, five and one-half drinks might seem like a lot of alcoholic beverage. One can refer the NHTSA-instructor-trained officer to page 18 of his or her manual and go to the chart that appears there, and ask the officer if the chart shows that an individual weighing 200 pounds consumed five and one-half drinks over a two-hour period, their "true" blood alcohol content would be between a 0.04 percent and a 0.06 percent, below the level of 0.08 percent!

The DUI defense practitioner is often faced with the situation wherein the accused has made several very minor mistakes on their performance of the roadside maneuvers. The manual discusses what it takes for the student of the NHTSA field sobriety course to pass a successful completion of the classroom training. The following paragraph is of interest:

"Experience suggests that the vast majority of students who have applied themselves diligently during the training will "pass" the proficiency examination on their first attempt. However, a few require additional practice before they can "pass". It is also recommended that students be given additional coaching to correct their errors of omission or commission, and be re-examined at a later date."(26)

One may then use a comparison of the standard used in grading the officer in his NHTSA training class versus the standard used by that same officer on the accused. Establish the fact that during his training to become certified in the standardized field sobriety testing course, the officer had to study over and over how to administer the maneuvers properly. Even then, the officer/student would have practiced the proper administration over and over and made mistakes from time to time. When they make mistakes, they are given the opportunity to be re-examined at a later date. This is totally different from the opportunities given to the accused in the field. Number one, he has never been able to practice the maneuvers and two, he was not given an opportunity to be re-examined either later at the station, or at any subsequent time or place. The manual states27 that students, in order to pass the course in proper administration of the tests, must make at least an 80 percent for successful completion of the classroom training. Certainly one could then analogize that the performance (correct) of the accused on his test he took at roadside done correctly was certainly a lot greater than 80 percent! Suppose, for example, the accused was asked to perform the walk and turn test and the officer testified he stepped off the line twice, did the turn improperly and was not heel to toe 3 times. That is a total of six mistakes. If one compares that 6 with the total amount of mistakes possible, one gets a percentage correct of greater than 80 percent. For example, 18 steps on the line, 18 counts out loud, 18 steps with arms side to side, 18 times to count sequentially correct, 18 times to walk heel to toe, 4 things to do right on turn (pivot on one foot and take 3 pivot steps) and 18 times to look at your feet. That's a total of 112 things to do. With six mistakes that makes a percentage correct on that maneuver of 95 percent, certainly a passing score.

The manual includes the procedure used for testing each student's ability to administer the three instructor's standardized field sobriety tests. According to the manual:

"Passing" that test requires that the students administer the complete test battery at least once, in an instructor's presence without deleting or erroneously performing any of the critical administrative elements of the tests".(28)

The manual then sets out the criteria of the necessary elements of the tests that must be given in the proper administration of each of the tests. Suppose, in administering the walk and turn test, the officer failed to instruct the accused to look at his feet and to not raise his arms from his sides.

Q: Isn't it true, Officer Jones, according to your instructor's manual, that if you leave out one of the critical administrative elements of the test, then you have failed in the proper administration of the tests?

A: Yes.

Q: Isn't it true, according to your manual, two of the critical elements of the walk and turn test, are to instruct the subject to look at the feet while walking, and also, to instruct the subject not to raise the arms from the sides?

A: Correct.

Q: You did not instruct Mr. Accused in either one of the elements, did you?

A: No sir.

Q: So, you yourself failed in the administration of the tests. Isn't that true?

A: Uh...

Q: Officer Jones, what does the phrase "garbage in, garbage out" mean?...I withdraw the questions, your Honor.

Certainly then, this would give defense counsel fuel to argue in closing argument. How can one say the accused "failed a test" wherein the person giving the test "failed" in the proper administration of that same test?

The instructors manual could also be used to establish the fact that six tests were used initially in the studies by NHTSA29, however, the research concluded that only three tests came out as indicators of distinguishing BAC's above 0.10 percent. In other words, the finger to nose and the alphabet test can be de-emphasized due to their being dropped by NHTSA as indicators of intoxication.

Legal Issues

Field sobriety tests and their admissibility provide many legal issues for consideration. Some of them are:

1. To what extent should the prosecution witness be allowed to testify about the "psychomotor skills?"

2. If the only research that has been done on them was to determine whether one's BAC is over 0.10 percent, are they even relevant or material in a case wherein the alleged BAC is below 0.10 percent?

3. Do they constitute a search, thus requiring probable cause (instead of just reasonable suspicion) before one is to perform them?30

4. Can the prosecution show that the FST's were "voluntary" and not a mere submission to police authority?31

5. Was the accused "in custody" for purposes of this 5th Amendment (or appropriate state constitution section) protection against self-incrimination?32

6. Should the officer be allowed to testify about "clues" or use words such as "test" or "failed" or "pass?"33

Interestingly, the Meador case (see footnote 33) was the case wherein the sworn testimony of Dr. Marcelline Burns was taken and used for the writing of this article. The Meador case was decided just after the writing of this article by the author. The holding of the District Court of Appeals in Florida was to admit the observation only of the officer as to the one legged stand and the walk and turn test as lay observations, however, such terms as "test," "pass," "fail," or "points," should be avoided to minimize the danger that the trier of fact will attach a greater significance to the results of the field sobriety exercises than to other lay observations of impairment.

The Meador case further held that the HGN test should not be admitted as lay observations of intoxication because HGN testing constitutes scientific evidence, and should be excluded unless the traditional predicate of scientific evidence are satisfied.

7. Are the standardized FST's admissible to show that one's ability to drive safely was impaired?

Here are the sworn direct answers of Marcelline Burns propounded to her by the court in her December 1994 testimony:

THE COURT: My other question was, did you agree with, did you not agree or do you not agree with Dr. Cole when he said these tests you are administering in that laboratory setting as opposed to the reality in the field is simply designed to help an officer predict the BAC and not his ability to drive a vehicle with safety?

THE WITNESS: That's absolutely right. The officer is not charged with trying to determine whether they can drive safely, but whether or not they are impaired by alcohol.

THE COURT: I thought that was the ultimate question, too impaired to drive.

THE WITNESS: It is not possible to measure that.

Conclusion

According to the sworn testimony of Ms. Marcelline Burns, the entire 1977 and 1981 NHTSA studies may now be subject to total invalidation. In her zealous attempt to explain the reason there were so many misjudgments by the officers of subjects who had no alcohol in their system, it is apparent that the experimentation was not done in a scientifically acceptable manner. Her admission that none of the subjects (police officers as well) were screened for impairment by drugs and, using her words, the experimentation was done "next to the drug capital of the world," the entire project should be considered null and void. Due to the lack of controlling the variables in the experiment (screening for drugs) the findings are clouded with unreliability. We do not know how many of the findings of impairment in the 1977 and 1981 studies were due to ingestion of drugs prior to being dosed with alcohol.

The validity of the results or statistics of both the 1977 and 1981 studies are limited in scope for many reasons, Due to the fact that the entire studies were predominately male subjects in their twenties puts questionable validity to the interpretation of the results done on individuals falling outside of these categories. Subjects age 35 and up or females of any age certainly fall outside the statistical significant area of the studies. To say that the SFST's have any significance whatsoever to a 43-year old female, for example, is a tremendous stretch of one's imagination.

These field sobriety tests should not be placed upon the prosecutorial pedestal and should be continued to be closely scrutinized by defenders of the constitutions of this great country. Good luck and be prepared.

1. State of Florida vs. Meador, et al., 674 Southern Reporter 2d 826

2. Sworn testimony of Marcelline Burns taken December 9, 1994 in State of Florida vs. William Meador, et al. Case Number 93-810MM10A

3. Nowacyk, R.H., Dr., and Cole, S., Dr. Separating Myth from Fact: A Review of Research on the Field Sobriety Test, The Champion, August, 1995.

4. DWI Detections and Standardized Field Sobriety Testing, Instructor's Manual, DOT-HS-178 R6/92

5. DUI Detection and Standardized Field Sobriety Testing, Student Manual, DOT-HS-178 R6/92

6. Burns, M., and Moskowitz, H., Psychophysical Tests for DWI Arrest, DOT-HS-5-01242 (June, 1977)

7. Sworn testimony of Marcelline Burns, pgs. 12-13

8. DUI Detection and Standardized Field Sobriety Testing, Instructor's Manual, DOT-HS-178 R6/92 p. VIII-3 (See Also, Psychophysical Tests for DWI Arrest, June, 1977)

9. Sworn testimony of Marcelline Burns, p. 57

10. Sworn testimony of Marcelline Burns, p. 46-47

11. Tharp, V., Burns, M., and Moskowitz, H., Development and Field Test of Psychophysical Tests for DWI Arrest, DOT-HS-8-01970, Report No. DOT-HS-for DWI Arrest, DOT-HS-8-01970, Report No. DOT-HS-805-864, March 1981

12. Sworn testimony of Marcelline Burns

13. Sworn testimony of Marcelline Burns, p. 30

14. Anderson, T., Schweitz, R., and Snyder, M., Field Evaluation of a Behavioral Test Battery for DWI, DOT-HS-806-475, September, 1983.

15. Anderson, T., Schweitz, R., and Snyder, M., Field Evaluation of a Behavioral Test Battery for DWI, DOT-HS-806-475, September, 1983.

16. Id., at page 9

17. Nowacyk, R.H., Dr., and Cole, S., Dr., Separating Myth From Fact: A Review of Research on the Field Sobriety Tests

18. Sworn testimony of Marcelline Burns, p. 55

19. Nowacyk, R.H., Dr., and Cole, S., Dr., Separating Myth from Fact: A Review of Research in the Field Sobriety Tests citing A. Anastasi, Psychological Testing; 6th Ed., New York, McMillan Press 1988; R. Rosenthal & R.D. Rosnow, Essentials of Behavioral Research (2nd Ed.), New York: McGraw-Hill (1991).

20. Sworn testimony of Marcelline Burns, p. 19

21. DUI Detection and Standardized Field Sobriety Testing, Student Manual, DOT-HS-178 R6/92, p. VIII-10

22. DUI Detection and Standardized Field Sobriety Testing, Student Manual, DOT-HS-178 R6/92, p. VIII-21

23. DUI Detection and Standardized Field Sobriety Testing, Student Manual, DOT-HS-178 R6/92, p.VIII-21.

24. DUI Detection and Standardized Field Sobriety Testing, Student Manual, DOT-HS- 178 R6/92, p. VIII-18(4)

25. DUI Detection and Standardized Field Sobriety Testing, Student Manual, DOT-HS-178 R6/92, p. VIII-18

26. DUI Detection and Standardized Field Sobriety Testing, Instructor's Manual, DOT-HS-178 R6/92, p. 21

27. DUI Detection and Standardized Field Sobriety Testing, Instructor's Manual, DOT-HS-178 R6/92, p. 20-21

28. DUI Detection and Standardized Field Sobriety Testing, Instructor's Manual, DOT-HS-178 R6/92, p. 20

29. DUI Detection and Standardized Field Sobriety Testing, Instructor's Manual, DOT-HS-178 R6/92, p. VIII-2, VIII-3

30. People v. Carlson, 677 P. 2d 310 (Colo. 1984); State v. Superior Court, (Blake) 718 P. 2d 171 (Ariz. 1986)

31. Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed 854, 93 S.Ct. 2041 (1973), United States v. Watson, 423 U.S. 411, 46 L.Ed 598, 96 S. Ct. 820 (1976)

32. Berkemer v. McCarty, 104 S. Ct. 3138 (1984); Pennsylvania v. Muniz, 110 S. Ct. 2638 at 251 and 2657; See also State v. Fish, 893 P. 2d 1023 (Or. 1995); and Allred v. Florida, 622 So.2d 984 (Fla. 1993) (These two cases seemed somehow to escape the custody requirement at roadside encounters. For example, see Stone v. City of Huntsville, 656 So. 2d 4304 (Ala.Cr.App. 1994)).

33. State of Florida v. Meador, et al. 674 So. Reporter 2d 826