NHTSA, The National Highway Traffic Safety Administration, has spent immense amounts of money attempting to “standardize” the tests that drivers are asked to perform to determine whether or not they are above the legal limit. A more thorough discussion on standardized field sobriety tests can be found at: “Standardized Field Sobriety Testing and Cross Examination of The Arresting Officer.”
While police officers are certainly supposed to attempt to administer standardized field sobriety tests as part of their training in determining whether or not someone is driving impaired, the State of Missouri will, of course, attempt to show probable cause to arrest in DWI cases where no field sobriety tests are available, either because the officer did not instruct, demonstrate, administer or score these tests correctly or where the driver refused to take the field sobriety tests.
Our office is commonly asked about the ability of police officers to accurately detect whether or not drivers suspected of DWI are impaired or merely exhibiting signs of alcohol consumption absent the results of field sobriety testing.
There are several studies on this topic, and the results of these studies should be disturbing, although not exactly surprising, to the driver who has had a couple of drinks and is well below the legal limit, but has experienced facing a DWI investigation when pulled over due to presence of the “reliable” clues of alcohol consumption police rely on in making DWI arrests.
In a study entitled, “Psychology, Public Policy, and the Evidence for Alcohol Intoxication,” Am. Psychologist 1070 (Oct. 1983), which was conducted at Rutgers University’s Alcohol Behavior Research Laboratory, attempts were made to quantify the ability of police officers, bartenders, and social drinkers to detect the level of alcohol impairment in drinking individuals. Each of these three groups were broken down into specific categories.
The study began with lay witnesses, or “social drinkers” ability to determine alcohol impairment in other drinking subjects. The subjects, who themselves were social drinkers were exposed to four individuals, both men and women, who they were told were drinking various amounts of alcohol. Some had consumed various amounts of alcohol, and others had not consumed at all. All of the four subjects were brought into a room with the “social drinkers,” allowed to be interviewed at length, and then each of the four left the room to allow the social drinkers to attempt to determine the level of alcohol impairment in each of the four individuals.
The study determined: “The assumption that social drinkers would prove to be accurate judges of the BAC of other persons was not confirmed. On only 4 of 16 occasions did a significant number of subjects correctly classify a target on a three-stage categorical index of intoxication level. If determining whether a man is sober of intoxicated is a matter of common observation, then our subjects apparently lacked this capacity.” Am. Psychologist at 1072.
The study then proceeded to the second category, bartenders, who would presumably have more ability to determine whether or not someone was alcohol impaired, as they are obviously exposed to drinking subjects in a constant fashion. The setting for this part of the study was conducted in a bar, using similar testing standards.
The study determined for the bartenders: “The bartenders correctly rated a target in only one of four instances. Contrary to expectation, no relationship between years of experience as a bartender and BAC estimation accuracy was found. These data suggest strongly that these bartenders did not possess and had not acquired special knowledge or skill in identifying intoxicated persons.” Am. Psychologist at 1074.
Finally, the third group of police officers was tested using 30 police officers from New Jersey. 15 of the police officers were tested in circumstances similar to the first test, and 15 of the police officers were tested in situations like they might find while conducting a DWI investigation after a routine traffic stop.
The results: “When police observers in the laboratory condition were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found. Officers in the arrest analogue condition were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.” Am. Psychologist at 1076.
The study concluded: “the results of the three experiments described here are not reassuring. All three of the subject groups studied– social drinkers, bartenders, and police officers– correctly judged targets’ levels of intoxication only 25 percent of the time.” Am. Psychologist at 1076.
ODOR OF ALCOHOL
One of the most common clues cited as a basis for believing someone is alcohol impaired in a DWI arrest is the presence of the odor of alcohol. Rarely is there a case where the odor of alcohol is not alleged.
In 1999, the same researchers who conducted NHTSA’s validation research for field sobriety testing also conducted a study on the ability of police officers to accurately detect alcohol impairment from the odor of alcohol. See Herbert Moskowitz, Marcelline Burns & Susan Ferguson, Police Officers’ Detection of Breath Odors From Alcohol Ingestion, 31 Accident Analysis and Prevention 175 (May 1999).
Similar to the Rutger’s University study previously discussed, this study found that the police officers’ determinations that subjects were below, at, or above certain blood alcohol levels were random guesses, and that blood alcohol level cannot be accurately determined from the odor of alcohol.
FLUSHED FACE OR RED OR GLASSY EYES
Despite the fact that the police almost always have some combination of “flushed face,” or “bloodshot,” “red,” or “glassy eyes” listed as indicia of their belief that the arrested driver is impaired by alcohol, another study, also conducted by NHTSA, Jack Stuster, U.S. Department of Transportation, NHTSA Final Report, The Detection of DWI at BAC's Below 0.10, DOT HS808-654 (Sept. 1997), p. E-10, specifically discounted these clues in attempting to make the study more accurate.
This study found: “Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.”
The Detection of DWI at BAC's Below 0.10, DOT HS808-654 (Sept. 1997), p. E-10.
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