Wednesday, August 26, 2009

CHP Tricks on how to flunk a possible California DUI Suspect taken right from CHP DUI Enforcement Manual

California Highway Patrol DUI Enforcement Techniques

PRE-ARREST SCREENING.
a. Pre-arrest screening consists of establishing a safe location to administer field
sobriety tests (FSTs), asking a series of pre-test questions, and administering a
series of FSTs.
b. It is imperative that the officer select a safe location to administer FSTs.
Where possible, administer psychophysical FSTs on a smooth flat surface with
adequate lighting.
c. A DUI investigation should not be given at a location that may be hazardous.
Although it is recognized that any area can be potentially hazardous, it is generally
agreed that certain places rank high on the list as being imminently dangerous.
These areas include:
(1) In front of a drinking establishment.
HPM 70.4 2-8
(2) In front of the subject's residence, with a gathering of people consisting of
family and/or friends.
(3) In an area which has a history of being a source of racial strife and
rioting.
(4) Within sight of any large gathering of people.
(5) Within a traffic lane.
(6) Between vehicles.
d. In the event that such a situation should present itself, the subject should be
removed from the hazardous area as quickly as possible, and the examination
conducted elsewhere. If the subject displays signs of having been drinking,
do not allow the subject to drive. Careful consideration should be given when
moving a subject so as to not violate his/her rights. In order to ensure a lawful
detention when moving the subject, one of the following should occur:
(1) Attempt to gain the subject's consent to move to another location, or;
(2) Evaluate the facts present at the time.
(a) If after contact the driver is determined not to be DUI, the
enforcement contact should be handled accordingly.
(b) If after contact reasonable suspicion exists that the driver may be
DUI, the officer may remove the driver from the hazardous area, to a
safe location, and conduct the FSTs. This is a lawful investigative
detention as long as the officer acts in a manner to quickly confirm or
dispel his/her suspicions. FSTs may be conducted as they are
investigative in nature.
(c) If after contact probable cause exists to arrest the driver for DUI, the
officer should arrest the driver. FSTs may be conducted after arrest in
order to gather additional evidence to support prosecution.
e. Officers should ask a series of pre-test questions. These questions are
designed to illicit information that will assist the officer in developing an opinion as
to alcohol and/or drug impairment. The questions contained on page 2 of the
CHP 202, DUI Arrest-Investigation Report, may be asked without a Miranda
admonition during an investigative detention. However, if the driver is placed
under arrest, officers shall advise him/her of his/her Miranda rights prior to asking
any questions intended to solicit incriminating statements.
2-9 HPM 70.4
5. OVERVIEW AND ADMINISTRATION OF FSTs.
a. Psychophysical FSTs are designed to evaluate a person’s ability to divide
his/her attention. That is, they require the subject to concentrate on several things
at once. In order to operate a motor vehicle safely, a driver must react
appropriately to a constantly changing environment while simultaneously
controlling steering, acceleration, and braking.
b. Alcohol and other drugs substantially reduce a person’s ability to divide
attention. Even when under the influence, many people can handle a single,
focused attention task fairly well. For example, a driver may be able to keep a
vehicle well within the proper traffic lane as long as the road remains straight.
When the road curves, the impaired driver may not perceive the curvature and run
off the road.
c. The concept of divided attention has been applied to psychophysical FSTs.
Most FSTs simulate the divided attention characteristics of driving. In order to
operate a vehicle safely, a driver must exercise the following mental and physical
capabilities:
(1) Information processing.
(2) Short-term memory.
(3) Judgment and decision making.
(4) Balance.
(5) Steady, sure reactions.
(6) Clear vision.
(7) Small muscle control.
(8) Coordination of limbs.
d. FSTs require a person to demonstrate at least two or more of these
capabilities simultaneously. FSTs must be simple and an average person should
have no difficulty performing the tests when sober. Each test must be thoroughly
explained and demonstrated in such a manner that the subject understands what
is expected.
e. The CHP 202S, Driving Under the Influence Field Evaluation Notes,
(Annex 2-A) is an optional tool available for officers needing to document signs of
impairment during DUI investigations. Officers who elect to utilize the CHP 202S
HPM 70.4 2-10
shall tape the original to an 8 ½ x 11 inch sheet of paper and attach it to the arrest
report. All information outlined on the CHP 202S is in strict accordance with
standards set forth by NHTSA and this manual.
6. STANDARDIZED FSTS.
a. General.
(1) In February 1975, the first major scientific study within the United States
was conducted to identify the most reliable FSTs and study their relationship
to intoxication and driving impairment. The study was conducted by the
Southern California Research Institute (SCRI) under contract from NHTSA
(DOT-HS-5-01242). The study successfully identified three reliable FSTs and
the results were published in 1977 (Psychophysical Tests for DWI Arrest).
Two subsequent studies were conducted under contract from NHTSA in order
to further develop and study the three reliable FSTs within a laboratory
controlled environment and, additionally, “out in the field.” The 1981 study
was entitled Development and Field Test of Psychological Tests for DWI
Arrest (DOT-HS-8-01970); and the 1983 study was entitled Field Evaluation
of a Behavioral Test Battery for DWI (DOT-HS-806-475). The three test
battery consisted of:
(a) Horizontal Gaze Nystagmus.
(b) Walk and Turn.
(c) One-Leg-Stand.
(2) Since 1983, the three test battery has been further studied for its
accuracy in assisting the officer in DUI investigations. The studies are:
(a) 1995 - A Colorado Validation Study of the Standardized Field
Sobriety Test (SFST) Battery, PN-95-408-17-05.
(b) 1997 - A Florida Validation Study of the SFST Battery, AL-97-05-
14-01.
(c) 1998 - Validation of the Standardized Field Sobriety Test Battery at
BACs Below 0.10 Percent, DTNH-22-95-C-05192.
(3) By utilizing the three test battery, the reliability rate for identifying drivers
with a blood alcohol level at or above the legal limit is at least 90 percent.
This information is based on the exhaustive studies regarding the three test
battery.
2-11 HPM 70.4
(4) The Department utilizes the three test battery, commonly referred to as
standardized field sobriety tests or SFSTs, and the preliminary alcohol
screening (PAS) device to assist an officer in identifying the impaired driver.
The Department recognizes five alternative FSTs and accepts that additional
FSTs may be given if approved and authorized by the local district attorney.
Officers should not rely on one test as the sole criteria for making a DUI
arrest. It is imperative that an officer base his/her opinion to arrest a
suspected DUI driver on the totality of the circumstances presented. It is
important to note that a subject DOES NOT pass or fail a field sobriety
test. As the subject performs the FST, an officer makes note of the
observable signs of impairment.
b. Horizontal Gaze Nystagmus (HGN).
(1) Because of the unique nature of this test, it should be used only by
officers who have received formal training in its administration. HGN is not a
psychophysical test. The clues associated with HGN provide valid and
reliable indicators of whether a driver is above or below the statutory Blood
Alcohol Concentration (BAC) limit.
(2) Types of Nystagmus. Nystagmus is defined as the involuntary jerking of
the eyes. There are numerous circumstances under which nystagmus may
occur. These circumstances are classified as having the following three
origins:
(a) Vestibular Nystagmus. Caused by movement or action to the
vestibular system. The vestibular system is a sense organ located in the
inner ear. It provides information to the brain and, consequently, to the
eyes about position and movement of the head to maintain orientation
and balance of the body.
(b) Neural Nystagmus. Neural nystagmus is defined as, of or relating
to, affecting a nerve or the nervous system.
(c) Pathological Disorders. Nystagmus may be caused by certain
pathological disorders. They include brain tumors, other brain damage,
or certain diseases of the inner ear. Persons suffering from these
disorders are rarely able to drive.
(3) HGN is a type of neural nystagmus. HGN is defined as the involuntary
jerking of the eyes occurring as the eyes gaze toward the side. HGN is the
most accurate and reliable FST for determining alcohol influence. In addition,
its presence may indicate use of PCP, inhalants, and central nervous system
depressants.
HPM 70.4 2-12
(4) Test Administration. It is important to administer the HGN test
systematically to ensure that nothing is overlooked.
(a) Set-up.
1 Instruct the subject to remove eyeglasses. Eyeglasses may
impede the subject’s peripheral vision, and may also impede the
officer’s ability to observe the eyes carefully. It does not matter
whether the subject can see the stimulus with perfect clarity, as
long as the subject can see and track the stimulus. Visual acuity is
not a factor with this test.
2 Inquire if the subject is wearing colored contact lenses.
Contact lenses (hard or soft) will not affect the HGN test; however,
colored contact lenses may impede an officer’s ability to evaluate
pupil size. Officers should not ask a subject to remove contact
lenses.
3 Instruct the subject to stand with his/her feet together and
hands to his/her sides. The subject shall keep his/her head still and
focus his/her eyes on the tip of the specific stimulus (e.g., eraser on
a pencil, the tip of a pen-light, or the tip of a finger) and follow the
movement with the eyes only.
4 Position the stimulus approximately 12-15 inches in front of the
subject’s nose and slightly above eye level.
(b) Step One: Tracking Ability.
1 From the center position, move the stimulus smoothly all the
way out to the subject’s left; then immediately bring the stimulus
smoothly across the face all the way out to the subject’s right and
then back to the center position (should take approximately
four [4] seconds).
2 While performing this, observe the subject’s eyes and ensure
that they track evenly. If the eyes do not track together, there is a
possibility the subject is suffering from a neurological disorder or
the subject may have an artificial eye. If the eyes do not track
together, it is recommended that HGN not be administered.
2-13 HPM 70.4
(c) Step Two: Pupil Size.
1 With the stimulus held in the start or beginning position,
visually check to see if both pupils appear to be equal in size
(should take four to five [4-5] seconds).
2 The size of the subject’s pupils may be affected by some
medical condition or injury. If the two pupils are distinctly different
in size, it is possible that the subject has an artificial eye, suffering
from a past or present head injury, or has a neurological disorder.
(d) Step Three: Lack of Smooth Pursuit.
1 Starting with the stimulus at the center position, move the
stimulus smoothly all the way out to the subject’s extreme left
(should take two [2] seconds). Immediately move the stimulus all
the way to the subject’s extreme right (this should take four [4]
seconds). At least two (2) passes should be performed on each
eye. When at the extreme, no white should be seen in the corner
of the eye.
2 While checking the left and right eye for “lack of smooth
pursuit,” look for the jerking of the eye while it is moving.
A person’s eyes that do not display “lack of smooth pursuit” will
look similar to a marble that is rolling across a polished pane of
glass. A person’s eyes that exhibit this clue will look similar to a
marble that is rolling across a sheet of coarse sand paper.
(e) Step Four: Distinct Nystagmus at Maximum Deviation.
1 While at the center position, move the stimulus to the subject’s
extreme left until no white is seen in the corner of the left eye. Hold
the stimulus at that position for at least four (4) seconds. Move the
stimulus to the subject’s extreme right until no white is seen in the
corner of the right eye. Hold the stimulus at that position for at least
four (4) seconds. At least two (2) passes should be performed on
each eye.
2 Look for a distinct, sustained jerking of the eye while the eye
gazes to the side. While unimpaired, it is possible that
approximately half the population will exhibit a slight jerking of the
eye while gazing to the extreme. This slight jerking will not be the
very distinct jerking evident when the subject is impaired.
HPM 70.4 2-14
(f) Step Five: Onset of Nystagmus Prior to 45 Degrees.
1 From the center position, move the stimulus slowly to the
subject’s left. Stop moving the stimulus once it reaches a
45 degree angle relative to the center position. The stimulus
should be moved at a speed that would take approximately
four (4) seconds to reach a 45 degree angle. If the subject’s left
eye begins jerking prior to reaching a 45 degree angle, stop moving
the stimulus and note that nystagmus was seen prior to
45 degrees.
2 The right eye should then be checked in the same fashion. At
least two (2) passes should be performed on each eye. Studies
have indicated that approximately four percent of the population,
while unimpaired, may have nystagmus prior to a 45 degree angle.
(g) Step Six: Vertical Gaze Nystagmus (VGN). Vertical Gaze
Nystagmus occurs as the eyes gaze upward. The presence of this type
of nystagmus is associated with high doses of alcohol for that individual
and certain other drugs. The drugs that cause Vertical Gaze Nystagmus
are the same ones that cause Horizontal Gaze Nystagmus.
1 Position the stimulus horizontally, approximately 12-15 inches
(30-38 cm) in front of the subject’s nose. Instruct the subject to
hold the head still, and follow the stimulus with the eyes only.
Raise the stimulus until the subject’s eyes are elevated as far as
possible. Hold for approximately four (4) seconds. Watch the eyes
closely for jerking as they are moved up and are held in the up
most position.
2 There is no drug that will cause Vertical Gaze Nystagmus that
does not cause Horizontal Gaze Nystagmus. If Vertical Gaze
Nystagmus is present and Horizontal Gaze Nystagmus is not, it
could be a medical condition.
NOTE: Vertical Gaze Nystagmus was not examined in the original
research that led to the validation of the Standardized Field
Sobriety Test battery (Horizontal Gaze Nystagmus, Walk-and-Turn,
and One-Leg Stand).
(h) Validated Clues. There are six (6) validated clues for HGN. Based
upon extensive developmental research into HGN, the criterion for this
test is four (4) out of the six (6) clues. Based on validated research,
2-15 HPM 70.4
77 percent of subjects who exhibit at least four (4) of the possible six (6)
clues will have a BAC at or above 0.10 percent.
1 Lack of smooth pursuit in the left eye.
2 Lack of smooth pursuit in the right eye.
3 Distinct nystagmus at maximum deviation (left eye).
4 Distinct nystagmus at maximum deviation (right eye).
5 Angle of onset prior to 45 degrees (left eye).
6 Angle of onset prior to 45 degrees (right eye).
(i) Scientific Validity and Reliability. The following cases are landmark
court decisions relevant to the admissibility of HGN.
1 Arizona State v. Blake (1986). This is considered a landmark
case on HGN because it was the first state supreme court level
ruling. The Arizona Supreme Court found that HGN satisfies the
Frye standards for evidence to corroborate or attack the issue of a
suspect’s impairment (the Frye case set the standards governing
the admissibility of “new” scientific evidence).
2 People v. Joehnk (1995) 35 Cal.App.4th. Joehnk was stopped
by a San Diego Police officer for a defective brake light. The officer
observed outward signs of intoxication. After the officer correctly
administered HGN and other FSTs, the officer formed the opinion
that Joehnk was under the influence and arrested him.
a Joehnk was convicted of DUI. On appeal, he argued that
HGN did not meet the requirements of Frye. Under Frye, a
court must determine whether a clear majority of the relevant
scientific community accepts that the three-part HGN test is
useful, when viewed with other relevant indications, in
deciding whether a subject is under the influence of alcohol.
b Finding: The court upheld the definition of the relevant
scientific community as behavioral psychologists, highway
safety experts, criminalists, and medical doctors concerned
with the recognition of alcohol intoxication.
HPM 70.4 2-16
c The court further concluded that HGN is accepted in the
scientific community as one indicator that a person is under
the influence of alcohol.
(j) Relationship of HGN to Specific BAC Level.
1 People v. Loomis (1984) 156 Cal.App.3d Supp.1. The court
held that the officer was not entitled to testify as either a lay or
expert witness about HGN, or to give his opinion about the
defendant’s BAC.
2 Stephen Loomis was driving his red Ferrari on US 101 in
San Diego County when he was stopped by a CHP officer for
speeding and straddling a lane. The officer noticed objective signs
of intoxication and administered “Lateral Gaze Nystagmus.” The
officer testified that based on this test, he formed an opinion as to
Loomis’ BAC. He stated that Loomis’ eye reaction was less than
20 degrees and estimated his BAC between 0.15 and 0.16 percent.
3 Finding: “Without a showing of scientific expertise, a police
officer is not qualified to make a numerical correlation between
HGN and the numerical level of blood alcohol.”
(k) Officer Training, Experience, and Application.
1 Iowa State v. Murphy (1990). The court ruled that the results
of a HGN test could be admitted into evidence because HGN was
one of the SFSTs and the observations of intoxication obtained
from the test were objective in nature. The court noted that the
officer was properly trained to administer the test and that there
was no need that an officer be specially qualified to be able to
interpret the results.
2 People v. Ojeda (1990) 225 Cal.App.3d 404. Two sheriff
deputies stopped Ojeda for driving erratically. The deputies
observed objective signs of intoxication and administered five
FSTs. One of the FSTs was HGN. Ojeda was arrested for DUI. At
the trial, one deputy testified that he observed distinct nystagmus at
the extremes and a lack of smooth pursuit. Ojeda was found guilty.
a Upon appeal, Ojeda argued that any testimony
concerning the test results required scientific expertise which
the deputy did not possess. Furthermore, he argued that the
deputy did not have the medical expertise to offer an opinion
2-17 HPM 70.4
that there is a correlation between nystagmus and intoxication.
b Court Finding: “We hold only that an officer with
sufficient experience may testify based on his/her own
experience with relationship between HGN and alcohol
intoxication, to an opinion that the subject was or was not
under the influence.”
3 In order to document personal experience and training relating
to HGN, officers may use the CHP 202C, Influence Evaluations
(Rolling Log).
c. Walk and Turn.
(1) Based on scientific research, the Walk and Turn SFST is considered to
be the most sensitive psychophysical test. This SFST should be conducted
on a reasonably smooth flat surface with enough room for the subject to take
nine (9) heel-to-toe steps. This SFST can be used with or without a line for
the subject to walk on. If a line is not available, it should be explained to the
subject to walk an imaginary straight line.
(2) The Walk and Turn test requires the subject to stand in a heel-to-toe
fashion with the arms at the sides while a series of instructions are given.
Then, the subject must take nine (9) heel-to-toe steps along a straight line,
turn in a prescribed manner, and take another nine (9) heel-to-toe steps along
the line. All of this must be done while counting the steps aloud, keeping the
arms at the sides, and looking at his/her feet. The subject must not stop
walking until the test is completed.
(3) This SFST requires the subject to divide attention among mental tasks
and physical tasks. The mental tasks include comprehension of verbal
instructions, processing of information, and recall of memory. The physical
tasks include balance and coordination while standing still, walking, and
turning.
(4) Test Administration. The Walk and Turn test has two (2) stages: the
instruction stage and the walking stage.
(a) Instruction Stage.
1 Instruct the subject to place his/her left foot on a line.
2 The subject’s right foot is then placed ahead of the left foot with
the heel of the right foot against the toe of the left foot.
HPM 70.4 2-18
3 Instruct the subject to place his/her arms to his/her sides and
to remain in that position during the instruction phase and until told
to begin.
4 Instruct the subject to take nine (9) heel-to-toe steps along the
line, turn on the line, and return taking nine (9) heel-to-toe steps.
5 The turn is executed by keeping the ninth (left foot) step in
place and rotating around that foot (counter-clockwise) by taking
small steps with the right foot 180 degrees or until the subject is
facing in the opposite direction.
6 The subject should watch his/her feet while walking, keep
his/her hands to his/her sides, while counting each step taken out
loud.
7 Instruct the subject that once the walking begins, not to stop
walking until the test is completed.
(b) Walking Stage. The subject executes the test.
(5) Validated Clues. Based on validated research, 68 percent of subjects
who exhibit at least two (2) of the following eight (8) validated clues will have
a BAC at or above 0.10 percent:
(a) Cannot balance during the instructions. This clue is recorded only if
the feet actually break apart. Do not record this clue simply because the
subject raises his/her arms or wobbles slightly. Even though raising the
arms or wobbling is not a validated clue, officers may document the
observation as an objective sign of intoxication.
(b) Starts too soon. This clue would be recorded only after the subject
has been told not to start walking until told to do so. These first two (2)
clues, like all clues in this SFST, can be accumulated only once. If the
subject loses balance twice during the instruction stage, it only
constitutes one (1) clue.
(c) Stops while walking. Record this clue if the subject stops walking
during the test. This includes a pause during walking.
(d) Misses heel-to-toe. In order to document this clue, a gap between
the heel and toe of at least one-half inch is necessary.
(e) Steps off the line. Document this clue if the subject steps either
right or left of the line.
2-19 HPM 70.4
(f) Uses arms to balance. In order to document this clue, a movement
of the arms of six (6) or more inches from the side is required.
(g) Improper turn. Document this clue if the subject turns other than the
way the officer has demonstrated the turn. This includes if the subject
staggers, stumbles, or falls during the turning movement.
(h) Takes the wrong number of steps. Document this clue if the subject
takes more or fewer than nine (9) steps in either direction. Mistakes in
the verbal count only do not justify recording this clue.
(6) The SFST may be terminated if the subject cannot safely complete it.
Count all eight (8) clues if the SFST is terminated for this reason. Keep in
mind, if the subject is performing poorly on this or any FST, but is still
relatively safe, allow them to continue.
(7) While performing this SFST, it is possible that the subject may exhibit
signs and symptoms of impairment that are not included as one of the
validated clues. These signs and symptoms should be documented and
considered by an officer when forming his/her opinion to arrest.
d. One-Leg-Stand.
(1) This SFST is the last of the three SFSTs. This SFST should be
conducted on a reasonably smooth flat surface. The One-Leg-Stand SFST
requires the subject to stand on one leg while the other leg is extended in
front of the subject in a “stiff-legged” manner with the foot held approximately
six (6) inches above the ground. The subject is to stare at the elevated foot
and count out loud in a designated fashion for 30 seconds.
(2) The One-Leg-Stand is another SFST that employs divided attention. The
subject’s attention is divided among such simple tasks as balancing, listening,
and counting out loud. Although none of these tasks are particularly difficult
by themselves, the combination can be very difficult for someone who is
impaired.
(3) Test Administration.
(a) Start by instructing the subject to stand with his/her feet together
and his/her arms down to his/her sides. The subject shall maintain that
position while the officer provides instructions on how to complete the
test. Instruct the subject not to begin until told to do so.
(b) Instruct the subject that, when given instructions to begin, he/she
must raise one (1) leg of his/her choosing in a “stiff-legged” manner and
HPM 70.4 2-20
hold the foot approximately six (6) inches off the ground with the toes
pointed forward so that the foot is parallel with the ground.
(c) The subject must keep his/her arms at his/her sides and must keep
looking directly at his/her elevated foot while counting out loud in the
following fashion: “one thousand and one, one thousand and two, one
thousand and three, and so on until told to stop.”
1 One purpose of having the subject count in this fashion is to
observe his/her internal clock. To estimate the passage of 30
seconds, a person will normally count in the following fashion: “one
thousand and one, one thousand and two, one thousand and
three…” Counting in this fashion will usually allow a person to
estimate or actually determine a 30 second passage of time.
2 It is important that the SFST last for 30 seconds. Accordingly,
officers should note the time for 30 seconds and stop the SFST
after the passage of 30 seconds. For example, if the subject
counts slowly, stop the test when 30 seconds have gone by, even if
the subject has only counted to “one thousand and twenty.”
Contrarily, if the subject is counting rapidly, allow them to continue
counting until the passage of 30 seconds has expired.
3 The validation studies have shown that many impaired people
can maintain his/her balance for up to 20 seconds, but seldom for
up to 30 seconds.
(4) Validated Clues. Based on validated research, 65 percent of subjects
who exhibit at least two (2) out of the following four (4) clues will have a BAC
at or above 0.10 percent:
(a) Swaying. Swaying means a very distinct, very noticeable side-toside,
front-to-back, or rotational movement of the subject’s elevated foot
or of the subject’s body. Slight tremors of the foot or body should not be
interpreted as swaying.
(b) Using arms to balance. Document this clue when the arms come
away from the sides six (6) or more inches.
(c) Hopping. Document this clue if the subject hops on the support foot
during the test.
(d) Putting the foot down. Document this clue if the subject puts his/her
elevated foot down during the test. If the subject does drop his/her foot
2-21 HPM 70.4
during this SFST, instruct the subject to lift his/her foot up and continue
counting where he/she left off.
(5) Terminate the SFST if the subject cannot safely complete it. Count all
four (4) clues if the SFST is terminated for this reason. Keep in mind, if the
subject is performing poorly on this or any FST, but is still relatively safe,
allow them to continue.
(6) While performing this SFST, it is possible that the subject exhibits signs
and symptoms of impairment that are not included as one of the validated
clues. These signs and symptoms should be documented and considered
when forming an opinion to arrest.
NOTE: DUE TO THEIR SCIENTIFIC VALIDATION, HGN, WALK AND
TURN, AND ONE-LEG-STAND SHOULD BE USED AS PRIMARY FSTs
WHENEVER POSSIBLE.
7. PRELIMINARY ALCOHOL SCREENING (PAS) DEVICE. The PAS test should be
given in conjunction with SFSTs or the alternative FSTs listed in this chapter. Except
for unusual circumstances, the PAS device shall be the last FST given to a subject.
Refer to Chapter 7 of this manual for PAS device operating instructions.
8. ALTERNATIVE FSTs. Alternative FSTs should be used if for some reason the
SFSTs cannot be given. The remaining tests are considered alternative or additional
FSTs:
a. Romberg Balance.
(1) The Romberg Balance FST was among one of the sobriety tests
considered by SCRI during the 1977 study. It was also considered one of
six optimal sobriety tests during a 1974 Finnish study. This FST was
implemented by the Los Angeles Police Department (LAPD) during the
formation of their Drug Recognition Evaluator (DRE) program and it was
accepted by NHTSA due to its unique divided attention qualities.
(2) Test Administration. The Romberg Balance FST requires the subject to
stand with his/her feet together, head tilted slightly back, and eyes closed
while estimating the passage of 30 seconds. When the subject believes that
the 30 seconds have passed, he/she should tilt his/her head forward, open
his/her eyes, and say, “stop.”
(a) Instruct the subject to stand straight with his/her feet together and
arms down to his/her sides. That position is to be maintained while the
HPM 70.4 2-22
test instructions are given. Emphasize that the subject must not start the
test until told to “start.”
(b) When told to do so, instruct the subject to tilt his/her head back
slightly and close his/her eyes. Ensure that the subject tilts his/her head
back prior to closing his/her eyes. Closing the eyes first, then tilting the
head back, may impair an individual’s normal equilibrium.
(c) Instruct the subject that when told to “start,” he/she must keep
his/her head tilted back with his/her eyes closed until he/she thinks that
30 seconds have passed by. Do not tell the subject to count to
30 seconds or use any other specific procedure to keep track of time.
Likewise, do not tell the subject that he/she is not allowed to count to 30
seconds.
(d) When the subject believes that 30 seconds have passed, he/she
should bring his/her head forward, open his/her eyes, and say, “stop.”
(e) Officers should glance at a watch and pick a convenient time to start
the test. When the subject says “stop,” record the passage of time. If 90
seconds elapses before the subject opens his/her eyes, stop the test
and ask, “how much time was that?”
(3) Test Interpretation. Some drugs tend to “speed up” the subject’s internal
body clock; so, the subject may open his/her eyes after only 10 or 15
seconds. Other drugs may “slow down” the bodies internal clock; so, the
subject may keep his/her eyes closed for 60 or more seconds. The major
clues associated with the Romberg Balance FST are:
(a) Subject’s ability to follow instructions.
(b) The amount and direction in which the subject sways.
(c) The subject’s estimated passage of 30 seconds.
(d) Eyelid tremors and body/leg tremors.
(e) Muscle tone (either more rigid or more flaccid than normal).
(f) Any statements or unusual sounds made by the subject when
performing the test.
b. Finger to Nose. The Finger to Nose FST was among the six optimal sobriety
tests that were tested during the initial 1977 study conducted by SCRI. It was also
included in a Finnish study conducted in 1974 and was implemented by the LAPD
2-23 HPM 70.4
during the formation of their DRE program. The test is also accepted by NHTSA
due to its unique divided attention qualities and depth perception issues.
(1) Test Administration. The subject is required to bring the tip of the index
finger up to touch the tip of the nose while his/her eyes are closed and his/her
head is tilted slightly back (standing in a manner identical to that required for
the Romberg Balance FST). The subject will attempt this six (6) times,
three (3) with each hand. The officer will instruct the subject as to which hand
to use on each attempt. The Finger to Nose FST differs from the other
psychophysical tests in that the examiner must continue to give instructions to
the subject throughout the test.
(a) Start by instructing the subject to place his/her feet together and
place his/her arms down at his/her sides.
(b) Instruct the subject to make a fist with the index finger extended and
rotate his/her palms forward.
(c) When told to do so, the subject should tilt his/her head back slightly
and close his/her eyes.
(d) Ensure that the subject tilts his/her head back prior to closing his/her
eyes. Closing the eyes first, then tilting the head back, may impair an
individual’s normal equilibrium.
(e) The subject will be instructed to bring either the left or right index
finger up to touch the tip of his/her nose. As soon as the finger touches
the tip of his/her nose, they must return the arm back down to his/her
side.
1 The arm shall come straight out in front of the subject and then
the extreme tip of the index finger brought back to touch the
extreme tip of the nose.
2 The following sequence should be followed when giving this
FST: “Left, Right, Left, Right, Right, Left.”
(2) Test Interpretation. The major clues associated with the Finger to Nose
FST are:
(a) The subject’s ability to follow instructions.
(b) The amount and direction in which the subject sways.
(c) Eyelid tremors and body/leg tremors.
HPM 70.4 2-24
(d) Muscle tone (either more rigid or more flaccid than normal).
(e) Any statements or unusual sounds made by the subject when
performing the test.
(f) The subject’s depth perception when attempting to touch the nose.
Was the speed slow or fast when bringing the finger to the nose?
(g) Document where the subject touches his/her index finger on his/her
face. Did the subject use the correct sequence as directed?
c. Hand Pat.
(1) Although the Hand Pat test has not been tested under scientific
conditions, experienced officers have indicated that it is a reliable FST. It
requires the subject to divide his/her attention between simple mental and
physical tasks. Many of the same necessary exercises used to drive a
vehicle are tested with the Hand Pat FST. Tasks such as:
(a) Information processing.
(b) Short-term memory.
(c) Judgment and decision making.
(d) Steady, sure reactions.
(e) Clear vision.
(f) Small muscle control.
(g) Coordination of limbs.
(2) The Hand Pat FST requires a subject to place one hand extended, palm
up, out in front of him/her. The other hand is placed on top of the first with the
palm facing down. The top hand then begins to pat the bottom hand. The top
hand rotates 180 degrees alternating between the back of the hand and the
palm of the hand. The bottom hand remains stationary. The subject counts
out loud, “ONE, TWO, ONE, TWO, ONE, TWO, etc.,” in relation with each
pat.
(a) Test Administration. Start by instructing the subject to stand with
his/her feet together and arms to his/her sides. Instruct the subject not
to begin until told to do so.
2-25 HPM 70.4
1 When told to do so, instruct the subject to put one hand out in
front of him/her with the open palm facing upward. The opposite
hand is then placed on top of the first hand with the open palm
facing downward.
2 The hand with the palm facing upward is held in a stationary
position. The hand on top with the palm facing downward will be
the only hand moving.
3 When told to begin, the subject will rotate the top hand
180 degrees and pat the back of the top hand to the palm of the
bottom hand simultaneously counting out loud, “ONE.” The top
hand then rotates 180 degrees so the palm of the top hand pats the
palm of the bottom hand simultaneously counting out loud, “TWO.”
The process then repeats. The subject should start at a slow
speed then, gradually increase the speed until a relatively rapid
pace is reached.
4 The subject should perform this FST for a minimum of
10 seconds but no more than 15 seconds.
(b) Test Interpretation. The major clues associated with the Hand Pat
FST are:
1 The subject’s ability to follow instructions.
2 Starts too soon.
3 The subject does not count as instructed.
4 The subject does not pat his/her hands as instructed.
5 Stops before instructed to do so.
d. Finger Count.
(1) The Finger Count FST has been used by experienced officers to assist
them in DUI investigations for several years and was among one of the six
primary FSTs studied by SCRI during the 1977 scientific research of FSTs.
The Finger Count FST is also recommended by NHTSA as an additional test
to assist an officer with a DUI investigation. Many of the same necessary
exercises used to drive a vehicle are tested with the Finger Count FST.
Tasks such as:
(a) Information processing.
HPM 70.4 2-26
(b) Short-term memory.
(c) Judgment and decision making.
(d) Steady, sure reactions.
(e) Clear vision.
(f) Small muscle control.
(g) Coordination of limbs.
(2) The Finger Count FST requires a subject to put one hand in front of
him/her with the extended palm facing upward. The tip of the thumb is then
touched with the tip of the index, middle, ring, and little finger. After each
touch, the finger and thumb are separated. The subject is required to count
out loud, “ONE, TWO, THREE, FOUR” in relation to each finger-thumb
connection. The process is then reversed. Three (3) complete sets are
performed.
(a) Test Administration. Start by instructing the subject to stand with
his/her feet together and arms to his/her sides. Instruct the subject not
to begin until told to do so.
1 When told to do so, instruct the subject to extend one hand
directly in front of him/her. Open the hand with the palm facing
upward. The thumb is then touched with the index finger and the
subject shall count out loud, “ONE.” The thumb is then touched
with the middle finger and the subject shall count out loud, “TWO.”
The thumb is then touched with the ring finger and the subject shall
count out loud, “THREE.” The thumb is then touched with the little
finger and the subject shall count out loud, “FOUR.”
2 The process is then reversed. The thumb is touched with the
little finger and the subject shall count out loud, “FOUR.” The
thumb is touched with the ring finger and the subject shall count out
loud, “THREE.” The thumb is then touched with the middle finger
and the subject shall count out loud, “TWO.” The thumb is then
touched with the index finger and the subject shall count out loud,
“ONE.”
3 The subject is then instructed to perform three (3) complete
sets. Ensure that the subject understands the FST instructions.
2-27 HPM 70.4
(b) Test Interpretation. The major clues associated with the Finger
Count FST are:
1 The subject’s ability to follow instructions.
2 The subject starts too soon.
3 The subject does not count as instructed.
4 The subject does not touch fingers as instructed.
5 The subject does not perform the correct number of sets.
6 The subject stops before instructed to do so.
e. Alphabet.
(1) The Alphabet FST has been used for several years to assist law
enforcement officers in DUI investigations. It also has been recommended by
NHTSA as an additional test to assist an officer with a DUI investigation since
many of the same tasks used to drive a vehicle are tested with this FST
(tasks such as information processing, short-term memory, judgment and
decision making, balance, steady and sure reactions, clear vision, small
muscle control, and coordination of limbs).
(2) Test Administration. The Alphabet FST requires a subject to recite the
English alphabet out loud. An alternate method to conduct the Alphabet FST
requires a subject to write the English alphabet and then sign and date the
paper.
(a) Verbal Method.
1 Start by instructing the subject to stand with his/her feet
together and arms to his/her sides. Instruct the subject not to begin
until told to do so.
2 Ask the subject if they know the English alphabet. Ascertain
what education level the subject may have to ensure his/her ability
to perform this FST.
3 Instruct the subject to verbally recite the English alphabet.
HPM 70.4 2-28
(b) Written Method.
1 Start by instructing the subject to stand with his/her feet
together and arms to his/her sides. Instruct the subject not to begin
until told to do so.
2 Ask the subject if they know the English alphabet. Ascertain
what education level the subject may have to ensure his/her ability
to perform this FST.
3 Place a piece of paper on a solid stationary object and give a
pen to the subject. The paper should be a piece of note paper or
other paper small enough to be attached to the report.
4 Instruct the subject to write the English alphabet on the piece
of paper. Also, instruct the subject to sign and date the paper.
5 If the subject is arrested, the paper shall be attached to the
arrest report and retained with the original file. If the subject is not
arrested, the paper may be destroyed since there is no legal
requirement to retain the paper.
(3) Test Interpretation. The major clues associated with the Alphabet FST
are:
(a) The subject’s ability to follow instructions.
(b) The subject starts too soon.
(c) The subject does not recite the alphabet correctly.
(d) The subject does not write the alphabet correctly (e.g., omits,
repeats letters, runs out of space on paper, size of letters are
inconsistent, writes in cursive, etc.).
(e) The subject exhibits slurred or incoherent speech.

9. REFUSAL TO COOPERATE.
a. It is impossible to demand or force anyone to complete an FST against
his/her will. If a subject refuses to take one or more of the FSTs, the significance
of the test and of his/her refusal should be explained in the narrative of the report.

Source CHP's December 2007 memo re: HPM 70.4 (Driving Under the Influence Enforcement Manual)

If arrested for a california dui by the chp, contact a criminal defense attorney asap.