The Prosecutor, July-August 2012, Volume 42, No. 4

Nine steps on a seven-step boat

Using standardized tests in a non-standard world poses many problems. While the Standardized Field Sobriety Tests (SFSTs) in DWI cases provide officers an essential tool in detecting impaired drivers, sometimes the most oft-used tool is not the right tool. This may come as a surprise to the National Highway Traffic Safety Administration (NHTSA), policymakers, and engineers, but the world is not standardized. This column is not meant to be a critique of the SFSTs (look at my past articles for that) but rather the introduction of a tool that puts the best parts and essential nature of the SFSTs into something workable for investigating Boating While Intoxicated (BWI) offenses. Maybe even more importantly, this new standardized sitting battery may have great future application for situations where the SFSTs simply don’t work. Any officer or DWI prosecutor has seen cases where environment, weather, or other circumstances have simply made the SFST battery impossible.
    Texas Parks and Wildlife (TP&W) authorities held an initial instructors’ training at Lake Texoma March 19–21. They were kind enough to invite me to come see what they were up to out on the lake. In short, I was impressed with the sitting battery of tests they use on boats to detect impairment. More importantly, prosecutors in jurisdictions where TP&W make BWI and DWI arrests will soon become familiar with these tests. TP&W has begun training its officers in the new National Association of State Boating Law Administrators’ “Boating Under the Influence Seated Battery Transition Training Course” (that name is a mouthful, so I will hereinafter abbreviate it to “seated battery of SFSTs”).1 This training builds on the game warden’s existing SFST training and updates.
        So what is this seated battery? Appropriately it looks a bunch like the SFSTs, including the same pre-test questions as SFSTs and a four-task battery, all done while the subject sits. This sitting aspect means it can be done on a floating, seven-step boat or in other circumstances where the SFST battery would be impossible, impractical, or unfair.
    It starts with HGN, the only difference being that the subject sits instead of stands. That’s it—other than that, it is the standard HGN test. Then the Walk-and-Turn and One-Leg-Stand tasks are replaced by three divided-attention tests, each with a very recognizable “instruction stage” followed by an equally recognizable “performance stage.” Each task has standardized clues and standardized evaluation criteria, or decision points.
    Task two, after HGN, is the Finger-to-Nose. Each of this task’s four parts are explained and demonstrated, and understanding is confirmed by asking the subject, “Do you understand?” The subject is told to make both hands into fists, extend his index fingers, turn his palms forward, and hold that position during instructions (see photo 1, below), which is very much like the beginning of the Walk-and-Turn. Then the subject is told to tilt his head back, close his eyes, touch the tip of his nose with the tip of the index finger (using the right or left hand as the officer instructs), and return his hand to his side (see photo 2, below). All of these instructions are set out in very clear language, simplified here for space. After this “instruction phase,” the subject is told to begin the “performance stage.” There are 13 standardized clues (nine or more of which are necessary to reach the evaluation criteria), some of which are very familiar to those experienced in SFSTs. They include not following directions, starting too soon, using the wrong hand when the officer calls out right or left, three specific varieties of failing to touch the instructed part of the finger to the instructed part of the nose, and failing to return the hand down to one’s side. This task is incredibly easy. Just follow simple directions and touch your nose. None of the unimpaired subjects had any problem with it. For the drinking subjects, not so much.
    Task three is the Palm Pat. Yes, this test also includes divided-attention elements. Like in the Finger-to-Nose, the subject is told to assume a starting position of one hand on top of the other held horizontally in front of his chest (see photo 3, below). This is followed by instruction broken into three parts, followed every time by the officer’s demonstration and confirmation of the subject’s understanding. Then the subject is instructed to begin and the performance stage follows. The suspect is told to turn the top hand over and “pat” the lower while counting “one,” then to rotate back to palm down, “pat” the lower, and count “two.” The subject is told to repeat this sequence, keeping his hands parallel until told to stop and to increase his speed through the test. Two clues of the 10 standardized clues are necessary. Like the One-Leg-Stand task in the roadside SFSTs, general types of failures are listed as standardized clues: “used arms for balance,” “hopping,” and “putting foot down” from the One-Leg-Stand are mirrored in the Palm Pat test by clues such as “rolled hands,” “double pat,” and “chopped pat.” Starting or stopping too soon, miscounting, failing to speed up, and rotating hands are also standardized clues. Again, receiving a full set of instructions and demonstrations allowed non-drinking subjects to sail through the test, while impaired subjects failed miserably, often with no idea how poorly they had done.
    The final task, Hand Coordination, was the most complicated by far—but no more so than the nine-step Walk-and-Turn. In fact, it was uncanny how similar the two tests are, yet unlike with the Walk-and-Turn, sea legs, bad ankles, shoes, surface, wind, vertigo, and all the other dumb excuses heard on the roadside and in the courtroom seem to vanish with the Hand Coordination task. It is far more oriented to divided attention than coordination.
    Like the other tests, there is an instruction stage, with demonstrations and confirmations, and then a four-task performance stage. Once more the subject assumes a starting position during instructions with both hands in a fist, the left fist in the center of the chest with the right fist against and in front of the left (see photo 4, below). First the subject is instructed to count out loud from one to four while moving his fists in step-like fashion and touching fists with each “step.” Then the subject is told to remember his hand position (which fist is where), clap his hands three times, and return his hands to the last position. Third, the subject must count from five to eight while taking four “steps” with his fists back to his chest. Finally, the subject is told to open his hands and place them palm down in his lap. Like the demonstrated turn in the nine-step Walk-and-Turn SFST, every impaired subject I saw forgot to return his hands to his lap. Even though the test is complicated, unimpaired subjects made it through. There are 15 standardized clues, of which three are necessary to reach the standardized evaluation criteria.
    If this all sounds like the SFSTs, that’s because it is. It should be no surprise that the battery has been through an initial three-year laboratory and subsequent field validation studies. These studies showed results that equaled or surpassed the validation results found in the NHTSA SFST validation studies over the years.2 Best yet, the validation studies are continuing. Now, as a cautionary note, they are not approved by NHTSA—but who cares? I have long advocated “Mom’s sobriety tests” (read about these at www.tdcaa.com/node/2489) and NHTSA has not approved of mothers, common sense, or thousands of other valid field and scientific investigative tools. And it doesn’t have to: The “highway folks” are a bit out of their element while afloat.
    Having done the unthinkable and suggested doing or supporting something new, let me make two recommendations. First, go to the National Association of State Boating Law Administrators’s website dealing with this new tool (www .operationdrywater.org/index.php/odw/le_judgout), and check it out. Second, talk with your local Texas Parks & Wildlife folks and see if there is a training on this new seated battery near you, and then go watch. We’ve attached the performance report below for you to look through it and familiarize yourself with it.
    As I have noted in the past, there are some serious limitations to the roadside SFST tool. Weight, age, weather, wind, traffic, officer safety, and claims of physical ailment have all been used effectively against the SFSTs in court. This new seated battery of tests eliminates or minimizes many of those issues, and it also makes much more sense in a marine setting. Just remember that many of the issues used effectively against SFSTs will exist with it too, including officer performance, updated training, the officer’s communicating a subject’s divided attention and mental impairment, impeachment with the manual, and relating these tests to operation of a boat or vehicle. Despite these potential hurdles, these tests are a step in the right direction. If your jurisdiction includes both water and beer, get ready because they are headed your way.

Endnotes
1 From a letter from the National Association of State Boating Law Administrators found at www.operationdrywater.org/index.php/odw/le_judgout: “Recognizing the benefits of developing a seated battery of field sobriety tests, which have no dependency upon balance or equilibrium, the U.S. Coast Guard and National Association of State Boating Law Administrators partnered to have research performed with a goal of scientifically validating a seated battery of field sobriety tests. This three-year project involved the research team from the Southern California Research Institute, which is the same organization that has researched sobriety testing in the United States for the National Highway Traffic Safety Administration and International Association of Chiefs of Police. This research involved both laboratory and field research, which ultimately proved validity of this battery of tests during actual on-water boating under the influence investigations. In 2009, the research was completed and the final report was both peer-reviewed and published in at least one scientific journal.”
2 D.D. Fiorentino, Accident Analysis and Prevention 43 (2011) 870–877; this and other resources can be found at www.operationdrywater.org/ index.php/odw/le_judgout.

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