The Walk-and-Turn Field Sobriety Test in Washington, D.C.

There are many ways for a criminal defense lawyer to challenge the walk-and-turn field sobriety test when representing a client charged with DWI, DUI, or OWI in Washington, D.C.

Previous entries have focused on challenges to each step of a police officer investigation into a possible DWI, DUI, or OWI.  On November 25, 2009, for example, I discussed potential challenges to the legality of the stop itself.  A November 26 entry focused on possible challenges to the officer’s initial observations and subsequent decision to further detain the driver for a field sobriety test.  And on December 1 I discussed potential challenges to the Horizontal Gaze Nystagmus test.

Today’s entry discusses potential challenges to the second component of the Standardized Field Sobriety Test: the Walk-and-Turn Test.

What is the Walk-and-Turn Test?

Like the two other components of the Standardized Field Sobriety Test used in Washington, D.C., the Walk-and-Turn test is a “divided attention” exercise which requires the subject to concentrate on two things at once.  In this case, the subject must pay attention to the officer’s instructions while performing a series of “psychophysical” tasks.

According to the police officer training manual used in Washington, D.C., there are two stages to the Walk-and-Turn test.  During the “instructions” stage, the subject must stand with his/her feet in heel-to-toe position with arms at his/her sides while receiving instructions.  This stage divides the subject’s attention between the physical task of standing while maintaining the heel-to-toe position and the mental task of listening to and remembering the instructions.

During the “walking” stage, the subject takes nine heel-to-toe steps, turns in a prescribed manner, and then takes nine heel-to-toe steps back, while simultaneously counting the steps out loud.  During the turn, the subject must keep his/her front foot on the line, make the turn as directed by the officer, and then return in the same manner.  The walking stage divides the subject’s attention between the physical task of walking in a straight line while balancing with the short-term memory task of recalling the number of steps and turning instructions.

The officer administering the test looks for eight clues in evaluating the subject’s performance of the test.  Specifically, the officer determines whether the subject:

• can’t balance during instructions
• starts too soon
• stops while walking
• doesn’t touch heel-to-toe
• steps off the line
• uses arms to balance
• loses balance on turn or turns incorrectly
• takes the wrong number of steps

The subject is determined to be completely unable to complete the test if the subject:

• steps off the line three or more times
• is in danger of falling
• cannot do the test

According to the manual, research shows that the subject’s blood alcohol content is likely to be above 0.10 if the subject exhibits two or more of the clues or cannot complete the test.  This determination is supposed to be accurate 68 percent of the  time.

Challenges to the Walk-and-Turn Test

The Walk-and-Turn test is certainly easier for a police officer to administer than the Horizontal Gaze Nystagmus Test discussed in an earlier entry.  At the same time, it too is subject to a number of challenges based on:  (1) the police officer’s administration of the test, and (2) the scientific validity of the results in assessing intoxication.

First, the walk-and-turn test is only valid if properly administered.  As the police officer training manual itself acknowledges, any deviation from the prescribed procedures compromises the validity of the test.  And there many ways in which a police officer, one who has received a brief training course in the administration of standardized field sobriety tests and perhaps a two-hour refresher course and who is working on the street late at night in sometimes unlit and hazardous conditions, could make minor errors in administering the test that could compromise the validity of the results.  There are also many ways in which the officer could have trouble in repeating this procedure for the court.

Second, even assuming that the test was properly administered, there are serious questions as to the scientific validity of the test in predicting intoxication.   As one critic, Board-Certified Forensic Pyschologist Steven Rubenzer, has pointed out, not a single one of the field studies validating the standardized field sobriety test as a method of assessing intoxicated has been published in a peer-reviewed scientific journal.  Writes Rubenzer:  “[p]eer review exposes the work to the criticism of other researchers and authors who may not share the same beliefs and purposes, and who have the training and experience in valid experimental design.  The scrutiny that this process brings is crucial to detecting error and bias.”

In short, as with the other two components of the standardized field sobriety test used in Washington, D.C., there are many ways a criminal defense lawyer can successfully challenge the walk-and-turn test in court.