The SFSTs Have Never Been Peer Reviewed

Peer review is a critical component of any scientific research.   You don’t simply expect people to take your word for it. Instead, you send things out to other experts in your field and you say: I am confident in the results I have received. But have at it.

Scientific results must be reproducible, preferably by independent, outside parties. Finally, you need to watch out for the phenomenon of “confirmation bias,” which one authority has defined as “a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.”

The Standardized Field Sobriety Test (SFST) battery, the collection of three tests used nationwide to decide whether or not to arrest someone suspected of drunk driving, fails on all three counts. It was never peer-reviewed. Its results have never been reproduced. And since the person who was asked to “validate” the reports – Dr. Marcelline Burns of the Southern California Research Institute — was the same person who was paid to develop the battery, it is fair to say that that the validation results may have been subject to “confirmation bias.” To say the least.

So how is it that these tests are now widely accepted by courts throughout the country? Therein lies a lesson in the evils of one jurisdiction simply adopting the findings of another.

Many of the first jurisdictions to admit testimony on the three tests – the horizontal gaze nystagmus (HGN), the one-leg-stand (OLS), and the walk-and-turn (WAT) – did in fact entertain evidence with respect to the scientific and technical rigor of the SFST. The problem was that, in so doing, the vast majority of them based their decisions on testimony and written studies by none other than Dr. Marcelline Burns herself. As a U.S. District Court in Maryland put it, Dr. Burns has been a “ubiquitous – and peripatetic – prosecution expert witness testifying in favor of their accuracy and reliability in a host of state cases, over a course of many years.” United States v. Eric Horn, 185 F.Supp.2d 530, n.14 (2002). This is putting it politely.

Other jurisdictions never even conducted their own evaluations. Instead, they simply adopted the findings of other jurisdictions. With respect to the Horizontal Gaze Nystagmus in the District of Columbia, for example, the D.C. Court of Appeals cited decisions by courts in Iowa and Ohio as the basis for its conclusion that “testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus is admissible without need for further scientific evidence.” Karamychev v. District of Columbia, 772 A.2d 806, 812 (D.C. 2001). The Iowa and Ohio courts both based their acceptance of the HGN on an Arizona court decision. And the Arizona court based its decision on expert testimony and written materials by Dr. Marcelline Burns.