Alphabet and Count Backwards Tests

In addition to the standardized field sobriety tests, police officers routinely conduct what are referred to as "non-standardized tests."  Although we have seen many different unique tests, the most common is the alphabet and count backwards tests.   

Unlike field sobriety tests which are based in science, the alphabet and count backwards tests are tests that have been developed independently by police officers, not scientists.  Because there are no standard rules for these tests, the officers' interpretation of whether you passed or failed is always skewed in favor of the police.

The key thing that any decent owi trial lawyer should know is how to attack these tests.  The best way to do this is to go after the cop about the test itself and how there is no set of rules behind its administration.  We have won many drunk driving jury trials doing just that. 

One Leg Stand

In Oakland County, most officers administer the one leg stand as part of their sobriety test toolkit.  In the one leg stand, the suspect is instructed to stand with one foot approximately six inches off of the ground and count aloud by thousands (one-thousand one, one-thousand two, etc...) until told to put their foot down.  The officer has the suspect count to 30 seconds.  During this time the officer is looking for four factors in determining the pass or failure of the test:

  • swaying while balancing;
  • using arms to balance;
  • hopping to maintain balance;
  • putting foot down.

The one leg stand is difficult to pass, even on level ground in the daytime.  When watching in car videos, officers many times demonstrate to the suspects how to do the tests.  One thing that is noticeable in these videos is that the officer will bend their knee on the leg standing on the ground, which makes the test much easier to perform.  Although officers are taught to do this, we have never seen any officer ever tell a suspect to bend their knee, thus ensuring a failed test.

Walk and Turn Test

The walk and turn test is probably the most well known of the standardized field sobriety tests.  The walk and turn involves the suspect taking nine steps in a straight line, then pivoting and taking nine steps back along the same line.  There are numerous factors that the officer is looking for when determining whether somebody has either passed or failed this test.  The specific requirements are:

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

Many times, people actually pass this test when officers indicate test failure in their reports.  Further, just because somebody wasn't able to perform the walk and turn doesn't necessarily mean that they are intoxicated.  Officers will generally testify that many people will fail this test no matter whether they have consumed alcohol or not.  Further, many times the officer doesn't know how to properly administer the test and sometimes they even require different conditions that make the test more difficult, such as counting out the steps.

Horizontal Gaze Nystagmus Test

In Oakland County, nearly every officer uses the horizontal gaze nystagmus test, better known as the HGN test,  as part of their investigations for drinking and driving.  The HGN test was devised from academics working on behalf of the National Highway Traffic Safety Administration.  What they came up with was a test that officers could supposedly detect intoxication simply from looking at somebody's eyes.  

The test itself is performed by an officer taking a pen or their finger and waiving it back and forth in front of the suspect's face.  The theory is that the eye will "jerk" as the pen goes back, much like a yard sprinkler.  In order to do this, the officer must first check the suspect's eyes for equal tracking, which means that the eyes follow the pen simultaneously.  Next, the officer checks to make sure the pupils are the same size.  Finally, the actual test begins.

There are three categories in the test that the officer is grading the suspect on: (1) the lack of smooth pursuit, in which the officer moves the pen slowly from the center of the face to each ear, looking for nystagmus, (2) distinct nystagmus at maximum deviation, where the officer will start at the center of the face and move the pen towards the ear until the eye cannot go anymore, then they watch to see if nystagmus occurs, (3) and angle of onset of nystagmus prior to forty-five degree, in which the officer moves the pen faster from the center of the face and attempts to see whether nystagmus occurs less than forty-five degrees from the center of the face.

Field Sobriety Test Overview

We've all watched enough COPS to know what field sobriety testing is, it is the main tool that the police use to get people to incriminate themselves for drinking and driving.  Every officer in Oakland County that deals with owi cases uses field sobriety tests.  Some better trained and smarter officers remember how to do the standardized tests, while others simply make up their own.  Everything from reciting the alphabet to standing on one leg is used by officers to prove intoxication later when you are in court.

Although most people don't realize it, you can refuse to participate in sobriety tests.  There is no law in Michigan that requires that people participate in the tests.  Further, even when operating while intoxicated suspects do well on the tests, the officers still seem to find a reason why the tests were failed.

Sobriety tests can be broken down into two types of tests, the standardized tests and the non-standardized tests.  There are only three standardized tests, the horizontal gaze nystagmus (the pen in the eye) test, the one leg stand test, and the walk and turn test.  Non standardized tests include everything else, including alphabet tests, counting tests, and many other tests the officers have developed by themselves.

Challenging the field sobriety tests is a key component to any successful owi trial.  The standardized tests have a specific set of requirements and they must be administered the same way every time.  Most officers are trained in these, yet they almost always fail to properly administer the field sobriety tests.  We have had great success in challenging officers lack of understanding of the tests.