Field Sobriety Tests - PA Superior Court gives police more leeway

In the case of Commonwealth v. Salter, the Pennsylvania Superior Court issued a non-precedential decision that discussed how police may use field sobriety tests. A copy of their decision is here.

This is a case that originated in York County, and it overruled a thoughtful and excellent decision by Judge Richard K. Renn of the York County Court of Common Pleas.  A "non-precedential" decision may not be cited in other cases, though it is instructive in helping to inform lawyers how the appellate courts are thinking about and viewing legal issues. 

In this case, a local police officer made a traffic stop because a driver had a license plate light that was not illuminated. The officer made a vehicle stop and, after suspecting alcohol consumption, had the driver perform the standard battery of field sobriety tests (walk and turn, horizontal gaze nystagmus, and one leg stand) as well as a test called the "Romberg balance test" (though the Superior Court called it the "Rhomberg balance test").

There were two issues raised in the case, and the first dealt with the license plate light issue, which I am not discussing. The Superior Court's discussion of the field sobriety test issue begins on page 7 of the opinion.

Judge Renn found that the police officer lacked probable cause to arrest the suspect based on the testimony offered at a suppression hearing, including substantial amounts of testimony related to field sobriety testing.

Here is the basic factual summary of what happened after the driver was stopped by the officer:

"the officer . . . “noticed an odor of intoxicating beverage emanating from inside the vehicle.” Along with the smell, Officer Sheaffer observed [Appellee]’s eyes were glassy and bloodshot, which prompted him to ask [Appellee] how much she had had to drink. [Appellee] admitted that she had two glasses of wine. . . . At this point, the officer asked [Appellee] to submit to four field tests . . . After [Appellee] performed all four tests, Officer Sheaffer placed [Appellee] under arrest for driving under the influence of alcohol."

The important information we learn from the Superior Court comes from its disagreement with Judge Renn's decision on this issue:

We now address the second part of the trial court’s conclusion: the irrelevance of the field sobriety tests for purposes of establishing probable cause. The trial court discounted the officer’s observations of Appellee’s performance of the field sobriety tests because the officer could not articulate, to the trial court’s satisfaction, the significance of Appellee’s deviation from the field sobriety standards. The trial court also doubted the reliability of these tests, and the unstandardized way they are administered by police officers.

 The Superior Court panel then discussed at length that a driver need not fail field sobriety tests to be arrested. The opinion further describes the field sobriety tests as ones which are not standardized. Perhaps the record in the lower court was faulty, but the field sobriety tests administered by the officer in this case in fact *are* standardized. The National Highway Traffic Safety Adminstration ("NHTSA") has funded many studies and has produced multiple standardized training programs and manuals designed to ensure that certain field sobriety tests are done in a precise manner.

In fact, these tests (walk and turn, one leg stand, and horizontal gaze nystagmus) are called "standardized field sobriety tests" ("SFSTs") precisely because they are...standardized. The purpose is to make sure that tests are done in a manner consistent with the validation studies which NHTSA claims tend to support their admissibility and use as evidence in court.  The training materials for teaching these tests uniformly call for no deviation from the required protocols because that invalidates the use of any supporting studies that give scientific credence to tests.  Rather than SFSTs being mere witch doctoring, NHTSA claims that the SFSTs can demonstrate with some limited accuracy whether someone is more likely to be impaired than not, and they realize that letting officers deviate from those standards jeopardizes the claimed scientific validity of the tests themselves.

For decades, NHTSA and law enforcement have coordinated to try to increase the reliability and document some level of evaluating impairment using SFSTs.  It looks like they wasted their time. In fact, the Salter decision reminds me a little of the "Witch" scene from Monty Python's Holy Grail:

With a wave of the hand, the Superior Court panel in the Salter case essentially tells law enforcement: "Don't bother -- you don't need to follow the required scientific protocols for SFSTs. You can make up your own SFSTs and if the defendant looks drunk-ish, you have the right to arrest him."

One fortunate aspect of the Salter decision is that it is non-precedential so it cannot be relied upon by other judges in other cases in Pennsylvania. Still, when preparing your DUI case for a suppression hearing (to claim your arrest was illegal, for instance), the kind of thinking that was exhibited by an appellate court in Salter is important to know about. A solid record must be created in the trial court explaining the scientific grounds that led to the initial acceptance of standardized field sobriety testing. The Commonwealth knows it does not need to explain that, so it is up to the defense to establish why testing must be done in following the very specific rules for the tests.  In addition to showing that the SFSTs were not done to protocol, the defense now has to educate judges at trial (and appellate) courts as to why failures of police to follow protocols have important evidentiary consequences.

[Updated February 8, 2016: Following the publication of this blog post, the trial judge in this case, the Hon. Richard K. Renn, petitioned the Superior Court to make this a "reported case" rather than a non-precendential memorandum opinion. The Superior Court's regrettable decision in Salter can now be cited by the prosecution in Pennsylvania.

The standardized field sobriety tests that NHTSA spent years trying to obtain scientific credibility and validity for will now be misapplied and misused with significantly fewer restrictions in Pennsylvania. It now matters less if police officers do not follow the carefully crafted criteria that were designed to make the tests uniform, repeatable, and predictable. This case essentially means that the Superior Court will not hold police to the standards of the tests that law enforcement designed, tested, and trained police to use. We are back to the "Monty Python" days of, "Does the defendant look drunk?"]