I-Team: Feds defend DUI tests criticized in I-Team report

CINCINNATI - The federal agency that created the field sobriety tests used by police agencies around the country is responding to criticisms of those tests raised in an I-Team report.

Defense attorneys and an expert who tested the field tests told the I-Team in this initial report that they’re “designed to fail” because even sober people often can’t comply with the instructions to walk a straight line or lift a foot in the air while counting out loud. (See original report at http://www.wcpo.com/dpp/news/local_news/investigations/i-team-dui-tests-inaccurate.)

"This is not a natural position for human beings. The reason we have our legs side by side is so we maintain balance so we don't fall over,” said MJ Donovan, a defense attorney who served as a Cincinnati police officer before getting her law degree. She said she used the field sobriety tests and sometimes, “got it wrong.”

Dr. Spurgeon Cole, an expert in the field sobriety tests, agreed with Donovan. Dr. Cole said he conducted lab tests as a professor at Clemson University, testing trained police officers who used the field sobriety tests on subjects to determine if they were drunk. Dr. Cole says police were wrong 46 percent of the time.

The I-Team contacted the National Highway Transportation Safety Administration (NHTSA) weeks ago to ask questions about the test the agency developed in the 1970s. After a series of emails, the agency sent a statement today that concluded:

“Drunk driving is against the law and one of the leading causes of death and injury on America's roads – claiming a life every 51 minutes in 2010. The Standardized Field Sobriety Testing program was developed by NHTSA and law enforcement officials to increase deterrence of DWI violations, and reduce the number of crashes, deaths and injuries caused by drunk drivers. The program combines officer training with scientifically valid field tests to identify possible drunk drivers."

The statement did not address criticisms that even sober people fail.

It’s a topic Judge Mark Painter knows well. He spent 27 years hearing cases involving inebriated drivers first on the municipal bench, then on the court of appeals. He wrote the book “Ohio Driving Under the Influence Law.”

Judge Painter said he finds the tests valid but not scientific.

“They're not the end-all of everything. It's not scientific,” he said. “Just because somebody can't walk a straight line, there may be many reasons they can't walk a straight line. Most people are not very good at it no matter whether they're drunk or not."

Painter said the problem lies not only with drivers' various physical abilities and agility, but also with officers' interpretation. Different officers can look at the same driver going through the motions of the tests and reach opposing conclusions, especially in borderline cases.

"Is it foolproof? Certainly not,” said Painter. “Nothing that involves human endeavor is foolproof, but I'd rather have the test than not have the test… I wouldn't be in favor of throwing them out.”

Painter said the tests are valid in that they add to the mix of other clues officers use to decide whether to arrest someone for driving under the influence.

“It would be much better certainly if we had a scientifically valid and researched way to (test people)," he said. But Painter added he doubts one can be developed because different people react differently to alcohol.

For now he says the only answer lies in using as many clues as possible beyond the field sobriety tests, then let a judge or jury decide, while the public continues to debate the issue.

"It's a topic of conversation certainly,” he said. “Especially in bars."

The State of Ohio has gotten involved with OVI tests in question too. Their Intoxilyzer tests have been called into question by a West Chester attorney, who claims the state redacts information as part of a cover up. Read that whole story and the state's response at http://www.wcpo.com/dpp/news/9-news-confronts-state-of-ohio-about-embattled-ovi-breath-test-machine-critic-claims-cover-up.