Must Field Sobriety Tests Follow Standards Prescribed by the National Highway Traffic Safety Administration?

The answer is somewhat unclear because so far no Michigan court has specifically ruled that police officers must administer standardized field sobriety tests in accordance with protocol set forth by the National Highway Traffic Safety Administration (NHTSA).  However, a new law was recently passed in Michigan that suggests that the legislature wants substantial compliance with the NHTSA standards.

The new law, with an effective date of September, 2016, reads as follows:
257.62a “Standardized field sobriety test” defined.

Sec. 62a. “Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.

A few Michigan cases have addressed certain aspects of this requirement, and overall those cases support the contention that standardized field sobriety tests much be administered in compliance with the NHTSA standard.

For example, one case[i] addressing just the horizontal gaze nystagmus, had this to say:

Since horizontal gaze nystagmus (HGN) test, when used to establish the presence of alcohol, had gained acceptance in the scientific community, prosecution was not required to present expert testimony concerning the validity of the test in prosecution for operating a vehicle while under influence of liquor.

Furthermore, this court indicated that the HGN test is one of three field sobriety tests recommended by the National Highway Traffic Safety Administration to aid officers in determining whether a driver is intoxicated. Regarding its admissibility, the court said that the HGN test, when used only to determine the presence of alcohol rather than the quantity of the amount present, not as “scientific evidence” but as merely another form of field sobriety testing.

The court then concluded by indicating that “because we agree the HGN test, when used to establish the presence of alcohol, has gained general acceptance in the scientific community and has satisfied the requirements of the Davis–Frye rule, the prosecution was not required to present expert testimony concerning the validity of the test and the trial court did not err in failing to conduct a Davis–Frye hearing. We conclude the only foundation necessary for the introduction of evidence regarding the HGN test in Michigan is evidence that the test was properly performed and that the officer administering the test was qualified to perform it.  In other words, in Michigan, if an HGN is properly administered, then it is admissible relative to the presence of alcohol.

Another court[ii] addressing this issue in Michigan involved the validity of a search warrant for blood that contained information about an improperly administered HGN test.  The question was whether, without the HGN information, the warrant was still supported by probable cause. The court found that it was appropriate to eliminate from the warrant the facts about the HGN because it was not administered according to the standardized protocol.

This is part of what the court looked at:

“While the standard distance for holding the stimulus when conducting the HGN test is 12 to 15 inches from the suspect’s face, the officer administering the HGN test could not recall the proper distance that he learned in training and held the pen only four to six inches from defendant’s face. The affidavit in support of the warrant indicated only that “nystagmus is present” without revealing that he had the stimulus too close to defendant’s eyes. The court found that “because nystagmus occurs naturally and is always present, the fact that the test had not been performed accurately was a significant omission in the warrant affidavit reviewed by the magistrate.”

This court essentially agreed with Berger that the HGN must be administered in accordance with the NHTSA standards, and even quoted them from the police training manual.  However, both cases stop short of indicating that substantial compliance is always required, and also, did not address the appropriate remedy when they are not.

So, the issue of whether field sobriety tests must follow the standards prescribed by the NHTSA remains an open question in Michigan. If you’ve been arrested in Michigan, and the standardized field sobriety tests were used as part of your investigation, then you should discuss this issue with your lawyer to determine if improperly administered tests might impact the validity of the arrest.

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[i] People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (1996).

[ii] People v. Mullen, 282 Mich. App. 147, 62 N.W.2d 170 (2008).