2000 NHTSA Phase I

Appears to be drunk replaced by appears to be impaired[1]. Phase II

No noticeable differences. Phase III

This is the first version of the manual to come out after the three newest validation studies. Accordingly, the manual goes through the studies, somewhat, and flaunts the reported high success rate[2]. The flaws in the studies are discussed further in this chapter. Note, however, NHTSA again claims the studies validate whether a driver is impaired. Again, the studies have never validated that. The studies only deal with a specific BAC (which happens to change depending on what NHTSA is trying to do). Interestingly, in reference to the San Diego Study, the manual reports HGN can provide valid indications to support arrest decisions at 0.08 and strongly suggests that it can provide valid indications of 0.04 and above[3]. (If you look at the robustness study, HGN also provides indications of .02 and above. Pretty much any alcohol can cause a nystagmus). One can argue it is almost useless to determine a BAC at .04. But, you can be sure to point out in cross examination that HGN provides indicators of .04 (half the legal limit) according to NHTSA. HGN

In regard to medical conditions, the manual states in bold: “Note: if suspect has an obvious eye disorder or an artificial eye, HGN should not be administered[4].”

This version of the manual teaches the HGN the same as it is presently administered. Distinct nystagmus has been replaces with district and sustained nystagmus at maximum deviation. Further, the officer must hold the stimulus for at least 4 seconds[5]. Further, the officer is warned that if the stimulus is held for 30 seconds that fatigue nystagmus can become present[6]. If the officer forgets about the sustained part, it is possible he was trained prior to this 2000 version, and never got a refresher course. Or, just as likely, he doesn’t know what he is doing. Walk and Turn

In this version, the validated clue for improper turn has been modified. The subject no longer needs to take both feet off the line[7]. Again, NHTSA just changes so called standardized tests (not in the driver’s favor) and validated clues without stating what research and evidence supports the change.

In regard to test conditions, NHTSA notes “Recent field validation studies have indicated that varying environmental conditions have not affects a suspect’s ability to perform this test[8].” However, later in the manual, NHTSA states: “Examples of conditions that may interfere with suspect’s performance of the Walk-and-Turn Test: wind/weather conditions.”[9]

Unfortunately, NHTSA did not specifically cite to the evidence of the study (or to which study they are reffering to), so it is harder to dispute. In my opinion, too many DWI lawyers got Not guilty verdicts related to those imaginary lines.

Now, instead of being 3-4 feet away and remaining motionless, the officer just has to be a safe distance away, for the officer’s safety of course[10]. It does not matter that NHTSA previously stated that it was because being too close or excessive motion makes it difficult for sober people to do.

In regard to people who may have difficulty performing the test, NHTSA finally gave the subject a break, and people with leg “problems”, instead of leg “injuries”, may have difficulty performing the test[11]. But, the standard used to be that the test is not necessarily valid. So, on one hand NHTSA giveth, and on the other NHTSA taketh away. One Leg Stand

The clues and scoring for the OLS remain the same.

However, like the WAT, 3-4 feet has been converted to a safe distance, but the officer has to remain motionless[12]. Oddly, in this test, the environment still matters and NHTSA did not try to claim it doesn’t, like they did for the WAT. But, it no longer needs a smooth surface. Just, a reasonably dry, hard, level, non-slippery surface. Also, lighting is no longer important.

[1]Id at V-4

[2]Id at VIII-2-3

[3]Id at VIII-3

[4]Id at VIII-5

[5]Id at VIII-7


[7]Id at VIII-11

[8]Id at VIII-12

[9]Id at VIII-18

[10]Id at VIII-12

[11]Id at VIII-12

[12]Id at VIII-14