After the eye examinations have been completed, the DRE officer will move on to the next steps in the investigation. Those steps include what are known as “psychophysical tests.” As with last week, this step of the evaluation is actually a series of other steps amalgamated into one.
For the psychophysical tests, the goal is to measure impairment of the ability to drive by assessing the individual’s physical and cognitive condition. But rather than a proper cognitive assessment, which you can find here, the test evaluates cognitive ability through trickery. Similarly, as we will see below, the physical aspects of the test are confusing in and of themselves and are extremely difficult for anyone to perform after age 30. You’ll see why as we break them down.
The four tests that are preformed at this stage of the evaluation are the Modified Romberg Balance Test, the One Leg Stand, the Walk and Turn, and the Finger to Nose test.
Modified Romberg Balance Test
The thinking behind the Romberg Balance Test is that balance requires two of three functions: vision, vestibular function (which is provided by the inner ear), and perception of the orientation of your arms and legs, known as proprioception. And so where a person is not able to balance properly using two of these functions it may indicate intoxication.
Of course, it may also indicate a neurological condition like a brain injury, or something more serious.
The goal of the DRE officer is to test the balance of the driver by administering this test. And in order to see whether a person can balance, the officer will then eliminate the usual functions that are relied on to keep balance. Yes, the factors that assist in keeping your balance are intentionally compromised by the DRE officer, to see if you have balance problems.
Feel free to practice doing this in your home to see how difficult it is, even when you are sober.
The DRE officer will ask the driver to stand with feet together, head tilted back, and eyes closed. So already, your feet are out of position. No one with normal balance stands with their feet together. Having one’s feet shoulder width or so apart is part of balance. That, in and of itself, eliminates the proprioception. Tilting the head back also causes problems, as it disrupts the position of your inner ear fluid, compromising your vestibular function. And closing your eyes impacts your vision.
Remember how I said you needed two of those three functions to keep balance? All three are affected in some way by the test.
The modification to the Romberg Balance Test is that the officer also asks you to count until thirty seconds has elapsed. The idea is that this is also assessing your cognition. Your ability to count to thirty seconds is supposed to determine whether you have impaired cognitive abilities.
Except you have no field of vision, you’re doing this with your head tilted back, and your feet together. As in, you’re doing all of this while trying to maintain your balance. To top it all off, you’ve been arrested and hauled into a police station. You are with people you don’t know and most people, in that situation, are really starting to wonder whether they can trust the big man with the gun who is saying they are impaired by drugs. So, it’s a stressful situation that is distracting mentally. Can you focus on a thirty-second count in your head while also trying to stay standing and when there are strangers with guns who think you are on drugs surrounding you? Oh, did I forget to mention that? The officer will too. You need to count in your head.
The police are looking for the following so-called indicia of impairment. These are known as clues. Each of the four tests in this section have clues associated with them. The clues are: swaying, eyelid or body tremors, whether you accurately estimated thirty seconds, muscle tone, sounds, statements, and your ability to follow directions. One trick common to these four tests is that the officer will read the directions but will tell the person at the beginning not to start until he says to do so. Many people start right away. That is considered an inability to do the test.
But if you’ve ever seen the 3-2-1-Go gimmick in Guy’s Grocery Games, you know that high-stress situations (like a cooking game show) can cause people to misunderstand or improperly follow directions.
Walk and Turn Test
I first learned to do this test when I received in Standardized Field Sobriety Test Certification. At the time I was under 30, had never suffered a concussion or head injury, and was in relatively good physical condition. I also like to consider myself a reasonably intelligent person.
Alas, I have never been able to perform this test correctly. And there’s a reason for that: it is designed to make you fail it.
The Walk and Turn test sounds simple in its description: take nine heel-to-toe steps forward, pivot on your foot, and take nine heel-to-toe steps backward, all on an imaginary line. But also, count out loud while you take the steps. And don’t use your arms to balance. And don’t step off the line that you cannot see. And don’t start until I tell you to start. And don’t let your heel not touch your toe, but also don’t step on your own foot or you’ll lose your balance and step off the line.
Unlike the other tests, the officer puts the person in the starting position at the outset of the test. So before starting the walking and turning session, the officer makes the subject stand with one foot in front of the other, heel touching the toe, on the imaginary line, with their hands at their sides, as the DRE officer continues to explain the whole test.
Totally simple, right?
The turn is some type of fantastical turn seemingly out of an America’s Next Top Model challenge. Actually, I think I saw the exact turn in an ANTM episode but after twenty-something cycles I can’t find the clip on YouTube.
There are seven clues that the police look for on the Walk and Turn Test. They are balance during the instruction phase; starting too soon; stopping while walking; touching heel to toe; using the arms to maintain balance; loss of balance while turning; and taking an incorrect number of steps.
And guess what – only two clues are necessary for the officer to come to the conclusion that you are impaired. So a little stumble or a lift of your arms, and the DRE officer is counting this test against you. Like the other tests, this test is designed to ensure that you do not perform well.
One Leg Stand
Did you like counting to thirty in your head? Well for the one-leg-stand test you also get to count to thirty but this time out loud. Yes, the manner of counting is changing so that you can be fooled into counting wrongly this time around.
The OLS is probably the most simple of the four tests at this stage. And that’s saying a lot. All the driver is required to do is stand on one leg, with their foot six inches off the ground, arms at their sides, and count out loud by thousands to thirty. But remember what I said earlier about the faculties that assist in maintaining balance?
The One Leg Stand eliminates your proprioception. In theory, you should be able to balance with just your vestibular functions and your vision. But in practice this is not always so. Try it yourself right now.
The thing about balance is that it is an ongoing exercise. We don’t balance perfectly as though planking suddenly became a thing again without using our arms and legs. And again, people do not normally stand on one leg with their foot six inches off the ground, and their arms at their sides.
It boggles my mind that in order to test whether a person is impaired from their norm, police ask them to engage in physical tests that test something that is not the norm. Why not just have a person walk straight down a line, using their arms and legs as usual? Why not just have a person stand still while asking them information about their identification (which they are obligated to provide) to see if they sway or stumble? Wouldn’t that better identify impairment?
In the infinite wisdom of the DRE Program however, the impairment of abnormal activities is evidence of impairment of the normal activities as well.
Remember too that balance can be impacted by all sorts of other factors. Your footwear can impact your balance. Ever tried to stand on one foot in stiletto heels? People who have suffered knee or leg injuries, who have arthritis or joint problems, and people with head injuries, can all exhibit balance problems that have nothing to do with drugs or drug impairment. There is no step in the test that asks the officers to do a bone scan or check for injuries to the limbs.
Finger To Nose Test
This is perhaps the most tricky of all the tests. You’ve probably practiced touching your finger to your nose, having seen this on television. But the test as it is administered on television dramas is a far cry from what the DRE officer will have a person do that the detachment.
Rather than simply making sure your finger hits your nose as you face forward, the test is more complex. The driver is required to tilt their head back (remember how that plays a role in balance and proprioception), stretch both arms out like a crucifix, and close their eyes. Already, since you’ve read this far in the post, you can see how this too is designed to make the driver fail the test. Each part of the setup is designed to eliminate the factors that affect balance and spatial awareness.
As for the actual act of touching the nose, the touch only counts if the very tip of the finger (the end, near where your fingernail departs from your skin) meets the very tip of the nose. If the pad of your finger touches your nose, that’s not good. If you hit the side of your nose, the touch doesn’t count.
And the DRE officer will tell the driver which hand to use. Even that is designed to trick a person. The DRE officer sets up a pattern: left, right, left, right but then deviates from the pattern to test whether the driver is capable of making that adjustment. Even for a sober person, the mental act of breaking a pattern is difficult. And our bodies naturally work toward rhythm and pattern, so the test is designed to prey on pre-existing biology.
In all, these tests are clearly designed to obtain false results that then tip off whether a person is impaired – regardless of actual impairment. And the best part about this series of psychophysical tests is that they are not effective at identifying cannabis impairment. Instead, the tests are only designed for the purposes of looking for alcohol. It is unclear why they are even a part of the DRE evaluation when they are not drug-specific.
Check out the first post in this series here. And catch up on last week’s here. And watch out for a new post every Thursday until legalization.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.