The oldest law enforcement on-scene investigative tool is the administration of field sobriety exercises. There was a time before 1995 that they were referred to as "tests." However, that changed as a result of some work I did attempting to exclude their use by police altogether. I am Carlos A. Canet, South Florida DUI defense attorney.
As a Fort Lauderdale DUI attorney, in 1994 I became aware that there was a research psychologist at the Clemson University that had been doing work with local counsel attempting to mythbust FSE's. The gentleman's name was Spurgeon Cole. Dr. Cole has taken a detailed look at the research that had been done around FSE's and had written a paper discrediting their use in DUI investigations. The research he looked at had been done by the Southern California Research Institute located at the U.C. Berkley. This group was headed by a couple of research psychologists, Drs. Marceline Burns and Benjamin Tharp, who would later become legends in the field of DUI investigations. The SCRI had managed to get a grant from the federal government though the National Highway Traffic Safety Administration (NHTSA) to study the use of field sobriety exercises by cops investigating DUIs.
Their initial studies were done in 1977, 1979 and 1981. All three studies identified and later approved certain exercises as being the most reliable. These were the horizontal gaze nystagmus, walk and turn and the one leg stand. All three studies had major flaws as pointed out by Dr. Cole.
In 1995, I filed a motion based upon Dr. Cole's research to exclude all field sobriety exercises from trial evidence in Broward County. Much to the chagrin of the State Attorney's Office that motion was granted. It was granted in part based upon my cross examination of Dr. Marceline Burns. While on the witness stand it became apparent that Dr. Burns had symbolically exchanged her lab coat for a police uniform and in doing so sacrificed any scientific integrity she may have had. Some of her answers to my questioning was classic. For example, when I challenged a slight increase in dismal reliability scores for horizontal gaze nystagmus from one of her studies to the next, she responded, "Its getting there."
That case eventually went up on appeal and became the seminal opinion in State v. Meador. Since the Meador opinion there has been much developement in this area, including the change in terminolgy noted at the begining of this post. And more importantly, the split in jurisdictions over the use of the horizontal gaze nystamus at trial. And of course, the developement of the DRE investigative protocols.
