Skeleton Cross of Arresting Officer Who Administered FSTs
by Dustin Nimz

Hayhurst CX
7 
Why were you called in to administer the test? 
7 
What condition was Paige in when you first met her? Was she injured? Did you ask? 
7 
Aren’t you supposed to ask about injuries? 
7 
You mirandized her correct? Did you tell her that she did not have to do the tests like you told her she didn’t have to speak with you? 
7 
Did you ask Paige if she had sustained any head, neck, back, or leg injuries? Aren’t you supposed to ask about those injuries before administering the tests because they can affect the outcome? 
7 
When you were trained in the academy did they teach you about report writing? 
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Why is it important to write a good report? 
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Do you remember what you ate for breakfast that morning? It is important because you can’t remember everything after a long time, right? 
7 
What was Paige’s demeanor the night you performed these tests? 
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Is it common for someone to be annoyed when they have been arrested? 
Intoxicated? 
7 
Did you feel that Paige was intoxicated ? 
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What was that based on? 
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What are those lines on the wall of that jail room for? Does it help you observe if there is swaying on video? 
7 
Did Paige sway as she was listening to you give the instructions? I don’t see any swaying on the video. Would you like to watch it to refresh your memory? 
7 
When we talk about the SFST what does it mean to you that the tests are standardized? 
HGN 
7 
What is HGN? 
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So anyone that presents with nystagmus is automatically intoxicated in your view? 
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What else can affect nystagmus? 
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Is there more than one type of nystagmus? Can it occur naturally? 
7 
When Paige told you that her eye was blacked, did you follow up to see if she was injured? 
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So you don’t know if she sustained any head injury that night? 
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Would that information have affected your decision to go forward with your tests? Would they still be valid? 
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Let’s go through the HGN 
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How many passes do you do, total? 
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What is the first set of passes? And those should be approximately 2 seconds out and two seconds back, right? 
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What are the next two passes? And those should be approximately 2 seconds out and two seconds back, right? 
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The next pair of passes check for nystagmus at maximum deviation, right? How long should those passes take? 
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And what is the last set, and how long should it take you? 
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Let’s add all that up. I get to do the full test should take you at least 80 seconds, but you only take 48 seconds for the entire test. 
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The test has to be done in a specific manner of the manual says that it is not a valid test, doesn’t it? So this test is invalid? 
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Did you perform a vertical nystagmus test? 
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What was the result? 
W&T 
7 
Tell me how you are supposed to conduct a W&T test. 
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Doesn’t your training tell you demonstrate three steps forward, then demonstrate the turn? But you take several more steps than that, don’t you? 
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Taking more steps than is required is a clue of intoxication on this test, isn’t it? 
7 
Were you intoxicated that night, Officer? 
7 
I didn’t think so, but it goes to show how these tests can be subjective and are merely clues in the context of the testing situation, right? 
7 
Taking an extra step doesn’t mean someone is intoxicated then, right? 
7 
I notice that you hold onto your legs or pants when you are demonstrating the test. Is this how the instruction should be performed? Is it how the test should be performed by the accused? 
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So once again, you weren’t intoxicated when you did that instruction, and hand position therefore does not mean that someone is intoxicated, right? 
7 
Paige’s jeans are up under her feet when she is doing this test, right? Almost to her toes? Is that the best condition to have her walking in? 
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There is supposed to be a “dry, hard, level, nonslippery” surface for her to perform the test in, right? So the floor is smooth and level, but what is under her feet is actually not, right? Could that affect the test? 
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Paige stood for a total of 53 seconds waiting for your instructions, correct? In a difficult position? 
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What clues did you observe? 
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Is that from your memory or from just now watching the video? 
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You only count the bad points, right? 
OLS 
7 
Can you explain the one leg stand test? 
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What clues did you observe? Was that from your memory or from the video? 
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On this test Paige stood with her feet together and her hands at her side and watched for directions for over one minute before the test, right? And she didn’t fall down or sway while waiting for you to give instructions? 
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And then she keeps her foot in the air for the entire 30 seconds? And the count she gets to doesn’t matter, just that you timed out 30 seconds? 
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Did you read her the following instructions (read from manual each instruction)? 
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In fact, your instruction was something like, “basically, you put your foot up in the air for 30 seconds,” wasn’t it? 
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The order of some of those questions is important, isn’t it? 
7 
Well you never told her that her arms needed to be at her side during the test, did you? 
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Did you correct her while she was doing the test? 
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Did you tell her to count by “Mississippis”? Because you gave no instruction on how to count, right? 
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You only count the bad points, right? 
Standardized Tests 
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When we talk about the SFST, what does it mean to you that the tests are standardized? 
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They were created in a clinical situation and designed to be performed in a specific way, aren’t they? 
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When these tests were created, they were made to verify that a person was over .10, right? And the tests have not changed, have they? 
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How can a test made to determine intoxication at .10 be used on a person with lower BAC? 
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And NHTSA, who standardized the tests, has studies showing that HGN can be detected a low as .04, can’t it? 
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And if they are administered improperly, the tests are invalid, aren’t they? 
7 
You performed a set of tests that were completely different from what have been tested and what you were trained to do . . . How can the results be compared with those of lab tests? 
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What kind of score would you receive in front of an SFST instructor if you were being graded on your performance? 
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When Paige told you that she had tried this test before while sober, what did that mean to you? 
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Did she ever say that she was drunk? 
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Did she say that she felt she was legally intoxicated? 
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Did she say that she had lost her mental or physical faculties? 
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It’s possible that she was saying that she had tried the tests without any kind of alcohol? 
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Sober can mean without any alcohol at all, right? 
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And the opposite doesn’t have be intoxicated. It can just be with some alcohol, right? 
Breath Test 
7 
Paige was already arrested for DWI when you met her, right? 
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In fact, she must be under arrest before she can be given a breath test, right? 
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What would you have done if Paige had taken the breath test and the machine told you her BAC was under .08? 
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Did you allow time for an observational period before requesting a breath sample? 
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How long is that period? 
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During that time did you ask her any questions about how much she had had to drink, when her last meal was, or when the last time she had been to sleep? 
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Those questions are supposed to be asked during the observational period in order to determine factors that may affect a person’s BAC, right? 
7 
Is anything allowed to come into contact with her mouth during the observational period? 
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Was she chewing gum, bleeding from the mouth, or touching her mouth during the observational period? 
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Those would all affect the performance of the machine, right? 
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In fact she repeatedly touched her hand to her mouth during the period. You could not have given a valid breath test anyway, could you? 
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