The mere smell of alcohol, albeit, “strong” smell, is a sufficient factual basis for a police officer to continue to detain a citizen and investigate a suspicion of driving under the influence of alcohol by performing field sobriety tests:

… [We] nevertheless hold that such an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle. A police officer need not suspect that a motorist’s blood alcohol content is above or below a certain numerical limit before conducting roadside sobriety tests. Rather, he merely must have a reasonable suspicion that the motorist has consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle. In order to confirm or dispel such reasonable suspicions, we hold that a police officer may instruct a motorist to perform roadside sobriety tests.

Rizzo, supra at 161

Standardized field sobriety tests (“SFST”) must be performed by a police officer correctly. “… [In]correct administration … le[ads] to inaccurate interpretation of the results … ” and use of an inaccurately administered test in an affidavit for a search warrant for a blood sample is “at least reckless disregard for the truth” and is a basis to suppress any resulting evidence. People v Mullen, 282 Mich App 14, 24 (2008) In fact, any false statements of fact by the police officer in the affidavit as to the officers’ instructions on the SFSTs, the accused responses, failure to distinguish standardized factors, or other misrepresentations, are a basis to suppress evidence arising from a warrant based on such an affidavit. Id.

In Mullen, the Michigan Court of Appeals affirmed the trial court’s striking of all of a police officer’s SFSTs for a search warrant affidavit, to include his administration of a horizontal nystagmus test, for failure to follow the National Highway Transportation Safety Administration (“NHTSA”) Standardized Field Sobriety Testing manual. Id. at 25

In Michigan, police officers obtain certification from the Michigan Commission on Law Enforcement Standards (“MCOLES”). MCL 28.609a   The commission promulgates administrative rules and administers the education, training, and protocols for Michigan police officers. MCL 28.609   MCOLES adopted the NHSTA SFST standardized test battery for field sobriety testing and police officers are required to be trained in proper administration of the SFSTs.[1]

 SFSTs are composed of only three tests:

1. horizontal gaze nystagmus (HGN)
2. walk-and-turn (WAT)
3. one-leg stand (OLS).

SFSTs do not include other commonly seen “tests” for sobriety such as counting backwards, saying the “ABCs” without singing, or touching the end of one’s nose. Hence, the validity and underlying methodology on non-NHSTA SFSTs is not generally accepted within the scientific community, and frankly, amounts to police “Voodoo” and cannot be admitted under MRE 702. See e.g., Craig ex rel. Craig. v Oakwood Hosp., 471 Mich 67, 80 (2004)[2]

Additionally, the NHTSA SFST training manual[3] expressly provides that the tests are only “valid” when “administered in the prescribed standardized manner.” Further, it provides that “if any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id.

[1] MCOLES Basic Training Curriculum and Training Objections, pgs. 437-438k (2010)

[2] “Thus, in determining whether the proposed expert opinion was grounded in a “recognized” field of scientific, technical, or other specialized knowledge as was required by MRE 702, a trial court was obligated to ensure that the expert opinion was based on accurate and generally accepted methodologies. The proponent of expert testimony bears the burden of proving general acceptance under this standard.” Craig ex rel. Craig v. Oakwood Hosp., 471 Mich. 67, 80 (2004)

[3] NHTSA DWI Detection and Standardized Field Sobriety Testing Student Manual, VIII-19 (“NHSTA DWI manual”)