The “Finger Count Test” in DUI Investigations

The DUI finger count test is a non-standardized field sobriety test (FST).  Law enforcement officials administer the test in order to determine whether a DUI suspect is under the influence of alcohol and/or drugs.¹

During the administration of the finger count test, the DUI suspect is to:

• Put one hand in front of him/her with the extended palm facing upward.
• Have the top of the thumb then separately touch the tip of the index, middle, ring and little finger.
• Count out loud, “ONE, TWO, THREE, FOUR” in relation to each finger-thumb connection.
• Reverse the process, completing a total of three complete sets.²

During law enforcement’s administration of the finger count test, officers usually keep in mind the following five factors when determining whether or not a suspect is intoxicated and/or impaired.

• Ability to follow instructions
• Ability to count correctly
• Ability to touch each finger separately and in the correct sequence
• When the subject starts and stops the test
• Performance of the correct number of sets.³

The finger count test has not been approved by the National Highway Transportation Safety Administration (NHTSA).

This means that law enforcement officials are not required to follow any particular procedures nor look for any exact indicators of impairment when administering the finger count test.

This lack of a strict set of guidelines adds unevenness and imprecision within the testing process. Any experienced criminal defense attorney should therefore be able to expose these glaring holes in the DUI investigation process.

In the article below, our California DUI lawyers will explain:

1. Field Sobriety Tests & DUI Investigations

2. Finger Count Test Instructions

3. Finger Count Test Clues

4. Finger Count Test Reliability

You may also find it particularly useful and informative to visit our page on Field Sobriety Tests in DUI cases.

1. Field Sobriety Tests & DUI Investigations

There are a total of three NHTSA standardized field sobriety tests. The finger count test is not one of them. The three standardized FSTs are as follows:

• the horizontal gaze nystagmus test (HGN),
• the walk and turn test, and
• the one-leg stand test⁴

These three tests are nationally “standardized” because they are part of a series of government-approved scientific studies that have all confirmed a statistically significant correlation between the tests and DUI impairment.⁵

Non-standardized FSTs such as the finger count test are often used by law enforcement to assist in their DUI investigations.

Particularly, along with the finger count test, other non-standardized FSTs used by law enforcement to detect whether or not a suspect is driving under the influence include:

• the hand pat test,
• the Rhomberg balance test, and
• the finger to nose test.

As exposed and dissected by our California DUI defense lawyers in subsection four, the finger count test is not necessarily an effective test in determining whether or not a driver is impaired.

2. Finger Count Test Instructions

The finger count test instructions are tailored around having a DUI suspect divide his/her attention between various mental and physical tasks.⁶

Below are the instructions that are normally given by law enforcement officials, including those from the California Highway Patrol (CHP) and the Los Angeles Police Department (LAPD), when conducting the finger count test.

However, because there are no standard guidelines for administrating the finger count test, the instructions below may differ substantially from one law enforcement official to another.

STEP 1:

Start by instructing the DUI suspect to stand with his/her feet together and arms to his/her sides. Instruct the DUI suspect not to begin until told to do so.

STEP 2:

When told to do so, the suspect should extend one hand directly in front of him/her. Open the hand with the palm facing upward

• Have the suspect open his/her hand with the palm facing upward

STEP 3:

Instruct the suspect to touch his/her index finger with his/her thumb while simultaneously counting out loud, “ONE.”

• The suspect’s thumb should then touch the middle finger and the subject should count out loud, “TWO.”
• The suspect’s thumb should then touch the ring finger and the subject should count out loud, “THREE.”
• The suspect’s thumb should then touch the little (pinky) finger and the subject should count out loud, “FOUR.”

STEP 4:

Have the suspect then reverse the process.

• The suspect’s thumb should then touch the little (pinky) finger and the subject should count out loud, “FOUR.”
• The suspect’s thumb should then touch the ring finger and the subject should count out loud, “THREE.”
• The suspect’s thumb should then touch the middle finger and the subject should count out loud, “TWO.”
• The suspect’s thumb should then touch the index finger and the subject should count out loud, “ONE.”⁷

STEP 5:

Have the suspect complete two more complete sets, with one set including the suspect counting up and back down.

• Ensure that the suspect understands these instructions.⁸

3. Finger Count Test Clues:

Predictably, several of the same skills needed to operate a vehicle are tested with the Finger Count DUI field sobriety test. These exercises and tasks include:

• Processing of information
• Decision making
• Steady reactions
• Clear vision
• Short-term memory
• Small muscle control
• Finger and hand coordination.
• Clear vision⁹

As a result, law enforcement officials are able to detect multiple indicators of driver impairment when a suspect performs the finger count test.

In particular, California law enforcement officials frequently consider the below-mentioned 6 “clues” in determining whether or not a driver is impaired.

CLUE 1: The suspect starts too soon

If the suspect starts the test prior to being instructed to do so, then this head start may be deemed an indicator of impairment.

CLUE 2: The suspect’s ability to follow instructions

If someone is intoxicated, then they may not have the ability to follow each and every one of the instructions given by law enforcement. This should then translate into the suspect failing to perform the test correctly.

CLUE 3: The suspect does not count as instructed

Clearly, if the suspect forgets to count or does not count in proper numerical order, then the investigating officer may score this as a clue that the driver is intoxicated.

CLUE 4: The suspect does not touch his/her fingers as instructed

The officer will likely look for whether or not the suspect is correctly touching/counting each finger separately with his/her thumb.

CLUE 5: The suspect does not perform the correct number of sets

The suspect must perform no less and no more than three complete sets of the finger count test. If he performs less than three or attempts to do more than three, then an officer may score this as a clue that the suspect is under the influence of alcohol and/or drugs.

CLUE 6: The suspect stops too soon

If the suspect stops the test prior to being instructed to do so, then this early termination of the test may be deemed an indicator of impairment.¹⁰

4. Finger Count Test Reliability

As noted earlier, the finger count test has not been studied or approved by NHTSA.

This means that there are no federal government-approved studies to quantify the exact extent of its accuracy and/or reliability in determining whether or not a particular subject is impaired.

Additionally, the methodological administration of the finger count test may significantly vary from one police officer to the next.

As a result, when considering not only the inherent flaws of the test itself, but as well as its fluctuating administration by California police officers, the accuracy/validity of the finger count test is highly questionable.

Nicole Valera, a Rancho Cucamonga DUI lawyer¹¹ is recognized among her peers and clients as one of the premier DUI attorneys in the country. Attorney Valera is well experienced in detecting and subsequently exposing any mistakes on the part of law enforcement during their administration of field sobriety tests.

In terms of the finger count test, particular defects ripe for exposure by Ms. Valera and our other California DUI defense lawyers include:

1. Non-Standardized Testing:

Given the lack of NHTSA approved guidelines to aid officers in the administration of the finger count field sobriety test, a great deal of subjectivity lingers amid each officer’s determination of whether or not a particular suspect is impaired.

2. Neurological Defects:

If a driver has inherent mental problems, sleep deprivation, injuries or illness that would obstruct his/her ability to understand instructions, then the test results may be deemed invalid.

3. Non-Alcohol Related Causes of Coordination Failures:

The lack of correct finger-to-thumb placement/synchronization that law enforcement officials monitor during testing may in fact be due to causes other than alcohol. Some of these causes include seizure medications and a myriad of barbiturates.

4.   External Disturbances:

Officers should not have the suspect perform the test amidst roadside distractions. If any beeping, blinking lights, and/or a countless list of other potential audial/optical distractions surround the test, then any performance failures during the testing process may be deemed unrelated to alcohol and/or drugs.

5. Improper/Incorrect Instructions:

Law enforcement officials should instruct the DUI suspect of the proper finger-to-thumb placement and numerical sequence. If the police officer fails to properly inform the suspect on how to perform the test, then the entire testing process may be deemed invalid.

Call Us For Help…

Call us for help.

If you or a loved one is charged with a DUI and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

References:

¹ California Highway Patrol (December 2007). Memo Re: HPM 70.4. Driving Under the Influence Enforcement Manual. The finger count test was among one of the six optimal field sobriety tests studied by SCRI during their 1977 scientific research of FSTs. Although not considered a standardized field sobriety test, the finger count test is nonetheless recommended by NHTSA as an additional test that officers may administer to assist their DUI investigations.

² Id., Experienced California officers have indicated that the finger count test is an efficient and effective field sobriety test in spite of the fact that the finger count test has not been tested under federal government-approved scientific conditions.

³ Id.,

⁴ U.S. Department of Transportation “DWI Detection and Standardized Field Sobriety Testing” NHTSA Student Manual (February 2006).

⁵ Please see Stuster &Burns, Validation of the Standarized Field Sobriety Test Battery at BACs Below .10 percent. U.S. Dept. of Transportation Rep. No. Dot-HS-808-839 (1998), at 33; Burns & Moskowitz, Psychophysical Tests for DWI Arrest, U.S. Dept. of Transportation Rep. No. DOT-HS-802-424 (1977) (recommended the three-test battery of one-leg stand, walk and turn, and HGN to aid officers in discriminating BAC level); Anderson, Schweitz & Snyder, Field Evaluation of Behavioral Test Battery for DWI, U.S. Dept. of Transportation Rep. No. DOT-HS-806-475 (1983) (field evaluation of the field sobriety test battery (HGN, one-leg stand, and walk and turn) conducted by police officers from four jurisdictions indicated that the battery was approximately 80% effective in determining BAC above and below .10 percent).

⁶ California Highway Patrol (December 2007). Memo Re: HPM 70.4. Driving Under the Influence Enforcement Manual.

⁷ Id.,

⁸ Id.,

⁹ Id.,

¹⁰ Id.,

¹¹ Rancho Cucamonga DUI lawyer Nicole Valera is a highly experienced DUI attorney who is qualified by NHTSA to administer field sobriety tests, in connection with DUI roadside investigations. Attorney Valera practices in San Bernardino County and the San Gabriel Valley, including Rancho Cucamonga, Fontana, West Covina, Pomona, Alhambra and Pasadena.