The Finger to Nose Test in Boating While Intoxicated Prosecutions

Hello everyone,

This is the fifth in a series of blog-posts addressing the unusual "Pond Olympics" known as "Afloat Field Sobriety Tests", which are performed by boaters immediately prior to their arrest for "boating while intoxicated" or "boating under the influence". As you will see here and in my prior posts on this topic, these "tests" usually consist of all or part of the following 6-part medley of exercises:

1. The "alphabet test".

2. The "25 to 1 Count"

3. The "Finger Count"

4. The "Palm Pat"

5. The "Finger to Nose"

6. The "Horizontal Gaze Nystagmus/Vertical Gaze Nystagmus" test

The first five have no scoring system. The sixth has a system of "points" viewed through jaundiced eyes by most people who are not directly interested in convicting people of DWI or BWI. So far, in this 6 part series, I have reviewed the exercises called the "Alphabet Test", the "Count 25 to 1 Test", the really weird "Palm Pat Test" and the parlor trick known to marine law enforcement people as the "Finger Count Test". Today we'll look at an old police favorite: the "Finger to Nose test".

If you haven't been arrested on a boat, you probably haven't ever had to touch your nose with your eyes closed while floating on a boat. When the National Highway Traffic and Safety Administration ("NHTSA") considered which "field sobriety tests" with which to cobble together its standardized field sobriety test battery, the "finger to nose test" was one of the six tests it considered. Although it is unlikely that NHTSA has met many ways to convict a driver that it didn't like, the "finger to nose test" floats so far into the twilight zone of unreliability that even NHTSA didn't adopt it for "standardized field sobriety testing". NHTSA jettisoned this exercise after studying officers administering it to hundreds of drivers that the officers knew were drunk. The test is so unreliable that the "results" were erratic even under those testing conditions. Do you think it's more reliable on a rocking, floating boat than they it is when the driver is standing on the pavement?

There is no objective scoring system; it's completely up to the cop whether the driver is arrested. There is no point scoring system, grading scale, or scorecard for this subjective exercise. It is entirely up to the whim of the officer on a lake or pond whether to arrest some one after this ritual. Given the political pressure to jack up the number of Driving While Intoxicated ("DWI") and Boating While Intoxicated ("BWI") arrests, how many people are let go after these tests, which have no scoring system? Not many!

This is the fifth of the 6 part "floating battery" of tests performed on citizens unfortunate enough to be stopped for "random", "routine" or "safety" stops. I will be focusing on the remaining exercise, the "horizontal gaze nystagmus test" or "HGN test" in ca oming post.

Have a safe weekend, and arm yourself with the knowledge of your rights as to whether you HAVE to play a starring role in the "Pond Olympics" BEFORE you are asked to do them. Check with a lawyer in your state who defends people accused of driving while intoxicated (DWI), driving under the influence (DUI), operating under the influence (OUI) , boating while intoxicated (BWI) and boating under the influence (BUI).

If you are in New Hampshire and have questions regarding DWI, DUI, OUI, or boating while intoxicated please feel free to call me at 603-893-0074.

All the best,

Mark Stevens
5 Manor Parkway
Salem, NH 03079




1 comment:

  1. Thank you Mark for your comment on my lense and I'm glad you found the Criminal Law section useful...

    All the best,