Attacking the Field Sobriety Tests in a DUI Case
The process of undermining the field sobriety tests in a DUI case often begins before police officers administer the three approved tests. Officers often begin with unapproved tests, such as the head-back, eyes-closed balance test or the reciting-the-ABCs test. Usually, officers force defendants to perform these tests so the subjects are fatigued, mentally and physically, when the real tests begin. In court, the state must prove that intoxication, not fatigue or anything else, caused the defendant to lose his/her normal mental or physical faculties.
The process doesn’t stop there. The scientific support for the three approved field sobriety tests is shaky, at best. As a result, a Leesburg criminal defense lawyer often effectively undermines the field sobriety test evidence. If that happens, the judge could throw the case out of court due to a lack of evidence or a lack of probable cause. More likely, however, the process puts a Leesburg criminal defense lawyer in the driver’s seat during pretrial settlement negotiations. Such negotiations resolve more than 90 percent of criminal cases.
Horizontal Gaze Nystagmus
Officers often lead with the DUI eye test because it resembles a health and safety test. So, the compliance rate is high.
In a controlled environment, a follow-my-finger test accurately spots nystagmus, a condition also known as lazy eye. But roadside HGN tests are not conducted under controlled conditions. For example, flashing squadcar light in the background causes flicker vertigo, a vision condition that often skews HGN results.
Additionally, alcohol isn’t the exclusive cause of eye nystagmus. In fact, it’s not even the leading cause. A childhood brain injury is the leading cause of eye nystagmus. Usually, the symptoms are so mild that most people don’t know they have this condition until someone administers a test.
Largely because of these issues, many Loudon County judges only allow prosecutors to use HGN test results for limited purposes.
Heel to Toe Walk
Concentration issues often affect the second test in the three-test battery. At this point, most defendants know they’re in trouble. Since they’re thinking about jail release and what’s coming next instead of listening closely to HTW instructions, they often “fail” this test on technical grounds, such as:
- Beginning the test before the officer says “start,”
- Leading with the wrong foot,
- Losing count of their steps,
- Putting their hands in their pockets to assist balance, and
- Ending the test before the officer says “stop.”
This test has physical issues as well. Most people can only walk a straight line heel to toe with their arms at their sides if they’re wearing athletic shoes. The test is almost physically impossible if the defendant is wearing sandals, flip-flops, cowboy boots, or dress shoes.
One Leg Stand
Physical and mental fatigue is a serious issue in the final test of the three-test battery. Many people simply cannot listen to directions or physically perform the test, especially if they have any mental or mobility impairments whatsoever.
Failure to follow instruction clues include lifting the wrong foot or lifting the correct foot at the incorrect angle. Physical issues include swaying during the test or using hands or arms for balance.
Police officers invariably testify that defendants “fail” all three tests, even if they perform almost flawlessly. Fortunately, jurors decide for themselves who “passed” and “failed” these tests, and a jury’s conclusion is the only one that counts.
Connect With a Tough-Minded Loudoun County Lawyer
There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. We are not satisfied with anything less than the best possible resolution under the circumstances.
Source:
nhtsa.gov/sites/nhtsa.gov/files/2024-09/16412-2023_SFST_Refresher_Participant_Manual-tag.pdf
