What are Non-Standardized Tests?

Three DUI field sobriety tests, the walk-and-turn, one-leg stand, and horizontal gaze nystagmus tests, have the NHTSA stamp of approval as reliable indicators of alcohol and/or drug intoxication, at least for probable cause purposes (sufficient evidence to arrest the suspect). These tests, while theoretically reliable, aren’t always reliable for practical purposes. But that’s the subject of a different blog.

Incidentally, non-standardized tests may well be accurate, but there’s a difference between accuracy and reliability. Blind squirrels occasionally find nuts.

This post focuses on non-standard tests which are somewhat reliable, at best. When police officers force defendants to perform non-standard tests, a Leesburg criminal defense lawyer basically has two options. Sometimes, it’s best to exclude the tests and their results as legally unreliable. Other times, it’s best to allow them, and give prosecutors enough rope to hang themselves.

Romberg Balance Test

If police officers administer just one non-standard test, it’s usually the Romberg balance test. Officers order subjects to extend their arms, tilt their heads back, and close their eyes. If the subject’s balance is unsteady, the officer says the subject “failed” the test because the subject was intoxicated.

Sometimes, officers add some extras, such as forcing subjects to touch the tip of their nose with their index fingers, while keeping their heads back and eyes closed.

Romberg’s balance test has a long history, going back to its invention in the early 1800s. The test measures what the German neurologist Moritz Heinrich Romberg believed to be the three necessary elements for balance:

• Vision (which can be used to monitor and adjust for changes in body position),
• Proprioception (the ability to know one’s body position in space), and
• Vestibular function (the ability to know one’s head position in space)

Many police officers, and many Leesburg criminal defense lawyers as well, can’t explain concepts like proprioception and vestibular function to jurors. As a result, the officer comes across either as an incompetent peace officer or a robot who automatically does what s/he’s told to do.

Recite the ABCs

The officer asks the suspect to recite a portion of the ABCs without singing it (e.g. not saying w, x, y AND z). This test does measure the subject’s ability to follow directions and the subject’s memory. Alcohol consumption affects both these functions.

However this test has clear elements of racial and ethnic prejudice. Non-native English speakers could have significant issues with this test, especially if they’re nervous. Racial bias is such a hot-button issue for so many people that, even if the defendant “fails” the test, the officer usually looks bad.

Hand Pat

This unapproved test is, quite frankly, rather silly. The officer instructs the driver to extend one hand palm up and place the other hand palm down on top, then pat the bottom hand with the top hand while alternating the top hand’s palm position – facing up then facing down between pats – and counting out loud with each pat.

These directions are very complex, and officers usually don’t demonstrate the test. Anyone would get raddled during this test.

Trick Questions

These questions include “What was the year of your fifth birthday?” Think about that one before you answer.

Much like the hand pat test, the trick question test is rather silly, proves little or nothing about intoxication, and is clearly designed to mentally fatigue defendants, so they do worse on the tests that really count.

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. Virtual, home, and jail visits are available.

Source:

nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_ig_refresher_manual.pdf