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FIELD SOBRIETY TESTING - MORE THAN MEETS THE EYE

Almost all DUI investigations include havingmistakes. Soberpeople make many mistakes on
a California DUI suspectperform variousthis test given the complexity of
balance and coordination tests. These teststheinstructions.
arereferred to as field sobriety tests or
FST's. The theory behindthese tests is thatThe one leg stand is the easiest test to
they test a person's ability toadminister, but for somesuspects, the hardest
divideattention. Driving is portrayed as ato perform. Being asked to place your handsat
divided attentiontask. One has to bothyour sides and balance on one foot while
operate the automobile and also payattentionkeeping the opposite legperfectly strait and
to other cars, pedestrians, and trafficlook down at your feet can be hard to do by
controls  on  the  road.theside of the road under the stress of a law
enforcement  detention  at
There are several FST's. The most common are
the horizontal gazenystagmus, walk and turn,3:00 in the morning. I had one trial where I
one leg stand, Rhomberg balance, fingerasked the officer todemonstrate this test.
tonose, alphabet, and number count. OnlyThe officer struggled, shaking and
three of these tests, thehorizontal gazehoppingbefore the jury. He failed the test,
nystagmus, walk and turn, and one leg standbut said it was due to beingnervous in court.
arerecognized by the National Highway TrafficWhy did the officer fail to give my client
and  Safety  Administrationthesame  excuse?
(NHSTA) as having a statistical validity.NHSTA's manual claims that if the three
These three tests arecalled StandardizedSFST's are performed correctlyand scored
Field  Sobriety  Tests  (SFST's)correctly, than they can have an accuracy
rate of 91% forpredicting a BAC of .08 or
The horizontal gaze nystagmus test consistsabove. These studies are ofquestionable
of the arresting officerasking the DUIvalidity because they were all conducted by
suspect to keep their head still and follow alawenforcement agencies under unrealistic
stimulussuch as a pen or finger while thecontrol, sample and verificationconditions.
officer moves it in front of theirface. TheIt is important to emphasize that the 91%
officer is looking to see if the eyeballsrate wouldonly apply in a perfect
jerkinvoluntarily (nystagmus). This is theinvestigation where the tests were
SFST that has the greatestaura of scientificdonecorrectly. In the vast majority of cases,
validity. However, in reality, it isa good DUI defenseattorney can find the
junkscience. There are some people who havedefects to help undermine the value of
nystagmusthat is natural or caused by athisevidence  in  the  prosecution's  case.
medical condition. The arrestingofficer can
cause nystagmus by moving the stimulus tooThere are common misunderstandings of the
fast, holding itout too long, or holding itrole of FST's. Manypeople believe that FST's
too  close  to  the  suspect's  face.can show impairment or prove that a
suspecthas a certain blood alcohol level. The
Also, jerking motions by the arrestingproper role of the FST'sas testified to by
officer can causenystagmus. As a result, thisthe creator of the FST's is to help the
test is rarely performed correctlyandarrestingofficer decide to arrest the DUI
properly  by  arresting  officers.suspect and take the DUI suspect tohave a
chemical test performed. That is really the
The walk and turn is a deceptively simpleonly purposefor FST's. Nevertheless, many
test, but in reality it iscomplex toprosecutors and others continue toinsist that
administer. Giving the proper instructionsthe test performance on its own is sufficient
anddemonstrating the test take practice andforconviction.
experience. Failure tostart the person off on
the correct foot can sabotage the entireIt critical for the DUI defendant to obtain a
testand set the person up for failure. MinorDUI lawyer whounderstands the proper role and
sins like raising armsmore than six inchesweaknesses of field sobriety tests andcan
for balance are counted against theeffectively communicate these issues to
testsubject. There are many places to makejuries and judges.



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