| Almost all DUI investigations include having | | | | mistakes. Soberpeople make many mistakes on |
| a California DUI suspectperform various | | | | this test given the complexity of |
| balance and coordination tests. These tests | | | | theinstructions. |
| arereferred to as field sobriety tests or | | | | |
| FST's. The theory behindthese tests is that | | | | The one leg stand is the easiest test to |
| they test a person's ability to | | | | administer, but for somesuspects, the hardest |
| divideattention. Driving is portrayed as a | | | | to perform. Being asked to place your handsat |
| divided attentiontask. One has to both | | | | your sides and balance on one foot while |
| operate the automobile and also payattention | | | | keeping the opposite legperfectly strait and |
| to other cars, pedestrians, and traffic | | | | look 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, finger | | | | asked the officer todemonstrate this test. |
| tonose, alphabet, and number count. Only | | | | The officer struggled, shaking and |
| three of these tests, thehorizontal gaze | | | | hoppingbefore the jury. He failed the test, |
| nystagmus, walk and turn, and one leg stand | | | | but said it was due to beingnervous in court. |
| arerecognized by the National Highway Traffic | | | | Why did the officer fail to give my client |
| and Safety Administration | | | | thesame excuse? |
| | | | |
| (NHSTA) as having a statistical validity. | | | | NHSTA's manual claims that if the three |
| These three tests arecalled Standardized | | | | SFST'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 consists | | | | above. These studies are ofquestionable |
| of the arresting officerasking the DUI | | | | validity because they were all conducted by |
| suspect to keep their head still and follow a | | | | lawenforcement agencies under unrealistic |
| stimulussuch as a pen or finger while the | | | | control, sample and verificationconditions. |
| officer moves it in front of theirface. The | | | | It is important to emphasize that the 91% |
| officer is looking to see if the eyeballs | | | | rate wouldonly apply in a perfect |
| jerkinvoluntarily (nystagmus). This is the | | | | investigation where the tests were |
| SFST that has the greatestaura of scientific | | | | donecorrectly. In the vast majority of cases, |
| validity. However, in reality, it is | | | | a good DUI defenseattorney can find the |
| junkscience. There are some people who have | | | | defects to help undermine the value of |
| nystagmusthat is natural or caused by a | | | | thisevidence in the prosecution's case. |
| medical condition. The arrestingofficer can | | | | |
| cause nystagmus by moving the stimulus too | | | | There are common misunderstandings of the |
| fast, holding itout too long, or holding it | | | | role 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 arresting | | | | proper role of the FST'sas testified to by |
| officer can causenystagmus. As a result, this | | | | the creator of the FST's is to help the |
| test is rarely performed correctlyand | | | | arrestingofficer 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 simple | | | | only purposefor FST's. Nevertheless, many |
| test, but in reality it iscomplex to | | | | prosecutors and others continue toinsist that |
| administer. Giving the proper instructions | | | | the test performance on its own is sufficient |
| anddemonstrating the test take practice and | | | | forconviction. |
| experience. Failure tostart the person off on | | | | |
| the correct foot can sabotage the entire | | | | It critical for the DUI defendant to obtain a |
| testand set the person up for failure. Minor | | | | DUI lawyer whounderstands the proper role and |
| sins like raising armsmore than six inches | | | | weaknesses of field sobriety tests andcan |
| for balance are counted against the | | | | effectively communicate these issues to |
| testsubject. There are many places to make | | | | juries and judges. |