Once you are asked to exit your vehicle during a DWI investigation, the first thing the officer usually does is ask you to perform field sobriety testing. These are a series of subjective tests of which your “pass” or “failure” depends upon the officer’s opinion of how you performed. (Some people think they passed the tests with flying colors, only to read the police report later and find that the officer thinks they failed.)
While there are several field sobriety tests (finger to nose, alphabet, counting backwards, etc.), there are only three Standardized Field Sobriety Tests. These are the Walk and Turn, the One Leg Stand, and the Horizontal Gaze Nystagmus tests. In referring to these tests as “standardized”, it means they must be administered and evaluated in the same way every time. The officer must explain and demonstrate each test and must observe the correct clues, which are different for each test.
Even when the tests are explained, demonstrated and evaluated perfectly, they are still NOT 100% valid. The Walk and Turn test is only 68% valid in estimating a Blood Alcohol Content of a .08% or higher. The One Leg Stand test is only 65% valid in estimating a Blood Alcohol Content of a .08% or higher. The HGN test has been ruled inadmissible in New Jersey Courts for the purposes of proving that someone is under the influence because it is not scientifically reliable.
Before a police officer asks you to perform the tests, there are several factors that he needs to consider:
He should first ask you if you have any injuries or disabilities that would prevent you from doing the test. This is referred to as a Medical Clearance. If you have back or leg problems, you may not be physically able to perform the test.
Are you more than 50 pounds overweight? If so, these subjects may have difficulty performing the tests and the results will be compromised.
Are you 65 years of age or older? Validation studies show that people 65 and older have a difficult time completing the tests.
What type of shoes were you wearing? If someone is wearing high heels over 2 inches, flip flops, sandals, or boots that rise above the ankles, they should be given the opportunity to remove those shoes before starting the tests.
According to the NHTSA training manual, the tests should be performed on a well-lit, dry, flat, hard, non-slippery surface. If the ground does not meet these criteria, the tests could be compromised.
A skilled driving while under the influence attorney will have training in Standardized Field Sobriety Testing comparable to that of the police officer that tested you. And he will be able to use this training to determine what the officer did wrong and how best to use the officer’s mistakes to defend you against the results of the field sobriety testing.
Stephen Lukach III, esq., is admitted to practice law in New Jersey and Pennsylvania. He concentrates his legal practice in the areas of DWI and Criminal defense.
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