DUI INFORMATION:     A Defense Attorney's Approach

DUI Field Sobriety Test (FST) These tests are often referred to as such, or may be called exercises or simply observations. The laws of the different states split on this. However regardless of what you call them, they are poorly conceived tests intended to determine physical impairment, not the presence of alcohol. While it is inappropriate to become too detailed in this informational program, what follows is a very brief description of some of the most common FST's. It is the driver's choice whether to take them or not. If you do, you will probably fail them, sober or not. Remember, in many jurisdictions these tests are video taped. The results will be presented to the judge or jury. Usually the driver will fare better if there is video tape rather than rely upon a LEO's recollection of what transpired. a. Finger to Nose: This is one of the older tests which is commonly used to determine the presence of alcohol. It is useless in that endeavor. It is not recommended for use by most reputable authorities and the results of such a test are subject to a brutal cross-examination by an informed and prepared DUI attorney. The precise manner that you are instructed to perform it makes it virtually impossible to do it without much practice. b. Counting: This test has no value to determine the presence of alcohol or impairment. The subject is called upon to count forward or backwards, by ones, two, threes, etc., by the LEO as his/her whims dictate. Sometimes the counting is done on fingers or knuckles; it wouldn't be surprising to learn of a request to include toes as well. Not only are there Miranda problems, there are more basic scientific problems. This is an outmoded, silly test. c. Alphabet: Reciting the alphabet is an extremely popular test that LEOs believe will identify drunkards. There is of course, no scientific basis for that conclusion. There are many reasons why an individual might make a mistake on the alphabet. As easy as it may seem, things are quite different when you are ordered out of your vehicle, required to recite (without singing) an exercise that you haven't performed in a decade or more, not to mention being faced with lights flashing, cars zooming by, scared to death and playing children's games. Obviously, there are many of us who have not had anything to drink and especially under stress, can make a mistake. What do you think happens when you are convinced you recited it perfectly and the LEO says you made some mistakes? Think about that in all of these tests! d. Walking a Line: This more modern test requires one to walk straight line, heel touching toes, taking nine steps up, pivoting in a designated manner and walking back nine steps, all the time looking at your feet and counting to yourself. Yeah, right! If you fail this test you will not be home for breakfast. Any slight deviation is scored against you as a mistake. "This test is almost always given on a surface that is neither clean nor level, whereas streets are always poured on a pitch (angle) so that water will run off. It's often windy, both from the elements and passing cars. There are often small rocks, pieces of roadway, large cracks and oil spots abound. The test attempts to test normal faculties by making you walk, in an abnormal way and under abnormal circumstances. What silliness. It would be funny if it were not so serious. e. Horizontal Gaze Nystagmus (HGN) This is an eye test that is described by the lovers of FSTs as the most accurate of them all. The test consists of the subject focusing on the tip of a pen or light, holding his/her head steady, and moving one's eyes horizontally to a given spot. When the eyeball shows nystagmus (jerking motion) the officer would determine the angle of nystagmus and accurately ascertain the amount of alcohol consumed by the driver. Apart from the fact that some people have a natural nystagmus that is always present and indistinguishable from that caused by alcohol, the idea that it can be quantified to expose the amount of ethanol consumed is very doubtful. Add to that the "test" is administered at roadside, not in an ophthalmologist's wind- proof office with devices that can accurately measure angles while restraining the movement of the head, the administration of the test is clearly unsatisfactory. f. One-Leg Stand Any subject who cannot stand on one leg with the other raised straight out about six inches off the ground and count out loud for thirty (30) seconds had better get ready to bond out of jail. As with the other tests, there is nothing that should make you believe this test is reliable. Even its proponents would not rely upon it to make an arrest. No one has any idea how many sober people can properly perform it, I suggest that very few can, when they have dealt with all the requirements added by the LEO. Conclusion: We could add to this list a standing sobriety test, a finger count, picking up your license or coins, etc. All nonsense! An experienced DUI attorney should be able to deal with each of these observations.

		Content provided by Richard J. Essen, Esquire. Our practice is confined primarily to the defense of DUI cases "We protect your rights"  info@richardessen.com
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