Walk and Turn. The police report reveals that the client stepped off the designated line on 12 of the 18 steps and raised both of his arms approximately five inches from his side for balance. Sounds pretty bad? Actually, the client passed the test.2 The client only exhibited one of the possible eight clues by stepping off the line. The number of times he stepped off the line does not count as an additional clue or a failure. As for raising his arms, the client was within the allowable six inches.
One-Leg Stand. The client failed to count out loud as instructed and put his foot down two times during the test. He put his foot down at the count of three and then at the count of 19. According to the officer, the client also failed this test. However, the DWI Detection & Standardized Field Sobriety Testing Student Manual disagrees.3 According to the prosecution's “bible” on field sobriety tests, the client also passed by exhibiting only one clue. Counting out loud is not part of the evaluation criteria on this test.
Horizontal Gaze Nystagmus. For those of you unfamiliar with nystagmus, it is an involuntary jerking of the eye.
The officer noted that the client exhibited four of six clues and therefore failed this test. The clues exhibited were a “lack of smooth pursuit” (two clues —one for each eye) and “distinct nystagmus at maximum deviation” (two clues— one for each eye). The officer correctly evaluated the client on this test. However, the fact that the client did not exhibit the third clue, “onset of nystagmus prior to 45 degrees,” would be significant in all cases and extremely significant in the above case. According to the Student Manual, a lack of nystagmus prior to 45 degrees would indicate a blood alcohol level of at or below 0.08%.4 In actuality, the absence of nystagmus
prior to 45 degrees likely indicates a blood alcohol level of 0.05% or less. This test result cannot be reconciled
with the breath test result of 0.13%. If investigation reveals that the tests were not administered properly, they are invalid. The Student Manual states the following in bold letters:
It Is Necessary To Emphasize This Validation Applies Only When:
- The Tests Are Administered In The Prescribed Standardized Manner
- The Standardized Clues Are Used To Assess The Suspect's Performance
- The Standardized Criteria Are Employed To Interpret The Performance
If Any One Of The Standardized Field Sobriety Test Elements Is Changed, The Validity Is Compromised.5
Without even examining any issues regarding the administration of the field sobriety tests, the administration of the breath test or the issue of operation, the state's entire case has been compromised through a cursory look at the police officer's version of the results of the field sobriety tests. Other thoughts on the facts:
• Even if the client was alone next to the vehicle after the crash and made a statement that he was driving, there may be insufficient evidence of operation for the government to meet its burden.
• Expert testimony would likely discount the reliability of the field sobriety tests because the recent accident may disqualify the client as a candidate for these tests.
• Unless the police can establish the time of the crash, the results of the field sobriety tests and breath test may be
irrelevant as to the client's sobriety at the time of driving.
• Six drinks ingested by a 200- pound male during the five hours prior to the breath test would place his blood alcohol content at approximately .04%, which is consistent with the results of the Horizontal Gaze Nystagmus
• If the client weighed 140 pounds and had two 12- ounce beers within one-half hour before the motor vehicle
stop, his blood alcohol level may have been under 0.08% at the time of the stop. Not surprisingly, the average criminal lawyer who has not had specialized training in DUI defense evaluation of the field sobriety tests may have recommended a guilty plea to the client after reading the police report. Such advice without further investigation would have been a mistake professionally and ethically. If you wish to educate yourself, the resources below will be a great place to start.
Various manuals include:
• DWI Detection and Standardized Field Sobriety Testing, National Highway Traffic Safety Administration
(1995 - 2006).
• Stuster, J.W., The Detection of DWI Motorcyclists, U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT-HS- 807-839, Washington, D.C. (1993).
In addition to the various manuals there are many written sources of information on these subjects that are not
state-specific. They include:
• Lawrence E. Taylor & Steven Oberman, Drunk Driving Defense, 6th Edition, Aspen Publishers (800-638-8437)
(supplemented annually) $160
• James C. Garriott, editor, Medical-Legal Aspects of Alcohol, 4th Ed. (2003), Lawyers & Judges Publishing Co. (800-209-7109) $129
• Donald H. Nichols & Flem K. Whited, Drinking/Driving Litigation: Criminal and Civil Trial Notebook, Thomson- West Publishing Co. (800-328-4880) (Five-Volume Set) (supplemented annually) $550
• Edward L. Fiandach, Handling Drunk Driving Cases, 2d (1995), Thomson- West Publishing Co. (800- 328-4880) (supplemented annually) $298
• Edward F. Fitzgerald, Intoxication Test Evidence, 2d Ed. (1995), Thomson-West Publishing Co. (800-328-4880) (supplemented annually)
NACDL members can order these publications at http://west.thomson.com. Use offer #512988 and
receive a 20% discount.
There are also numerous state-specific and general seminars offered around the country, including those cosponsored by NACDL and the National College for DUI Defense (NCDD). These more intensive seminars include:
• DWI Means Defend withIngenuity: Making Over Your DUI Practice, Las Vegas, Nev., October 12-14,
2006 at Caesar's Palace (three half-day sessions on various topics including field sobriety testing, breath and
blood testing, crossing the officer and much more; cosponsored by NACDL and NCDD) http://www.nacdl
• NCDD Winter Session, Tucson, Ariz., January 18-20, 2007 (sessions from 8 a.m. to 1:30 p.m.)
• Mastering Scientific Evidence, April 2007, Dallas, Texas
• NCDD Summer Session, July 2007 (three full days of intensive training with hands-on breakout sessions; seating is limited so it is best to register by January 2007)
To competently represent a client charged with DUI you must learn the new techniques and current technologies
unique to this area of criminal defense. DUI defense involves a complex combination of science and law that should not be initiated by those unwilling to treat the defense of this serious crime with the respect that it deserves.
1. In 2004, the National College for DUI Defense, Inc. Specialty Certification Program was approved by the American Bar Association to certify lawyers as specialists in the area of DUI Defense.
Currently, DUI specialization is recognized in at least 8 states, with several others pending approval. For more information, see http://www.ncdd.com/dsp_certification. cfm.2. U.S.Department of Transportation,
National Highway Traffic Safety Administration, DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING, STUDENT MANUAL, VIII-11 (2004).
3. Id. at VIII-13 - 14.
4. Id. at VIII-5.
5. Id. at VIII-19. n