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FIELD SOBRIETY TESTING – MORE THAN MEETS THE EYE

admin — Thu, 13 Dec 2007 18:03:34 +0000

Almost all DUI investigations include having a California DUI suspect
perform various balance and coordination tests. These tests are
referred to as field sobriety tests or FST’s. The theory behind
these tests is that they test a person’s ability to divide
attention. Driving is portrayed as a divided attention
task. One has to both operate the automobile and also pay
attention to other cars, pedestrians, and traffic controls on the road.
There are several FST’s. The most common are the horizontal gaze
nystagmus, walk and turn, one leg stand, Rhomberg balance, finger to
nose, alphabet, and number count. Only three of these tests, the
horizontal gaze nystagmus, walk and turn, and one leg stand are
recognized by the National Highway Traffic and Safety Administration
(NHSTA) as having a statistical validity. These three tests are
called Standardized Field Sobriety Tests (SFST’s)
The horizontal gaze nystagmus test consists of the arresting officer
asking the DUI suspect to keep their head still and follow a stimulus
such as a pen or finger while the officer moves it in front of their
face. The officer is looking to see if the eyeballs jerk
involuntarily (nystagmus). This is the SFST that has the greatest
aura of scientific validity. However, in reality, it is junk
science. There are some people who have nystagmus
that is natural or caused by a medical condition. The arresting
officer can cause nystagmus by moving the stimulus too fast, holding it
out too long, or holding it too close to the suspect’s face.
Also, jerking motions by the arresting officer can cause
nystagmus. As a result, this test is rarely performed correctly
and properly by arresting officers.
The walk and turn is a deceptively simple test, but in reality it is
complex to administer. Giving the proper instructions and
demonstrating the test take practice and experience. Failure to
start the person off on the correct foot can sabotage the entire test
and set the person up for failure. Minor sins like raising arms
more than six inches for balance are counted against the test
subject. There are many places to make mistakes. Sober
people make many mistakes on this test given the complexity of the
instructions.
The one leg stand is the easiest test to administer, but for some
suspects, the hardest to perform. Being asked to place your hands
at your sides and balance on one foot while keeping the opposite leg
perfectly strait and look down at your feet can be hard to do by the
side of the road under the stress of a law enforcement detention at
3:00 in the morning. I had one trial where I asked the officer to
demonstrate this test. The officer struggled, shaking and hopping
before the jury. He failed the test, but said it was due to being
nervous in court. Why did the officer fail to give my client the
same excuse?
NHSTA’s manual claims that if the three SFST’s are performed correctly
and scored correctly, than they can have an accuracy rate of 91% for
predicting a BAC of .08 or above. These studies are of
questionable validity because they were all conducted by law
enforcement agencies under unrealistic control, sample and verification
conditions. It is important to emphasize that the 91% rate would
only apply in a perfect investigation where the tests were done
correctly. In the vast majority of cases, a good DUI defense
attorney can find the defects to help undermine the value of this
evidence in the prosecution’s case.
There are common misunderstandings of the role of FST’s. Many
people believe that FST’s can show impairment or prove that a suspect
has a certain blood alcohol level. The proper role of the FST’s
as testified to by the creator of the FST’s is to help the arresting
officer decide to arrest the DUI suspect and take the DUI suspect to
have a chemical test performed. That is really the only purpose
for FST’s. Nevertheless, many prosecutors and others continue to
insist that the test performance on its own is sufficient for
conviction.
It critical for the DUI defendant to obtain a DUI lawyer who
understands the proper role and weaknesses of field sobriety tests and
can effectively communicate these issues to juries and judges.

Author Bio:
DUI Lawyer Kenton Koszdin of Los Angeles County, California DUI attorney
has helped many
people in Los Angeles and surrounding counties to save their drivers license and preserve
their driving privileges
from Drunk Driving Offenses
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THE REFUSAL CASE

admin — Thu, 13 Dec 2007 17:59:00 +0000

When a California DUI suspect refuses to take a chemical test,
both the DUI defendant and the prosecution are presented
with challenges and opportunities.
California has a law called the informed consent law of chemical
testing. What this means is that when you got your drivers
license, you agreed (although you probably did not realize it at the
time) that in exchange for the state giving you your drivers license,
you agreed to submit to a chemical test. This law means that the
state does not need a warrant or other court order to have you submit
to a chemical test.
If a DUI suspect is arrested and after arrest is given the opportunity
to take a chemical test such as a breath, blood, or urine test, and
refuses to take any chemical test, the DUI suspect will be charged with
an additional crime of refusing a chemical test.
The DUI suspect who refuses to take a chemical test gains some
advantages by refusing. The prosecution does not have a blood
level number to rely upon and has the more difficult job of proving
impairment as defined in California’s jury instructions. However,
this is of limited value.
Many DUI defendants are charged with refusal because at the time they
were asked to take a chemical test, the DUI defendant believed that
they had the right to speak to a lawyer. While this may be the
law in some states, it is not the law in California. This
mistaken belief has lead to many refusal cases.
In many DUI cases, the defendant agrees to take the voluntary field
sobriety tests while refusing to take the mandatory chemical
test. What this means is that in many refusal cases, the
prosecutor still has evidence of impairment through the officer’s
testimony about the DUI suspects performance on the field sobriety
tests.
Another common error DUI defendants make is to assume that by
submitting to the preliminary alcohol screening (PAS) test, that they
have satisfied their obligation to give a chemical test. In some
cases, under the right facts, this can be a winning argument.
However, in most cases, the refusal will still be charged.
Prosecutors and judges can be very hostile towards a DUI defendant who
has refused a chemical test. This hostility can be expressed in
increased jail time and extended alcohol education programs.
If the DUI defendant decides to go to trial and is found innocent of
the charge of driving while intoxicated, than the defendant can’t be
found guilty of refusing a chemical test.
During the trial, the Jury will be given an instruction that the act of
the DUI defendant refusing to take a chemical test is evidence that the
DUI defendant was conscious of his own guilt of the charge of
DUI. In some cases and before some jurors, this can pose a
significant challenge.
Given the challenges and risks to both the prosecution and defense,
many refusal cases are settled with some charge to the defendant.
In cases where the facts on impairment have been favorable or there
have been other defects in the prosecution’s case, I have been able to
obtain reductions to wet and dry reckless with a dismissal of the
refusal allegation.
It should be emphasized that persons under the age of 21 face very
severe penalties for refusing a breath test.
This article is not meant to advise anyone to refuse to submit to a
chemical test. I advise almost everyone that it is in their
interests to submit to a chemical test. This article is also not
a warranty of a result in your case. All cases are different.