According to police officers, it’s impossible to pass one of the three FSTs approved by the National Highway Traffic Safety Commission. Fortunately, the arresting officer’s biased opinion on whether the defendant passed or failed a field sobriety test is not the last word in the case.
The jury has the last word in these cases. Unlike most police officers, most jurors give defendants some margin for error. To most people, a 70 percent success rate is poor, but nevertheless a passing grade. Furthermore, before the jury gets the last word, a Marietta criminal defense lawyer has an opportunity to advocate for the defendant. As the old song goes, this advocacy usually includes accentuating the positive (what the defendant did right) and eliminating the negative (what the defendant did wrong).
Horizontal Gaze Nystagmus
Most people can follow HGN test directions, and the physical pass/fail result is often unrelated to alcohol or drug intoxication.
Police officers often point out that intoxicated people cannot follow directions, such as “hold this leg up” and “walk heel to toe.” Almost everyone follows the directions in the HGN test, a/k/a the DUI eye test. The defendant simply must stand in one place and follow a light with their eyes without moving their heads.
Medically, police officers almost never eliminate other possible causes of nystagmus (lazy eye), such as:
- Abnormal brain or inner ear development,
- Optic nerve disorders,
- Cataracts, strabismus, and other eye defects,
- Stroke or brain injury,
- Multiple sclerosis,
- Inner ear disorders (e.g., Meniere’s disease),
- Certain medications (e.g., anticonvulsants, sedatives),
- Eye infection,
- Thyroid disease,
- Vitamin B12 deficiency,
- Vestibular system disorders,
- Head trauma,
- Labyrinthitis (inflammation of the inner ear),
- Benign paroxysmal positional vertigo (BPPV),
- Cancer, and
- Optokinetic Reflex Nystagmus (ORN, which is a condition caused by staring at moving objects, such as moving lights).
That last bullet point may be the most important one. Since most police officers have never heard of ORN and cannot explain it to jurors, the officer appears unable to effectively grade the HGN test. Furthermore, the HGN test can cause HGN.
A few of these alternative causes are environmental. But most are deeper eye problems, neurological conditions, or inner ear (vestibular) problems.
Since so many conditions other than alcohol intoxication could cause nystagmus, a Marietta criminal defense lawyer can easily put forth a reasonable alternative theory (e.g. Mike’s childhood brain injury may have caused his nystagmus). Because the HGN test result is so iffy, many Cobb County judges only admit its results for limited purposes.
Heel to Toe Walk
The tests get harder as the three-test battery progresses. Difficult tests set defendants up for failure.
In this test, subjects must elevate one leg off the ground and stand on one leg without swaying, stumbling, or using their arms for balance. This test also measures mental acuity and the ability to follow instructions, like which leg to lift and at what angle.
Putting a positive spin on the physical HTW performance is much like putting a positive spin on the HGN test. Many conditions, aside from intoxication, cause nystagmus. Likewise, many factors, aside from intoxication, could cause a defendant to stumble or lose balance during a HTW test.
- Fatigue: Usually, the HTW test is the second or third FST. By this time, most defendants are physically and/or mentally fatigued. That’s especially true if, as is usually the case, the arrest happens late at night and the officer forced the defendant to perform unapproved warm-up tests, like the reciting-the-ABCs test.
- Nervousness: Officers usually led with the HGN test because the compliance rate for that test is very high. When they get to the HTW or one-leg stand test, defendants catch on to the fact that the officer is about to make a DUI arrest. We get nervous just thinking about that.
- Footwear: Most people cannot walk heel to toe in cowboy boots, flip flips, high-heel shoes, penny loafers, or anything other than athletic shoes. On a related note, people with mobility impairments or similar medical issues cannot walk heel to toe if they’re drunk, sober, or anywhere in between.
Attention to detail is important in these situations. Sometimes, officers tell subjects how long to hold their legs up. Other times, the time period is completely random. The officer basically has the subject hold his/her leg up until s/he starts losing balance. Then, the officer testifies that the defendant “failed” the test.
One-Leg Stand
The one-legged stand test is a physical sobriety test used to assess a defendant’s balance and coordination, as well as the defendant’s mental acuity and ability to follow directions.
At the outset, officers usually offer some limited accommodations in this test. For example, they usually let women who are wearing high-heel shoes remove them. Now, we know that these limited accommodations don’t go nearly far enough. Just like it’s almost impossible to walk a straight line heel to toe in any footwear besides athletic shoes, the OLS test is almost unpassable in non-athletic shoe footwear.
As the defendant performs the test, officers often highlight minor technicalities and trump them up like they were major issues. These technicalities include things like elevating the wrong leg, elevating the leg for fourteen-and-a-half seconds instead of fifteen, and swaying when lifting the leg.
Additionally, fatigue and nervousness are really setting in at this point. Normally, when officers administer these tests, they go straight from one to another without any breaks. So, by the end of the test battery, the defendant is physically and mentally fatigued. Additionally, defendants aren’t thinking about tests at this point. They’re thinking about jaiI release, job issues, what will I say to my wife/husband, and other “what comes next” issues.
This analysis brings up another important point. In many DUIs, the prosecutor can prove the defendant “failed” the OLS, HTW, an HGN tests. But in most cases, the prosecutor cannot prove why the defendant failed these tests, whether it was alcohol intoxication or something else. In this context, the why is much more important than the how.
Poor performance on the FSTs is not solid evidence of intoxication. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
