When most people think of tests, they think of items like math tests and geography tests. On tests like these, if you do your homework and do your best, you will generally do fine. Furthermore, teachers grade these tests
in proportion to the student’s performance. They either give letter grades,
like A, B, and C, or number grades, like 95, 85, and 75.
At first, the DUI field sobriety tests may look like objective spelling tests. One might think that the FSTs are designed to measure driver performance, buy the FSTs are quite different. These tests are quite subjective. Two plus two is always four and George Washington is always the first President of the United States. But exactly what constitutes “heel to toe” on the heel-to-toe walk test is pretty much entirely up to the officer. Furthermore, these tests are not designed to grade driver ability. Rather, officers use the FSTs to support DUI arrests. Finally, officers do not grade FSTs proportionally. They only give out one grade: “pass” or “fail.” Guess which grade Cobb County drivers are most likely to receive.
One of the best ways to undermine FST evidence is not to attack the test performance itself, but the circumstances surrounding the tests.
Officer Training Level
Most officers attend periodic FST training seminars. The speakers are usually other police officers, so the training value is questionable. Moreover, many officers also “pick up tips” from fellow officers. It’s important to understand how much official training officers have, and how much unofficial training they have. The former has some value; the latter is pretty much useless.
Truth be told, it’s very difficult to discredit the officer’s training, except in one-off circumstances (e.g. the officer skipped her last training seminar). But that is not really the aim of these questions. Rather, a Marietta DUI defense attorney can establish just how poorly trained these officers are in matters like these. It’s important that the Cobb County jury understands this background.
Many times, an attorney plants the seeds for this argument during voir dire jury selection, waters the seeds during cross-examination, and reaps the crop during closing arguments. For example, a lawyer might ask the jury panel something like “Who thinks that information they learned recently is more reliable than information they learned years ago in school?” Then, the jury hears the officer say she’s been to three half-day training seminars in the past five years. In closing, the attorney points out the lack of FST training.
Did the Officer Administer Unapproved FSTs?
Unapproved field sobriety tests include the placing-finger-to-nose test, reciting-the-ABCs test, the highly-deceptive “What was the year of your first birthday” riddle test, and a few others. These tests are generally inadmissible in Cobb County court. These tests have almost no scientific backing, at least according to the National Highway Traffic Safety Administration.
But many officers administer these tests anyway. They’re nearly always administered before the three approved ones. The officer hopes to fatigue the defendant mentally and physically, so the defendant will do worse on the tests that count. If Sam runs a mile to warm up immediately prior to his three-mile race, he probably won’t do too well in the race.
If the jury does not see the unapproved tests in the video, which is likely, an attorney should ask something like “Did you administer any other field tests?” During re-direct examination, the prosecutor will probably use questions like this as an excuse to have this extraneous evidence admitted. So, an attorney must be ready.
Squad Car Lights
When officers make arrests, especially if the suspect is armed, they usually shout commands like “Freeze!” and “Don’t move!” and “Drop the gun!” all at the same time. This audio cacophony disorients the suspect and makes the person easier to subdue.
Squad car lights have basically the same effect. Blinking strobe lights often trigger flicker vertigo. Most people who experience this condition have symptoms like:
- Rapid blinking and rapid eye movements,
- Loss of muscle control, and
- Muscle rigidity.
All these symptoms directly affect the FST results. The rapid eye movements skew the horizontal gaze nystagmus test results. And, the loss of motor skills affects a person’s ability to walk a straight line or stand on one foot.
Police officers sometimes make accommodations for people with medical or other conditions. But they almost never turn off their flashing squad car lights.
Medical Condition
Most officers make accommodations for people with serious injuries or medical conditions. For example, paraplegics obviously cannot complete the walking-a-straight-line test.
But any medical condition or prior injury might affect performance on the FSTs. Head injuries are a good example. Most people who sustain head injuries have difficulty concentrating for many months after the injury. So, even if the defendant’s head is not bandaged, the head injury may impair FST performance. That’s especially true since both the walk-and-turn and one-leg-stand are specifically designed to measure concentration ability.
The same thing applies in the horizontal gaze nystagmus test. Many people have a lazy eye, which is a form of nystagmus, and do not even know it.
Shoes
Changing out of high-heel shoes or flip-flops is not an option if the weather is cold or wet. Even if the weather is dry, walking barefoot on pavement is not a good idea, especially in the dark. Other shoes, such as cowboy boots, may also affect the walk-and-turn.
On a similar note, sometimes the officer’s instructions with regard to shoes and clothing are a little vague. The officer’s definition of a heel-to-toe step may be different than the defendant’s definition. Of course, the officer’s interpretation is the only one that counts, at least for probable cause purposes. Furthermore, some officers count off for things like clinging to shorts for balance. But if the officer doesn’t say these things are against the rules, how does the defendant know to avoid this behavior?
Contact a Hard-Hitting Lawyer
When the defendant takes field sobriety tests, the deck is stacked in the officer’s favor. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Convenient payment plans are available.
