The answer to this important question depends on who you ask. Police officers almost always testify that defendants “failed” the walk-and-turn and other approved FSTs, regardless of the defendant’s actual performance. Until recently, jurors almost always sided with police officer conclusions, no matter how tenuous they were. But police officer credibility recently hit an all-time low, which means most Cobb County jurors no longer give officers the benefit of the doubt.
The FSTs are usually critical in DUI cases. Chemical samples are only admissible if officers had probable cause to demand such samples. Poor performance on the FSTs almost always furnishes the necessary proof. If the defendant refused to provide a chemical sample, as is often the case, prosecutors must rely on the FSTs to prove intoxication beyond a reasonable doubt. In either situation, undermining the FST results significantly undermines the state’s case.
Some FSTs have very questionable scientific foundations. Others only produce reliable results under carefully controlled conditions. Therefore, a Marietta criminal defense attorney can often cast some doubt on the FST’s reliability. If this evidence is weak, there’s a good chance the judge could throw the case out of court, or a jury could find the defendant not guilty. As a result, a Marietta criminal defense attorney can often negotiate a favorable plea bargain.
Even though the National Highway Traffic Safety Administration has only endorsed three FSTs, which are outlined below, police officers routinely force defendants to take unapproved tests. Due to the lack of endorsement, many Cobb County judges do not allow jurors to consider these test results as they deliberate.
However, even if a judge has a track record of excluding unapproved tests, attorneys often give prosecutors enough rope to hang themselves. Issues regarding the Romberg balance test, one of the most common unapproved FSTs, are a good example.
The finger-to-nose, head back, eyes closed test is a lot more complex than it seems. Moritz Romberg, a German neurologist, invented this test in the early 1800s. It deprives subjects of the three things necessary to maintain balance:
- Proprioception (sense of movement, or the “sixth sense”),
- Vision, and
- Vestibular Apparatus (connecting balance with movement).
Many officers are unfamiliar with concepts like proprioception and vestibular apparatus. So, when they try to explain these things to jurors, they lose their credibility which, as mentioned above, is already thin.
Other unapproved tests include reciting part of the ABCs either forward or backward, counting backward, and answering trick questions, like “What was the year of your first birthday?” Your first birthday was the year you were born, and not the year of your first birthday party.
In many cases, the force defendants to take unapproved tests to wear them out physically and mentally so their performance is worse on the tests that really matter.
Horizontal Gaze Nystagmus
The DUI eye test has one of the highest compliance rates of all the tests. Therefore, officers almost always administer this one first. Typically, after the HGN test, officers ask defendants to take unapproved tests, then they move on to the two divided attention tests discussed below.
The HGN test is a neurological test as opposed to a sobriety test. If the subject’s pupil moves involuntarily at certain viewing angles, the subject most likely has nystagmus, a condition also known as lazy eye.
Alcohol intoxication is not the only cause of nystagmus. In fact, alcohol isn’t even the leading cause. Typically, a childhood brain injury or genetic defect causes nystagmus. Many people have a lazy eye, but the symptoms are so mild, they do not know they have one.
For these reasons, many Cobb County judges only allow jurors to consider HGN test results for limited purposes.
Moreover, as in all scientific tests, conditions impact the results. If officers administer roadside HGN tests, distractions like flashing police overhead lights in the background often skew the results.
As mentioned, the OLS is a divided attention test which measures the defendant’s cognitive and physical abilities. Under Georgia law, people are intoxicated if they have lost the normal use of their mental and physical faculties. Officers do not know what the defendant’s “normal” abilities are, so they have no yardstick. But that’s the subject of another blog.
Back to the FSTs. During the OLS, officers look for intoxication clues, such as:
- Beginning the test before the officer says “start,”
- Lifting the wrong leg,
- Holding the leg at the wrong angle,
- Using arms for balance,
- Moving the elevated leg, and
- Ending the test before the officer says “stop.”
By the time they take this test, many defendants are significantly fatigued. Therefore, almost everyone exhibits at least one clue. As mentioned, in most cases, one intoxication clue merits a failing grade, as far as most officers are concerned. Furthermore, if the defendant has any mobility impairments, it’s almost impossible to stand completely still on only one leg, whether s/he is drunk, sober, or somewhere in between.
Somewhat similarly, it’s almost impossible to walk a straight line heel to toe if mobility impairments are an issue. It’s also very difficult to successfully complete this test wearing anything other than athletic shoes.
Test conditions are significant as well. We mentioned the flashing lights above. Such lighting often causes flicker vertigo, a condition common among pilots and other people who look at flashing lights. Furthermore, officers usually instruct defendants to walk imaginary lines as opposed to actual lines. It is easy to fall off an invisible line.
These issues, and others like them, are usually sufficient to create reasonable doubt in the mind of at least one juror.
Many DUI prosecutions rely on field sobriety test evidence, and this proof is often shaky. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.