Most jurors assume the DUI FSTs are scientifically reliable. But such assumptions are often wrong. Indeed, a closer examination of the NHTSA-approved three-test battery reveals some significant flaws. The FSTs are vital in all DUI cases. Officers use poor FST performance as an excuse to demand chemical samples. If the defendant refuses to provide that sample, prosecutors must use the FST results to prove guilt beyond any reasonable doubt.
The FST battery hasn’t changed much since the 1990s. But, as outlined below, a Marietta criminal defense attorney attacks this evidence differently today. Sticking with proven methods is important. But adapting to changes is even more important. As society and politics change, DUIs and other criminal offenses, and the defensive strategies in these offenses, often change as well.
Before we get to the three-test battery, we should cover the most common unapproved test, which is the finger-to-nose balance test, a/k/a the Romberg balance test.
Test subjects must close their eyes, extend their arms, lean their heads back, and touch their noses with the tips of their index fingers.
Until recently, most Marietta criminal defense attorneys asked judges to exclude these tests and their results, since NHTSA hasn’t given these tests a thumbs-up. But then, public confidence in police officers started falling.
Back in the day, schoolteachers told young children that if they got lost, they should go to a friendly police officer who would reunite them with their parents. Now, teachers are much more likely to tell children they should view police officers with suspicion and mistrust.
So, if prosecutors try to use the Romberg balance test, defense attorneys often allow it. Then, on cross-examination, they ask officers to explain the three balance concepts that this test measures, which are:
- Vision, and
- Vestibular function.
Most officers, like most other people, don’t understand these concepts. Jurors then get the impression the police officer was railroading the defendant. In other words, a Marietta criminal defense attorney gives officers enough rope to hang themselves.
Other unapproved tests include counting backwards and reciting part of the ABCs without saying “w, x, y, AND z.” These tests only prove the defendant wasn’t thinking clearly, for whatever reason. They don’t prove the defendant was intoxicated.
Similarly, the legal and practical environment has changed for the approved FSTs. Good lawyers know how to take advantage of these changes.
Significantly, attorneys don’t have to “prove” anything in court. They must simply discredit the state’s evidence and reasonably explain poor performance to jurors. For example, a Marietta criminal defense lawyer might argue that Sarah wasn’t drunk during her field tests. Instead, she was nervous and fatigued. We’ve all tried to get through work days when we aren’t at our best. Such an explanation often resonates with skeptical jurors.
Horizontal Gaze Nystagmus
Once upon a time, the DUI eye test was the most reliable FST. If a subject’s pupils move involuntarily at certain viewing angles, the subject probably has nystagmus, and alcohol intoxication causes nystagmus.
Then, new evidence became available, and today, the HGN test is probably the least reliable FST. In fact, many Cobb County judges only let prosecutors use the results in limited situations. So, the test that was once unassailable is now the weak link in the chain.
Nystagmus is Medspeak for lazy eye. Many people have lazy eyes, but only extreme stress brings out the symptoms, so they don’t know they have nystagmus. Additionally, alcohol intoxication isn’t the only cause of nystagmus. It’s not even the leading cause. That honor, or dishonor, goes to childhood brain injuries, usually sustained in a mild fall.
Despite these serious reliability issues, the HGN test is still on the official list. Furthermore, officers keep administering it, probably because it has a higher compliance rate than the other two tests.
This test hasn’t changed much over the years. 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. Since alcohol impairs motor skills and judgment ability, this test seems ideal.
But the instructions have changed. Officers no longer tell defendants how long they must remain in that position, at least in most cases.
If Sam knows he must climb three flights of stairs, he prepares himself, mentally and physically, for that climb, and paces himself accordingly. If Sam only knows he has to climb stairs, he’s much more likely to run out of physical and/or mental gas before he finishes.
An untimed OLS test has much the same effect. When defendants don’t know what to expect, they have a harder time completing this test.
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.
Walking a Straight Line
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. It’s almost impossible to walk a straight line heel to toe in any footwear besides athletic shoes.
Additionally, 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. That’s especially true if an officer made a defendant perform unapproved tests. That’s another reason a Marietta criminal defense attorney often allows prosecutors to use unapproved tests.
Environmental conditions also affect the WAT. Most subjects walk a straight line in a parking lot. The surfaces are uneven and debris is everywhere. It’s hard enough to walk normally in such a location.
Even if a defendant clearly fails the FSTs, the state doesn’t have 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.