In Georgia DUI cases, any number of field sobriety tests (FSTs) may be used. In most larger areas, we see only standardized field sobriety tests, and in areas where less DUI arrests are made, we are more likely to see non-standardized field sobriety test. Field sobriety tests must be addressed in the defense of a DUI case because they have an appear objective and scientific. It is essential that your DUI attorney expose the unreliability and subjectivity of field sobriety tests.
THE PURPOSE AND LIMITATIONS OF FIELD SOBRIETY TESTS IN DUI CASES
Most courts throughout the United States have correctly held that field sobriety tests used in DUI cases are not the equivalent of chemical analysis methods, such as breathalyzers or blood tests. Field sobriety tests are not scientifically reliable to predict a person's blood-alcohol concentration. The purpose of DUI field sobriety tests is to assist officers in screening people that may be under the influence. The field sobriety tests are intended to be tools for evaluating probable cause for a DUI arrest. The irony, of douse, is that the tools that were intended to be used for a probable cause evaluation in a DUI case are frequently relied upon as proof beyond a reasonable doubt of impairment.
TYPES OF DUI FIELD SOBRIETY TESTS
We can generally put DUI field sobriety tests into four (4) categories. Within those 4 categories of field sobriety tests, there are performance tests, and there are eye tests. Of the performance tests, 2 are primarily physical performance field sobriety tests, and 1 is a mental field sobriety tests. A physical and a mental test may be combined into one exercise as a divided attention test. The 4thtype of field sobriety test consists of eye impairment tests.
BALANCE PERFORMANCE FIELD SOBRIETY TESTS
The most commonly used balance performance field sobriety tests are the walk-and-turn, the leg raise (or one-leg stand), and the modified position of attention test. To illustrate how these tests work, consider the common practice among officers administering balancing tests to “fail” a suspect because he raised his arms during performance. Using your arms for balance is a natural, instinctive thing to do.
The client's physical ability to perform field sobriety tests should always be considered. Medically diagnosed limitations should always be a consideration in evaluating performance of DUI field sobriety tests, but other relevant (undiagnosed) factors that may impair balance or coordination must also be considered. The DUI attorney that relies solely upon diagnosed conditions may be vastly underestimating the presence of common symptoms such as dizziness and vertigo, which rank among the most frequent complaints in primary care but remain unexplained in 40% to 80% of cases. Dizziness and vertigo are frequent symptoms in the general population – affecting approximately 23% of adults in some studies.
BALANCE PERFORMANCE FIELD SOBRIETY TESTS: THE WALK-AND-TURN TEST
The walk-the-line test has been transformed to the walk-and-turn test. The walk-and-turn test is almost certainly the most commonly used DUI field sobriety test. In the walk-and-turn field sobriety test, an officer has the client walk along a line or crack in the pavement in a heel-to-toe manner and, at the end of the line, the client is directed to pivot and return.
During the cross-examination of an officer that administers the walk-and-turn test, there is generally some fun to be had with the officer's testimony that the client walked off the imaginary line: the line envisioned in the officer's mind was not the same line that the defendant had mentally drawn and followed.
BALANCE PERFORMANCE FIELD SOBRIETY TESTS: THE ONE-LEG STAND TEST
The one-leg-stand field sobriety test requires the suspect to stand on one leg for approximately 30 seconds while the other leg is elevated approximately 6 inches off the ground. In practice, you may seen the one-leg stand test administered in a vary of different way. It is called a “divided attention” test because the suspect is also told either to (1) count to 30 in a 1001, 1002, 1003… manner, (2) put his leg back down after 30 seconds have passed, (3) count backwards from a number such as1,000, or (4) recite the alphabet. We will discuss the standardized administration and clues for the one-leg stand test in a subsequent post.
BALANCE PERFORMANCE FIELD SOBRIETY TESTS: THE MODIFIED POSITION OF ATTENTION
In the modified position of attention test the suspect is asked to assume a rigid position of attention with his head tilted back and eyes closed. This is also a divided attention test in that the suspect is generally asked to estimate the passage of 30 seconds while maintaining this position. Frequently, the modified position of attention test will be called the Romberg/Rhomberg test.
COORDINATION PERFORMANCE FIELD SOBRIETY TESTS
COORDINATION PERFORMANCE FIELD SOBRIETY TESTS: THE FINGER-TO-NOSE TEST
In the finger-to-nose field sobriety test, the suspect is asked to assume a position of attention, tilt his head back, and touch the tip of his right index finger to the tip of his nose. Then, this process is repeated with the left index finger. A recurring problem that we see in these tests is that the administering officer instructs the suspect to touch his nose with his finger, and then proceeds to fail the suspect because he did not touch the tip of his finger to the tip of his nose. This is more a failure of communication than is a sign of impairment.
The finger-to-nose field sobriety test is a test that we common see in boating under the influence cases.
COORDINATION PERFORMANCE FIELD SOBRIETY TESTS: THE FINGER-TO-THUMB (FINGER COUNT) TEST
coordination test in which the suspect is told to touch the thumb of one hand to the little finger of the same hand, then to each of the remaining fingers and back again to the little finger in quick succession.
Counsel will find that if his client performed satisfactorily, the officer will often claim that he failed because he performed it “too slowly,” although instructions as to speed are often not given.
The finger-to-thumb field sobriety test is a test that we common see in boating under the influence cases.
COORDINATION PERFORMANCE TESTS: THE HAND-PAT TEST
The suspect is instructed to hold one hand palm up, then pat the palm alternately with the back and palm of the other hand in a rapid but smooth motion. The officer fails the suspect for “chopping,” “clapping,” or going too slowly.
As with other field sobriety tests, it is not uncommon for the officer to give incomplete or inaccurate instructions and/or a rushed demonstration.
The hand-pat field sobriety test is a test that we common see in boating under the influence cases.
COORDINATION PERFORMANCE TESTS: THE COIN PICKUP TEST
The arresting officer drops a coin or coins on the ground and instructs the suspect to pick them up.
The suspect fails if he or she has any difficulty in collecting the coins.
MENTAL ABILITY FIELD SOBRIETY TESTS
Used in conjunction with performance tests or independently, the third category tests an individual's mental agility.
[a] Reverse Counting
In this field sobriety test, the suspect is told to count from one to ten and then back down to one; a variation is to have him begin at one hundred or one thousand and count down until told to stop.
[b] Recited Alphabet
This is a mental agility test asking the individual to recite the alphabet very quickly.
It is a rare case in which the officer will not testify that the defendant skipped over some letters, or had to stop halfway through and start again.
[c] Written Alphabet
The suspect here is asked to write the alphabet on a piece of paper, and then to authenticate it with his or her signature.
This is a test of both physical and mental ability: the focus can be on either the correctness of the alphabet or the handwriting itself-
The prosecutor will view this as valuable physical evidence, independently corroborating the officer's testimony.
however, if handled correctly by defense counsel it represents a very effective way to discredit the officer.
4th category does not involve performance of tasks by the suspect,
but consists of determining whether there has been functional impairment of the suspect's eyes.
These types of FSTs are particularly damaging because seemingly scientific nature.
The two prevalent tests here are pupil reaction and gaze nystagmus.
This is the “newest” of the field sobriety tests commonly —potentially most damaging —of field sobriety tests is nystagmus or, more accurately,horizontal gaze nystagmus.
test involves the officer observing the movement of the suspect's eyeball on a lateral plane: when nystagmus (eye jerking) begins (referred to as “onset of nystagmus”), whether there is a uniform movement (“smooth pursuit”), and whether the eyeball jerks in a different fashion when back as far as it can go (“distinct nystagmus at extremes”).
If you have questions regarding DUI field sobriety tests and, particularly, DUI field sobriety tests in Georgia DUI cases, contact Ben Sessions of The Sessions Law Firm at (470) 225-7710.
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Atlanta, Georgia 30309
Phone: (470) 225-7710