Competent & Professional DUI Defense You cannot afford to risk losing your freedom and legal rights.

Maybe the Eyes DON'T Have It....

It is said that the eyes are the window to the soul. As a DUI defense lawyer, I don’t know if that’s true, but there actually is information to be gleaned from looking in a person’s eyes, providing that the eye examination is correctly administered and scored. As this relates to DUI investigations, the problem seems to be that most officers are not administering or scoring the tests correctly. This includes ALL the field testing, not merely the Horizontal Gaze Nystagmus (HGN) testing.

In a 1998 Validation Study of the Standardized Field Sobriety Tests, the authors of the report note that it “is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside.” Huh? If the police are not measuring driving ability, then what are they measuring? In fact, the Standardized Field Sobriety Tests are calculated to provide a probability of an elevated Blood Alcohol Concentration (BAC). Nothing more.

Nevertheless, many (and possibly most) law enforcement officers incorrectly believe that the tests do, in fact, indicate driving performance. Because of this, it is common for officers to speculate that a person was “under the influence” of alcohol or a controlled substance based solely on their performance of the field tests. This is a dangerous assumption, and it leads to an opinion of impairment that can form the basis of a wrongful conviction, loss of driver’s license, and many other collateral consequences. The remedy, of course, is to better educate the law enforcement officers on issues of impairment and the relationship of the field tests to such impairment. When the various police departments fail in their duty to educate, I consider it my duty to educate officers on the witness stand, sometimes in front of a jury, on the intricacies and details relating to the correct way to conduct Standardized Field Sobriety Testing. I am sure they will one day thank me for pointing out their errors in administering and scoring the tests.

The Horizontal Gaze Nystagmus test is neither easy nor quick to administer. Angles of offset and distance between the stimulus (the officer’s finger, or pen, or flashlight, or whatever he is having the subject follow with his eyes) and the subject’s face are critical. Speed of the horizontal passes is also critical. The human eye also fatigues quickly, especially in circumstances where a subject is told to move the eye all the way to one side and to hold it there for a period of time. When the eye is tired, it begins to jerk, and the jerking movement, or nystagmus, is presumed to be a result of alcohol ingestion. In fact, it is often just the result of the eye muscles becoming fatigued.

No test is perfect, and the Standardized Field Sobriety Tests are no exception. For this reason, officers must take care to administer and score them in a manner which maximizes the likelihood that the tests will be probative of something. A slapdash rush to complete the tests will induce errors and will likely cause the officer to conclude prematurely and erroneously that a motorist is somehow impaired. Surely we deserve better than this when our liberty is at stake.