One family of Field Sobriety Tests that may be given after you are stopped and the police claim to have suspicion of OVI/DUI. SFSTs consist of three tests, the Horizontal Gaze Nystagmus, the Walk-And-Turn, and the One Leg Stand. They are governed by a strict protocol and have a very specific manner in which they are to be administered.
Unlike most lawyers, Attorney Bucher has the same training that Law Enforcement is given in SFSTs.
Attorney Bucher focuses on OVI defense and is able to identify and exploit the mistakes that are commonly made by law enforcement in administering field sobriety tests. Tests not administered in substantial compliance with the NHTSA guidelines CANNOT be used as probable cause to arrest you or as evidence against you at trial.
The HGN will be what the officer refers to as “checking your eyes” so that he can “see if you are OK to drive”. This test is commonly referred to as the “pen test, finger test, or eye test”. Police generally believe this to be the best of the SFSTs and will go on at great lengths to tell juries this. In reality, the test is not only lacking, but probably the most likely to cause someone to be wrongfully accused of OVI DUI.
Development and Application
The HGN, like all the field sobriety tests, is a creature of laboratory development. This test is highly technical with a multitude of requirements to be done correctly. In reality, law enforcement almost never does this test in accordance with the guidelines and the roadside conditions are a far cry from the laboratory where it was born.
In addition to officer error, the HGN is susceptible due to the “clues” the officers are looking for, namely, an involuntary movement or “jerking” of the eyes at different stages of the test. This jerking can be cause by the officer doing the test incorrectly, by environmental factors on the side of the road, by a multitude of medications and medical conditions, and to make matters worse a sizable percentage of the population exhibits nystagmus (“jerking”) at all times, regardless of alcohol consumption and/or impairment.
The W&T is the test that is commonly referred to as the “9 steps” or “walking the line”. The test actually starts long before the accused driver knows and you can “fail” the test without taking your first step down the line. Police have significant problems getting the instructions correct in this test and that can actually cause the “failure” by the accused driver. Without the requisite training, your attorney may miss these crucial mistakes by law enforcement.
Development and Application
The W&T was also developed in a laboratory setting with actual physical lines for the subject to walk upon. Over time the line has disappeared and the laboratory setting is nowhere to be found. Coupled with incorrect or incomplete instructions, this can cause failure and false arrest.
The W&T hinges upon a multitude of instructions by the officer with properly timed and executed demonstrations. Deviation, which is common, can cause failure in and of itself. Additionally issues such as physical/medical conditions of the driver, age, weight, injury, wind/weather, passing traffic, surface conditions, and plain old nerves can cause failure by the unimpaired driver. Your attorney must know and identify these factors through careful study of the evidence and by conducting an in-depth interview of the client.
The one leg stand is the test that the OVI DUI subject can most likely identify if they did well on or not. It is straight-forward and the “clues of impairment” can be easily guessed (puts foot down, sways, raises arms, ect.). The test was developed along with the others but unlike the previous tests, remains largely the same after 30 years of application.
While the test if the same, the “scoring” of the test has been altered over the years. This creates problems when officers rely upon old training or were poorly trained. Their improper scoring can cause a test to improperly indicate impairment. Additional problems include medical/physical conditions of the accused driver, weather, surface conditions, nerves, and improper instruction of the officer prior to the start or mid test.
There are a number of tests administered by law enforcement that are “non-standardized” which is a nice way of saying they are unsupported by scientific research or much of anything else. These tests include:
These tests are not scientifically validated the officer cannot give any specific opinion as to impairment based upon performance on the tests.
These tests are very often impacted by nerves and to the extent they are “designed”, they are designed to be tricky. To make matters worse, the officer has full discretion in how he chooses to apply these “tests”in an OVI DUI stop so he can attempt to make them more difficult.
These are the worst of the field sobriety tests as trickery can lead to arrest and, if not properly dispelled by your attorney, to a conviction for OVI.
Proper training and education in Field Sobriety Testing is essential for your OVI DUI Attorney to defend you, suppress evidence, and to educate the jury that may decide you innocence or guilt.
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