Saturday, July 9, 2011

DUI Field Sobriety Tests: Police Officers Giving You the Finger - Test.

This post concerns Field Sobriety Testing - and specifically, the “eye test” that police officers perform.  If you ever wondered why police officers waive their finger in front of somebody's face to see if they've been drinking, this post should answer that question. 

If you are stopped by a police officer and the officer believes you have been drinking, the officer will most likely ask you to perform Field Sobriety Tests (hereinafter, “FSTs”).  You are probably a little bit familiar with these tests even if you have never been asked to perform them.  Since they have been standardized and consistently used for years, you have probably heard of the Horizontal Gaze Nystagmus (hereinafter “HGN” and commonly referred to as the “eye test”), the One Leg Stand, and the Walk and Turn Tests.  

I first became familiar with FSTs at Eastern Kentucky University.  EKU has a pretty phenomenal police administration program - one of the best in the nation.  They used to (and probably still do) get college students to come in and drink, so they could teach aspiring police officers and new recruits how to perform FSTs.  They would  get some of us a little intoxicated and some of us over the limit, take us around to different stations and let the officers perform tests on us.  The officers would guess whether we were over or under the legal limit, and then they would feed us.  We watched some movies, and then left after we blew .000 on the breathalyzer.  And they paid us $75 for the day.  It was a pretty fantastic way to earn side cash in college.  I actually know a guy who took a date to the alcohol testing.  But that's probably a story for another time.  I don't want to tell you who it was, but if you're ever in the Richmond area and run into a guy named Shane Smith, ask him about it.

Anyway, while performing the tests I became very interested in how they were performed, and the different rules to which the officers had to abide.  There are a lot of details that go into the tests and often, officers forget some of the details.  If that happens, an experienced Louisville DUI lawyer might be able to get the evidence of FSTs suppressed.  That means they wouldn’t be admissible at a jury trial.

The HGN:

The HGN test is an assessment of the involuntary movement of a subject’s eyes.  An officer takes a stimulus, often their index finger, and move the stimulus back and forth in front of the subject’s eyes.  The subject is supposed to stand still, keep their head still, and follow the finger only with their eyes.  As the officer moves the stimulus, they will first check your pupils, then check for equal tracking of the eyes (whether they both move together like they should) and finally, the officer will look for “jumping” or “jerking” of the eyes.  This involuntary movement is nystagmus (or one of the many different kinds of nystagmus).

In actuality, everyone has at least a little bit of nystagmus, all the time.  Nobody’s eyes move in exact smooth pursuit.  Consistently, there are very small involuntary jumps.  Alcohol consumption exaggerates the nystagmus that we all have.  If you have a DUI charge, and the officer wrote “lack of smooth pursuit” on your citation, that’s what the officer was saying.

As the suspect follows the police officer's finger with their eyes, the officer is supposedly able to detect when the nystagmus begins and is supposedly able to estimate the angle from straight ahead at the point where it begins.  If the onset is prior to 45 degrees, in theory, the blood alcohol level will be over .05.  If you have a DUI charge and the officer performed the HGN, the officer probably wrote “onset of nystagmus prior to 45 degrees” on the citation.

The next part of the HGN is to note whether the jerking becomes more "distinct" when the eye is moved to the lateral extreme — that is, when there is no longer any white of the eye visible at “maximum deviation.”

Officers are supposed to administer the test the same way every time and to use an objective scoring method to determine the results of the test.  In reality, few officers understand the test, administer it correctly, or use objective scoring.  A lot of officers simply report that they "detected nystagmus", and subjectively count that as a failure.  However, it is the characteristics of nystagmus, not the simple presence thereof, which is relevant to determining whether someone may be impaired.  As a side note, and unfortunately, many things besides alcohol cause nystagmus and many of us have distinct nystagmus under normal conditions.

The above reasons are why you should NOT perform field sobriety tests.  You do not have any obligation to do so, and you are well within your rights to refuse to take the tests.  In fact, you should not speak to the officer, and you should just hand them my card.  On the back of my card, the officer will find the following message:  

Dear Officer:  I do not waive any of my Constitutional Rights.  I do not consent to any search.  I wish to remain silent.  I will not perform Field Sobriety Tests, and I will not take a PBT.  If you have any questions, call my attorney, Greg Simms, at 502.618.4949.

If an officer asks for your license, registration or proof of insurance, you should hand my card to the officer with the aforementioned documentation.

If you have a DUI charge in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 or visit  Don’t trust your case to a DUI attorney who only takes DUI cases “every once in a while.”  Get an experienced Louisville DUI lawyer on your side.  Results.  As fast as the law will allow.

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