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They Say I Failed the DUI Field Sobriety Tests. Am I Automatically Guilty?


Absolutely not. At best, FSTs are only circumstantial evidence of intoxication. And, circumstantial evidence is subject to interpretation, which is why police officers always say the defendant “failed” the tests. But jurors often interpret the results differently, and their opinion is the only one that counts. Finally, not all field sobriety tests are created or administered equally.

If a Tampa criminal attorney undermines the state’s evidence, it is easier to successfully resolve DUIs. That resolution could be a plea to a lesser included offense, or other negotiated benefit. Sometimes, the client and the attorney feel strongly enough to proceed to a jury trial where a “Not Guilty” verdict can be obtained.

Romberg’s Balance Test

The eyes closed, head back, and arms extended balance test might be one of the signature DUI field sobriety tests. Sometimes, officers add requirements, such as touching the tip of one’s nose with one’s index finger.

However, this test has no scientific validity. So, in most Hillsborough County courts, RB test results are completely inadmissible.

Nevertheless, for strategic reasons, many attorneys allow prosecutors to use these test results in court. Most police officers are unfamiliar with the test’s theory, which involves the denial of vision, vestibular function (knowing the position of one’s head) and proprioception (knowing one’s body position in space). When officers cannot explain these things to the jury many jurors will get the idea that the arresting officer is biased, and that his opinions are not based on science.

Horizontal Gaze Nystagmus

In terms of scientific validity, the DUI eye test is a slight step up from Rhomberg’s test. The HGN test is one of the three approved FSTs, but its reliability has been questioned lately.

Most people have taken an HGN test at one time or another. Subjects must follow moving objects, like ink pens, using only their eyes. If the subject’s pupils move involuntarily at certain angles, the subject probably has nystagmus.

Alcohol causes nystagmus. But so do many other things. In fact, many people have nystagmus, which is also known as lazy eye. However, the symptoms are so mild they do not know it.

Environmental factors often affect this test as well. That’s especially true of roadside HGN tests. Officers often administer this test in the dark as cars whiz by a short distance away.

Most importantly, an officer must be qualified as expert to render an opinion in court on the HGN test.

Walk and Turn

Environmental factors also affect the WAT, which is also known as the heel-to-toe walk or the walking-a-straight-line test. It’s very hard to walk heel to toe along an invisible line or if the ground is anything less than perfectly level. Additionally, it’s very hard to walk heel to toe in any footwear other than athletic shoes.

One-Leg Stand

Like the WAT, the OLS is a divided attention test which measures physical ability and mental sharpness. Scientifically, intoxicated individuals are supposedly unable to walk and chew gum at the same time in this way.

Also like the WAT, many officers use minor technicalities as a basis to give a failing grade. These minor technicalities include lifting the wrong foot, holding it at the wrong angle, or slightly using the arms for balance. Yet most jurors would not consider such things “failing” this test.

Work with Former DUI Prosecutors

Aggressively attacking the state’s evidence is frequently the best way to resolve a criminal case. For a free consultation with an experienced former prosecutor in Tampa, contact The Matassini Law Firm. Nicholas G. Matassini is Board Certified in Criminal Trial Law by The Florida Bar.




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