Question: What are some ways to attack the field sobriety tests in Maryland DUI cases?
Answer: Most officers, I’d say 95% of them, use the field sobriety tests that were so-called “standardized” by the National Highway Transportation Safety Administration, the NHTSA. And, basically what they do is, they’re taught based off of a manual these tests and how to standardize each test, and what clues are used in each recording. So every HGN test or horizontal gaze nystagmus has six clues and the person gets a score, something out of six; the walk and turn is usually eight clues, and the person gets a scoring of eight or zero, anything between zero and eight; and the one-leg stand is out of four.
So what it does do is it attempts to give the officers a basis for these so the judge can rely on the field sobriety tests. However, no test is really standardized, because the testing conditions are never the same. You could have somebody on a beautiful, perfect day on an exactly flat road be given a field sobriety test, and then a field sobriety test at night while raining on an incline. How is that standardized? So they’re applying the same exact standardized clues on completely different environments.
So I don’t think it’s ever truly standardized, and that’s something that we fight all the time—in trial we’re often attacking the field sobriety tests as far as, for instance, on the walk and turn test, sometimes the officers don’t have a line and they tell the defendant to walk a line, to walk an imaginary line in their head. Well, the officer often doesn’t tell them how thick that imaginary line is—so if they say they stepped an inch off, how does the officer know that their line wasn’t four inches wide? So, there is no real standardized test. They say it’s standardized, because that’s how they try and prove impairment, but there really truly isn’t much of a standardized test. So that is something that we attack all the time.
As far as the old school things that people see on TV as far as the non-standardized tests, which are the alphabet backwards, the counting backwards, those kinds of things, those really aren’t valid in court anymore, because they are obviously not standardized, but you’re also assuming that the person knows the alphabet, and you’re assuming that the person can count. So, it’s not really standardized in that sense either. Those tests are almost universally kind of tossed out. So you’ll see an officer who was trained by, say, his commander as opposed to the NHTSA, and they use these random tests like touch your finger to your nose and all that kind of stuff, or touch each index finger from your thumb. Those aren’t standardized tests—they’re very subjective, and they’re often not all that useful in court. So that is something that we attack, is the non-standardized nature of the tests.