During some DWI bench trials, it appears that judges are using a piece of paper to check off information about the defendant’s purported performance on the junk science field sobriety tests. I hope that no judges are using a pre-printed checklist — and if so, hopefully such checklists are not distributed at judicial conferences — not only because doing so distracts from rendering an independent and correct verdict about whether the case has been proven beyond a reasonable doubt, but also because any checklists used should only be of the judge’s own making in fulfilling his or her own judicial oath as an independent adjudicators, and not rely on checklists from other sources.

Repeatedly, many judges allow police officers to testify about how many clues they are looking for in the horizontal gaze nystagmus test (if permitted to testify about such junk science in the first place), walk and turn test and one leg stand. Hogwash! To allow testimony about how many clues are being checked brings us to the realm of prejudice and quasi-expert testimony without the witness’s being qualified as an expert.

The only reason a judge should consider allowing testimony about field sobriety testing is as part of the totality of the circumstances — not only field sobriety tests, but also the defendant’s overall behavior (including fumbling or not to produce his or her license), coordination (for instance standing straight or falling over), and appearance  — to determine whether probable cause existed to arrest for DWI and whether guilt of DWI has been proven beyond a reasonable doubt.

However, repeatedly and too often I hear too many judges over-relying on field sobriety testing in rattling off their recollection of some of the key field sobriety testing errors, in finding probable cause and even guilt.

Too many judges place too much currency with the walk and turn test, for instance, about whether the defendant has followed the police officer’s instructions to keep his or her arms at the sides, to walk nine steps out and back, to walk heel to toe, to count out loud, and to pivot with small choppy steps. Not doing all of these things is not necessarily any indication of alcohol influence as much as information overload to a suspect on a busy highway, where the suspect may be scared, bewildered, tired, and distracted by the passing traffic and the police car’s strobe lights that often stay on during the police encounter.

Similarly, too many judges place too much reliance on the one leg stand test, about whether the defendant put his or her foot down, hopped, counted aloud, or held his or her foot at least six inches off the ground.

Much is at play to attack these field sobriety tests, including challenging whether the police officer was sufficiently trained to administer the tests, whether the tests were properly administered and evaluated, whether the tests were videotaped, whether the tests were conducted on flat ground without debris, what the weather conditions were, whether the suspect had any impairments or other characteristics that would compromise the testing, and whether the suspect voluntarily submitted to the tests.

What is the suspect’s solution here with the field sobriety tests? A first possible solution is not to take them. Although I learn once in awhile of clients who get stopped for reckless driving based on speed or charged with marijuana, being administered and passing the field sobriety tests, the cards are stacked against even a stone sober suspect with field sobriety testing. Yes, Virginia law allows the police officer to testify that the defendant refused field sobriety testing, Jon Katz, P.C. — Hammond v. Virginia, 17 Va.App. 565, 439 S.E.2d 877 (1994) — but then I should be permitted to remind the judge and jury that such tests are voluntary under Hammond, so the refusal to take such tests is probative of nothing.

DWI cases need to be fought tooth and nail. A DWI conviction risks not only jail time, but also in Virginia even a first conviction brings a lengthy mandatory license suspension. The defenses against DWI prosecutions go well beyond challenging field sobriety testing to challenging breath testing, preliminary breath testing and all other relevant circumstances in the case.