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Attacking field sobriety testing with an FST-trained DUI lawyer

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Attacking DUI field sobriety testing- image of eye

Attacking field sobriety testing is stronger when your Virginia lawyer has been trained the way police are trained to conduct FSTs

Attacking field sobriety testing (FST) is an essential part of Virginia DUI defense against prosecutions under Virginia Code § 18.2-266, both to challenge the legality of the arrest and to argue that the prosecutor has not proven beyond a reasonable doubt that the defendant is guilty of driving under the influence of alcohol or drugs. As a Fairfax DWI lawyer, I know that ideal for a DUI defense lawyer is to obtain in-person FST training with a high-quality field sobriety testing instructor who has repeatedly trained police using the latest guidelines established by the National Highway Transportation Safety Administration (NHTSA) of the United States Department of Transportation. When such training includes emphasis on the DUI defense lawyer’s several times administering FSTs to people, including those who have recently consumed alcohol under controlled conditions, that defense lawyer will be in a better position to know where (particularly when incident video is available, but also to point out glaring evidence that is absent from the judge’s and jury’s view when no video footage exists) the police officer has fallen short both to the detriment of the Virginia DUI defendant (for instance by counting a positive FST clue against the suspect that does not exist, or by drawing a foul of a positive clue by misinstructing the subject, misapplying the officer’s FST training, misinterpreting the defendant’s FST performance, misremembering what the police officer observes, and adding unnecessary attention distracters to what already is divided attention testing). On top of all that, a Virginia DUI lawyer can look out for biased behavior in the police officer that might lead him or her to claim evidence of impairment, including making the improvident step of administering preliminary breath testing before administering field tests.

Fairfax DUI lawyer Jon Katz has been trained on administering NHTSA standardized field sobriety tests

For attacking FST’s, I have been trained to conduct field sobriety tests both on ordinary testing subjects who have not been instructed to consume alcohol, and on people who have recently consumed alcohol in controlled settings. I did this training through a multi-day DWI Detection and Standardized Field Sobriety Testing program hosted by the National College for DUI Defense (of which I have been a member for several years). These programs get waitlisted early on; I registered early to avoid any waitlisting. My main trainer is Anthony Pallacios, who is one of the nation’s top FST trainers who for years trained police in conducting FST’s and is a true believer in the benefit of FSTs (even though I consider them junk science) when administered correctly. The emphasis is on correct administration of the FSTs, because new police officers get so much information overload in their initial training so as to make correct FST administration all the more a challenge for a law enforcement officer.

For attacking FST’s, ask your potential Virginia DUI lawyer if s/he has been trained to administer and interpret field sobriety testing

Your DWI lawyer will be a critical part of what happens with your court case outcome, liberty, and reputation, in part through attacking the police work against you. You are entitled to ask your potential Virginia DUI lawyer the questions that are essential for you to make a sufficiently informed choice for who will defend you in court. Here is my free short guide to assist you with making that choice of your DWI defense lawyer. No matter how much I think that field sobriety testing is junk science, the vast majority of judges before whom I appear see at least the walk and turn (walking the line) test and one leg stand (standing on one leg) test as providing reliability. Nothing beats your Virginia DUI lawyer having his or her own top-notch FST training in order to pick up on subtle and not-so-subtle failings of the police officer in conducting so-called standard NHTSA standardized field sobriety tests (SFSTs),

Has your DUI police officer been well trained in conducting field sobriety tests and does s/he properly administer and interpret FST’s?

Some judges initially might be inclined to side with prosecutors when they object to the defense lawyer’s cross-examining / attacking police officers about such critical factors as the qualification of their FST educators and trainers, and whether the police officer knows if a government agency (see if the cop can identify that agency as NHTSA)  published their FST training manual (if they even have one; many Virginia police officers will deny recalling whether they even received such a manual, even though it cannot be missed, for being hundreds of pages thick). If the police officer claims to have received standard field sobriety testing, then being cross examined on such standards is fair game. If the police officer denies that his or her FST training was standardized, then the entire quality and relevance of that training is entirely attackable for being standardless, at best.

In attacking FST’s, consider what challenges can make a police officer fall short in conducting field sobriety tests for Virginia DUI investigations

In attacking FST’s, consider that many factors can cause a police officer to fall short in conducting FST’s. Anyone (like I) who is trained in and conducts FST’s sees how much of a challenge it is for a police officer to properly learn, understand and administer FSTs. Many essential steps can be missed. On top of that, police officers have the added challenges of assuring that they have a suspect under control and neutralized against disarming and harming the police officer, not only properly administering FST’s but also interpreting them correctly, being sufficiently thorough in all other aspects of their investigation, and dealing with FST conditions that are not ideal (for instance rainy and cold weather, and testing surfaces that are not flat), all while traffic can be whizzing by to distract the police officer and defendant.

On top of all that for attacking FST’s, consider that police officers must learn a multitude of policing techniques that go well beyond administering FST’s. DUI investigations alone involve much more than field sobriety testing, to include questioning the suspect, offering roadside preliminary breath testing (PBT), arresting, and conducting post-arrest breath and blood alcohol concentration (BAC) testing, and paper work. Beyond DUI investigations, police must be trained in drug detection and enforcement, traffic enforcement, and dealing with a multitude of such other alleged crimes as assault, theft, and sex crimes. Unless a police officer is going to commit to reading and re-reading the essential parts of his or her field sobriety testing training manual and to administer the tests correctly, s/he is at serious risk to fall off the mark.

What are the three standardized field sobriety tests for Virginia DUI cases?

For attacking FST’s, consider that the three standard field sobriety tests are the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand. If the police officer in a Virginia DUI trial claims to have administered any other tests (for instance counting backwards, reciting a snippet of the alphabet, doing a finger dexterity test, doing a finger to nose test, and guessing the passage of time with one’s eyes closed), those are not standardized tests. With a handful of exceptions at most, police officers admit on cross examination that the latter tests are not standardized. If they deny that, they can be cross examined on it using the FST training manual they claim to have been trained on (and if they deny having been trained with a manual, then their training is suspect as not having been standardized). For instance, the latest NHTSA-issued participant/student FST training manual confirms: “There are three SFSTs, namely Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS). Based on a series of controlled laboratory studies, scientifically validated clues of alcohol impairment have been identified for each of these three tests. They are the only Standardized Field Sobriety Tests for which validated clues have been identified.” NHTSA-issued participant manual for DWI Detection and Field Sobriety Testing (FST)  (Session 1, page 21 of 21)  (Revised 2/2018) (emphasis added)

If horizontal gaze nystagmus (HGN) testing is so unreliable, why is it still important for your Virginia DUI lawyer to be trained in administering this test on top of the other standard FST’s

In the Virginia courts where I appear, most judges do not give much or any reliability to horizontal gaze nystagmus (HGN) testing, which involves looking for nystagmus in the eyes as clues to alcohol impairment. You can find my arguments here against allowing and considering HGN evidence at Virginia arrest suppression hearings and trials, and in considering such evidence as showing nothing more than that alcohol is present in the DUI defendant’s body, which by itself is not a crime. Nonetheless, if the judge allows such testimony in court, a plethora of aspects of HGN testing can be ripe for the attacking by one’s Virginia DUI lawyer, including: The police officer needs to hold the stimulus (whether that be his or her pen, flashlight or finger) at least 12-15 inches from the suspect’s nose, slightly above eye level. The police officer needs to count two seconds per eye to check for equal tracking, and two seconds per eye (with two passes per eye) to check for lack of smooth pursuit. The next step of the HGN test if for sustained nystagmus at maximum deviation, where the officer needs to assure the eyeball is fully to the side, the stimulus needs to be held for four seconds, and each eye needs to get two passes with the stimulus. The final step of the HGN test is to check for onset of nystagmus at prior to 45 degrees, which requires a minimum of four seconds to reach 45 degrees, with two passes of the stimulus per eye. Watching the incident video can reveal where such errors take place. Correct administration of the HGN test returns an even number of clues. Correct administration of the test means that sustained nystagmus at maximum deviation will not be detected if lack of smooth pursuit is not detected; and nystagmus prior to onset of 45 degrees will not be detected if sustained nystagmus at maximum deviation is not detected.

Walk and turn test and one leg stand

This article has not addressed the specifics of the walk and turn test and one leg stand (which are fully addressed in my later Virginia DUI defense article), which are the remaining SFST’s. Instead, this article underlines how important it is for your Virginia DUI lawyer to fully understand FST’s so that s/he may be in a strong attacking mode to challenge this and all other aspects of the DWI prosecution against you.

Virginia DUI lawyer Jonathan Katz pursues your best defense against DWI, misdemeanor and felony prosecutions. Call  703-383-1100 to schedule your free in-person confidential consultation with Jon Katz about your court-pending case.