I Did Fine on the Field Sobriety Test but I Was still Arrested on a Washington, DC DUI Charge: Do I Need to Hire an Attorney? (Part One)

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I Did Fine on the Field Sobriety Test but I Was still Arrested on a Washington, DC DUI Charge: Do I Need to Hire an Attorney? (Part One)

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I have done a lot consultations for prospective clients looking to hire a DUI lawyer in Washington, DC.  One of the most common things I hear from the person is that he or she did fine on the field sobriety test.  Unfortunately, I am fairly certain the police report will tell a different story.  The police report will probably say that the driver failed every part of every test.  This is the police report (PD-163) that you do not get to see until your first court date.  You can go the station and ask for a copy before your trial date but it will be a public copy that does not have many details other than the reason for the arrest.  It will probably just have the date and time of the arrest and state there was suspicion of driving under the influence of alcohol or drugs.

You are probably wondering how the police could be saying you police you failed when you were there and know you did fine.  The problem is that the tests the police give you are not like a normal test.  When you were in high school you probably remember your math teacher telling your there was a pop quiz.  You got that sinking feeling in your stomach and your pulse started to race.  When you get the quiz, one of the two things will likely happen.  You will know most of the answers because you know how to solve the problems or you won’t.  For the most part you will know if you are getting the answers right (or close to right) and whether you are passing the test.  In other words, you know what is expected of you and you know the criteria on which you are being graded.  If your friend asked you how you did on the quiz you would have an answer.  If your friend asked you what you got for part 3, you could tell him.

The test given to you by the Washington, DC police is called the Standardized Field Sobriety Test (SFST) and was created by the National Highway Traffic Safety Administration (NHTSA).  This “battery of tests” is designed to determine if someone is under the influence of alcohol.  The only thing that makes the SFSTs similar to your math test is you didn’t see it coming.  Unlike your math test, you have no idea what you are being graded on.  Take the eye test for example, that is what NHTSA (pronounced “Nit-Sa”) calls the Horizontal Gaze Nystagmus Test (HGN).  What they are looking for is an involuntary twitching (nystagmus) of the eye while you are looking (gazing) side to side to side (horizontally). There is no way you can tell if you are exhibiting nystagmus.  On the other hand, the police officer is not a properly trained medical professional so he or she probably can’t tell either.  However, their default response seems to be write down in the police report that you failed.

Specifically, they are looking for the three clues in on the HGN test.  They are looking for lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and the onset of nystagmus prior to 45 degrees.  The officer is instructed to check both eyes for these clues making a total of 6 six clues of impairment, or three clues in each eye.  If you failed every part of the HGN test, the officer would write that the suspect demonstrated 6 out of a total of 6 clues of impairment on the HGN portion of the SFTS.  Almost every police report says the officer observed 6 out of 6 clues of impairment.  Unlike your math test, if your friend asked you how you did on the third part of the HGN test, you wouldn’t even know that there was a part three.

An experienced DUI defense attorney can interpret the results and often demonstrate to the court the officer’s lack of expertise on the administration and interpretation of the HGN test.  If you have been arrested for a DUI in Washington, DC, you should contact an attorney immediately.

In part two of this series, I will discuss Walk and Turn test used in the SFTSs.