This Cary/Durham/Raleigh DUI/DWI attorney notes that one very common and successful type of defense in a D.U.I. case is challenging the field sobriety testing made by the police officer. Police officers administer field sobriety tests (ie – walk and turn test, one-leg stand) in order to establish (if the motorist fails the test) that there is probable cause to make an arrest for DUI. So, what happens if the police officer did not perform the field sobriety tests correctly? A judge or jury may conclude that the police officer did not have probable cause to arrest the motorist in the first place. Put another way, case dismissed!
While there are many different field sobriety tests that an officer can administer, the three most common tests are usually the (i) walk-and-turn test, (ii) the horizontal gaze nystagmus, and (iii) the one-leg stand test, and while each individual police department may have its own instructions regarding administering these tests, the National Highway Traffic Safety Association publishes detailed guidelines on how these tests should be performed.
The Walk-and-Turn test requires the motorist to take nine heel-to-toe steps along a line, turn around, and take nine heel-to-toe steps back. Sounds easy enough, right? However, this test is often incorrectly administered by Cary, Durham, and Raleigh DUI law enforcement officers. For instance, the officer is supposed to demonstrate the test before asking the motorist to attempt it. Another crucial requirement of the test is that the pavement on which the test is performed is dry and level. Of course, many roadways in the Triangle area are far from level. Finally, this test is significantly more difficult to perform if the motorist is wearing a shoe with a heal of any height. If the officer fails to invite the motorist to remove their healed shoe — he’s not administering the test correctly.
Another common field sobriety test administered in the Raleigh, Durham, Cary area by DUI law enforcement officers is the one-leg stand test. The one-leg stand test requires the motorist to hold one leg approximately six inches off the ground for 30 seconds. However, like the walk-and-turn test, the one-leg stand test is often improperly administered by the officer failing to demonstrate the test prior to the motorist attempt to perform it. The officer is also supposed to demonstrate how the motorist is to count to 30 (ie – one thousand one, one thousand two…). Like, the walk-and-turn test, the one-leg stand test should only be performed on a dry and level pavement and should not be attempted by a motorist wearing a healed shoe. Finally, this test is not recommended for a motorist who is over the age of 65 or 50 or more pounds overweight.
Because of its complexity, I will be devoting an entire blog article to the administration of the horizontal gaze nystagmus test next time.
