Field Sobriety Tests (FSTs)
Marysville DUI
Initial Considerations
Did the Marysville DUI tests consist of the federally recommended ‘‘standardized’’ battery of tests: walk-and-turn, one-leg stand, and horizontal nystagmus?
-If so, were they administered and scored as recommended?
-If not, why were tests not approved by NHTSA used by the Marysville DUI officer?
Can the FSTs be suppressed at a motion hearing?
Should the Marysville DUI officer and prosecutor be instructed to refrain from using such terms as ‘‘test’’ or ‘‘fail’’?
When was the Marysville DUI officer trained in FSTs?
Has the Marysville DUI officer received refresher courses in FSTs?
Has the Marysville DUI officer received ARIDE training?
Is the Marysville DUI officer an instructor for FSTs?
Marysville DUI Defendant’s Condition
Was the Marysville DUI defendant 50 pounds or more overweight?
Was the Marysville DUI defendant 65 years of age or older?
Was the Marysville DUI defendant suffering from any illness affecting his balance or coordination?
Was the Marysville DUI defendant taking any drugs or medication that might affect his balance?
Did the Marysville DUI defendant have any physical disabilities affecting his ability to take the tests?
Was the Marysville DUI defendant upset by or injured in a traffic collision?
Was the Marysville DUI defendant suffering from any emotional reactions to the procedure - fear, embarrassment, anger, nervousness?
Was the Marysville DUI defendant wearing shoes with high heels while performing the tests?
Administration of Marysville DUI Field Sobriety Tests
Were the Marysville DUI tests given on a smooth and level area?
Was the area covered with gravel, loose dirt, or other possible obstructions?
Were the Marysville DUI tests administered near passing vehicles, creating nose and wind waves?
Did the lighting conditions impede the Marysville DUI defendant’s successful performance?
Did the weather conditions make the tests more difficult to perform?
Did the Marysville DUI police vehicle have flashing lights creating a strobe effect?
Could unclear instructions by the Marysville DUI officer have contributed to test results?
Was the Marysville DUI defendant given the opportunity to practice each of the tests once before attempting them? Why not?
What was the physical line used in the walk-the-line test?
Did the Marysville DUI officer demonstrate to the Marysville DUI defendant by first performing each test?
Does ‘‘passing’’ involve a subjective opinion by the Marysville DUI officer?
Had the Marysville DUI officer already formed an opinion that theMarysville DUI defendant was intoxicated?
Are there any objective criteria?
Did the oMarysville DUI fficer use negative scoring?
Did the Marysville DUI officer take into consideration the ‘‘impaired learning curve’’ (fear, nervousness) in assessing pass/fail?
Corroboration
Were any videotapes or photographs taken of the Marysville DUI defendant performing the tests?
Were any audio or video devices available to the Marysville DUI officer, if so, and they were not used, why not?
Are there any Marysville DUI defense witnesses who observed the tests being given?
Were any potential witnesses prevented by the Marysville DUI police from viewing the tests?
Did the officer diagram the walk-the-line and/or finger-to-nose tests as they were performed?
Was he capable of recalling all details when he later drafted his report?
Can a comparison of the Marysville DUI defendant’s signature and/or handwriting be effectively made?
Horizontal Gaze Nystagmus (HGN)
Marysville DUI
Admissibility
Is evidence of the HGN test admissible at trial?
If so, is it available to prove consumption of alcohol only (not impairment)?
Is the Marysville DUI officer qualified as an expert?
Does the test pass the state and/or Frye standards?
Does the evidence consist of testimony as to the indicated blood-alcohol level, or as to whether the Marysville DUI defendant passed or failed?
Foundation
Was the Marysville DUI officer qualified to administer the HGN test?
Has he had sufficient training and experience?
Is he familiar with the physiological theory behind the test?
Is the Marysville DUI officer aware of the many sources for error inherent in the test?
Administration
Was the test administered according to the standardized procedures?
Did the Marysville DUI officer ask the defendant if he was wearing contacts and note the answer?
Did the Marysville DUI officer have the defendant remove glasses before testing?
Did the Marysville DUI officer tell the defendant, ‘‘I am going to check your eyes’’?
Did the Marysville DUI officer instruct the defendant: ‘‘Keep your head still and follow this stimulus with your eyes only’’?
Was the Marysville DUI defendant told: ‘‘Keep focusing on this stimulus until I tell you to stop’’?
Did the Marysville DUI officer hold the stimulus 12 to 15 inches from the defendant’s nose and slightly above eye level?
Pupils not equal in size may indicate a head injury; did the officer check to see if the Marysville DUI defendant’s pupils were equal in size?
Eyes that don’t track together could indicate a possible medical disorder, injury, or blindness; did the Marysville DUI officer check the defendant’s eyes for the ability to track together?
Did the Marysville DUI officer move the stimulus smoothly?
Did the Marysville DUI officer move the stimulus two seconds out, two seconds back, for each eye?
Was the stimulus moved to maximum deviation, and held for four seconds for each eye?
Did the Marysville DUI officer check to see if the onset of nystagmus occurred before 45 degrees?
Was the sclera (white of the eye) visible?
Did the Marysville DUI officer check for each clue at least twice in each eye?
Was the Marysville DUI defendant facing away from flashing lights?
Did the dMarysville DUI efendant exhibit the standardized clues?
-Lack of smooth pursuit
-Distinct nystagmus at maximum deviation
-Onset of nystagmus prior to 45 degrees
-Did the Marysville DUI defendant exhibit other clues?
-Did the Marysville DUI defendant sway noticeably during the test?
-Did the Marysville DUI defendant keep his head still during the test?
Does this testimony conflict with the Marysville DUI officer’s earlier or later testimony that the defendant was staggering, weaving, or unstable on his feet?
Sources of Error
Was the angle of onset measured accurately and honestly?
Was the angle of onset measured with a template, or by estimate?
Has the Marysville DUI officer received training in estimating angles?
Has the Marysville DUI officer undergone recent verification of his ability to estimate angles?
Did the Marysville DUI officer simply use the Marysville DUI defendant’s shoulders to measure 45 degrees?
Was the jerking of the eye observed by the Marysville DUI officer due to his moving the focal object in a jerking manner?
Is there any evidence corroborative of the Marysville DUI officer’s testimony concerning the angle?
Did the Marysville DUI officer use the objective scoring system recommended by the NHTSA?
Are there any sources of possible error in the test?
Is the officer aware of physiological grounds for error?
Had the Marysville DUI defendant consumed coffee, smoked a cigarette, or taken an aspirin?
Did the Marysville DUI defendant suffer from any physiological problems that would affect nystagmus, such as influenza, streptococcus, vertigo, or epilepsy?
Is the Marysville DUI defendant hypertensive or hypotensive?
Was the Marysville DUI defendant carsick?
Were there any inner ear problems?
Was the Marysville DUI defendant suffering from eyestrain or eye muscle fatigue?
Is the Marysville DUI officer aware of the effects of circadian rhythm on the onset of nystagmus?
Walk-and-Turn
Marysville DUI
Was the test administered in accordance with the standardized procedures?
Were the required conditions for the administration of this test met?
Was the test conducted on a dry, hard, level, non-slippery surface?
Was there a designated straight line?
Was the test administered under relatively safe conditions?
Were the proper instructions given?
Did the Marysville DUI officer tell the Marysville DUI defendant: ‘‘Place your left foot on the line’’?
Did the Marysville DUI officer further explain: ‘‘Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of your left foot’’?
Was the Marysville DUI defendant told: ‘‘Place your arms down at your side’’?
Was the Marysville DUI defendant instructed: ‘‘Keep this position until I tell you to begin; do not start to walk until I tell you to do so’’?
Did the Marysville DUI officer verify that the defendant understood the stance was to be maintained while instructions were given?
If the Marysville DUI defendant lapsed from the stance during the instructions, did the officer cease instructions until the stance was resumed?
Did the Marysville DUI officer tell the defendant that he would be required to do nine heel-to-toe steps down the line, turn around, and take nine heel-to-toe steps up the line?
Did the Marysville DUI officer demonstrate several heel-to-toe steps?
Did the Marysville DUI officer demonstrate the turn?
Did the Marysville DUI officer tell the defendant to look at his feet, keep arms at sides, count steps aloud, and not to stop walking until the test is completed?
Did the Marysville DUI officer ask the Marysville DUI defendant whether he understood and re-explain what was not understood?
Were the proper procedures followed while the Marysville DUI defendant performed the test?
Was the Marysville DUI defendant told to begin?
If the Marysville DUI defendant staggered or stopped, did the Marysville DUI officer allow him to resume from the point of interruption rather than go back to the beginning?
The Marysville DUI officer should not have followed alongside the Marysville DUI defendant.
The Marysville DUI officer should not have been within three or four feet of the Marysville DUI defendant during the test.
Did the Marysville DUI defendant exhibit any of the standardized clues?
-Lose balance during instructions (feet must break apart from the heel-to-toe stance);
-Start walking too soon;
-Stop while walking to steady self;
-Miss heel-to-toe while walking (by 1/2 inch or more);
-Raise arms from side while walking (6 inches or more);
-Step off the line;
-Turn improperly;
-Take wrong number of steps.
One-Leg-Stand
Marysville DUI
Was the test administered according to the standardized procedures?
Were the required conditions for the administration of the test met?
Was the test administered on a smooth, level surface?
Was the lighting adequate?
Were the proper instructions given?
Was the Marysville DUI defendant told to stand with feet together and arms at sides?
Did the Marysville DUI officer tell the Marysville DUI defendant not to start until told to do so?
Did the Marysville DUI officer ask the defendant if he understood?
Was the Marysville DUI defendant told to stand on either foot with the other foot held straight and about six inches off the ground, toes pointed out?
Did the Marysville DUI officer demonstrate the proper stance?
Did the Marysville DUI officer instruct the subject to count from 1 to 30 by thousands until told to stop?
Did the Marysville DUI officer demonstrate the count for several seconds?
Did the Marysville DUI officer ask the Marysville DUI defendant if he understood, and if not, did the Marysville DUI officer re-explain? Were the proper procedures followed while the defendant performed the test?
Did the Marysville DUI officer tell the Marysville DUI defendant to begin?
If the Marysville DUI defendant stopped or put his foot down, did the officer allow him or her to begin at the point of interruption?
Was the Marysville DUI defendant permitted to remove his shoes?
The Marysville DUI officer should not stand within three feet of the suspect during the test.
The Marysville DUI officer should not move around during the test.
Did the Marysville DUI defendant exhibit any of the standardized clues?
-Sway in trying to balance;
-Put foot down;
-Hop;
-Raise arm from side 6 inches or more.
For information on your Snohomish County DUI or Marysville DUI please contact our Marysville DUI attorneys at 425-493-1115, email us at david@davidjollylaw.com, or check out our main website at http://www.washdui.com, www.everett-dui.co, www.marysville-dui.com or www.mukilteodui.com
