This article was adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books. Please call (315) 364-1155 or email us for a free consultation with Mr. Bruffett about your DWI case.

There are many mistakes that are commonly made by law enforcement when investigating DWI crimes. For instance, officers commonly, and mistakenly believe that crossing the fog line is a reason to stop a vehicle for an alcohol-related offense, but that is not so. There have been a number of court decisions that come to the same conclusion, that the defendant must be driving in a manner to indicate impairment, and that the “occasional non-weaving non-hazardous crossing of the ‘fog line’” is insufficient on its own. People v. Kern, 2013 Slip Opinion 50119(U).  The job of a defense attorney is to establish that the officer did not have sufficient reasonable suspicion for the traffic stop; and conversely, the officer’s burden is to prove that he or she had a reasonable suspicion that your client committed a traffic violation of any type, even an equipment-related violation such as a faulty tail light or improper window tint.

Officers also often make errors administering field sobriety tests. In many cases, these tests are conducted at night, quite often under poor weather and lighting conditions. Indeed, mistakes in this area are becoming more prevalent; and therefore, there is often no probable cause for making a DWI arrest. There are many reasons why someone may perform poorly on a horizontal gaze and nystagmus (an involuntary eye movement)(HGN) test, demonstrate imbalance, or exhibit other commonly observed behaviors that someone who is under the influence of alcohol may demonstrate.

Properly Administering the Field Sobriety Tests

Officers are told to administer the field sobriety tests (FSTs) fairly—i.e., they should make sure that the tests are performed on a clean, dry, even surface. This can be difficult, however, because if the tests are conducted on the side of the road they may be conducted on a surface that is part gravel and part concrete. The officers should be trained to look for the clues that will support intoxication; i.e. six clues for the HGN test. Also, many officers rely heavily on the results of the HGN test, solely because they do not understand that 1) many people have a naturally occurring nystagmus and 2) many legal medications affect your horizontal gaze and nystagmus. When conducting the HGN test, an officer typically swings a light or some other object back and forth in front of the driver’s eyes, and they take note if the driver’s eyes do not have a smooth pursuit—i.e., they exhibit jerky movements. Most officers do not realize that this test needs to be conducted under very strict conditions—i.e., there should not be anything else around the driver or the officer when he or she is administering the HGN test that would cause the driver’s attention to be diverted or their eyes to respond any kind of outside stimuli. For example, the driver’s gaze might be affected by the flashing lights of the police car, which should be turned off during the administration of the test.

I also believe that the walk and turn test is a particularly inappropriate test to use when trying to determine whether someone has been drinking. The driver is generally asked to take eight steps forward and eight steps backward; and again, these tests are usually administered on the side of the road on uneven surfaces. Also, if an officer is alleging that a driver is not in a normal state they may wind up acting differently as a result of that accusation. Most people are incredibly nervous when they are told by an officer to stand on the side of the road, and the officer will often give the field testing instructions very quickly. Also, the driver may have a health condition such as a bad ankle or hip that might cause them to fail the walk and turn test. I have reviewed a great deal of discovery in these cases, and I have found that officers rarely inquire about any preexisting health conditions that the driver may have. Consequently, it is all too easy for people to fail the walk and turn or other field sobriety tests. At the same time, it is highly unlikely that an officer will ever say, “This person passed all of the field sobriety tests but I am still going to charge them.”

Dash Cam Evidence and other FST Issues

While most police cars are equipped with dash cams, in most of the DWI stops that I have worked on, the officers did not use a dash cam to record the stop. There has been some debate in New York over whether all DWI stops should be filmed. Personally, I believe that dash cam evidence can exonerate someone in a DWI case or certainly give a jury enough reasons to consider the possibility of reasonable doubt. Therefore, I do not see any reason why a police car should not have its dash cam turned on during a traffic stop. Simply put, dash cam evidence could either exonerate the driver as far as helping to prove that they did not fail the sobriety tests; or it will support the officer’s contention that the driver was legitimately under the influence of alcohol.

At the same time, I recognize that it may be difficult to conduct the field sobriety tests directly in front of the police car where the dash cam is mounted. The officer has an obligation to conduct the field sobriety tests in a location where the driver has the best chance to do them properly. However, if a walk and turn test is administered on the side of the road there may be some gravel or dirt that makes the surface uneven or unstable, as noted. The testing process is even more difficult if you are dealing with a female driver wearing heels. An officer should always say, “I am going to take you to a place where you have the best ability to successfully complete the field tests, or at least ensure that they are fairly administered,” but that rarely happens. Ultimately, I think that field sobriety testing is, for the most part, nothing more than a process that is used to cover the officer’s actions until he gets the driver back to the station to blow into a breath testing machine for a reliable and admissible measure of BAC.

If you have been charged with DWI, please call (315) 364-1155 for a free consultation about your case.