In most cases, the FSTs serve as probable cause for a chemical sample request. “Probable cause” is not a well-defined term, but in Minnesota, it is not much more than an evidence-based hunch.
However, in a significant number of instances, the defendant refuses to provide a breath or blood sample. If that happens, McLeod County prosecutors must use the FSTs to establish guilt beyond reasonable doubt. That’s a much higher evidentiary standard. In general, reasonable doubt is anything beyond speculative, capricious, or fanciful doubt.
So, in these cases, a Hutchinson DUI defense lawyer has an opportunity to significantly undermine the FSTs, as outlined below.
The stakes are high. Even a first-time DUI conviction normally means high fines, extended court supervision, and driving restrictions. Additionally, DUIs have a number of collateral consequences, such as sky-high auto insurance rates.
Finger to Nose Test
The FNT is primarily a balance test. Subjects must tilt their heads back and touch the tips of their index fingers to the tips of their noses. In some areas, police officers dress this test up and include things like counting or reciting part of the alphabet.
But no matter what bells and whistles officers add, this test has no scientific foundation. As a result, Hutchinson DUI defense lawyers can often exclude these test results, or at least see that they are admitted only for limited purposes.
Romberg Balance Test
If the FNT is under-scientific, the Romberg test may have the opposite problem. It is over-scientific. The test appears simple. Subjects must stand straight for one minute with their eyes closed. They must also silently count sixty seconds. This test measures:
- Proprioception (knowing one’s body position in space),
- Vestibular ability (knowing one’s head position in space), and
- Vision (using one’s eyes to adjust balance).
Despite all these multi-syllable words and the Romberg Test’s long history (it was developed in the early 1800s), the test has almost no scientific merit. For that reason, McLeod County judges often exclude it. However, Hutchinson DUI defense lawyers often allow the jury to review it. Many officers do not know how the test works, and the lack of knowledge makes them look bad. If nothing else, jurors are often impressed when a Hutchinson DUI defense lawyer discusses abstruse topics like vestibular skills and proprioception.
Horizontal Gaze Nystagmus
The HGN is the first test in the approved three-test battery. It’s a medical test designed to identify nystagmus, which is also known as lazy eye.
Most people have probably taken an HGN test before at a doctor’s office. Subjects must track moving objects, like a flashlight bulb, by moving their eyes while their heads remain still. If the pupil moves involuntarily at certain angles, the person probably has nystagmus.
If administered under controlled conditions, the HGN test is quite effective. But roadside HGN tests are not administered under controlled conditions. Flashing strobe lights pulse in the distance while cars and their headlights zoom past at high speeds. Especially if the subject is not directly under a very bright light, it’s very difficult to spot subtle pupil movements.
Additionally, many people have nystagmus and do not know it. The condition is so subtle that it only appears during periods of extreme stress, such as a DUI arrest. So, even if the person “fails” the HGN test, intoxication is probably not the reason.
One Leg Stand
In many ways, the OLS is the test that the FTN tries to be. In the One Leg Stand, subjects must elevate one leg for fifteen seconds and balance on the other leg. The OLS is a divided attention test. It measures physical dexterity and the defendant’s ability to count. Because of the way alcohol affects the brain, intoxicated people have a hard time multitasking in this way.
If a person has any mobility impairments whatsoever, it’s impossible to complete the OLS, drunk or sober. Typically, the defendant has already undergone several tests, so the defendant is already physically and mentally tired. Therefore, OLS results are often worse than they would be otherwise.
Walk and Turn
This test, which is also known as the HTW or heel-to-toe walk test, basically combines the worst elements of the HGN and OLS.
Many times, officers ask defendants to walk an imaginary line as opposed to an actual line. That’s quite difficult to do, especially in the dark. Additionally, if the surface is not flat as a table, it’s easy to lose one’s balance when walking heel to toe.
Type of shoes may be an issue as well. Officers sometimes give women the chance to remove high-heel shoes. But they do not always offer this choice, and if it’s cold or wet, removing one’s shoes is not really an option. Other kinds of footwear, such as flip-flops and cowboy boots, may affect this test as well. Officers almost never give people a chance to remove these kinds of shoes.
Connect with Tenacious Attorneys
The FSTs are stacked against the defendant. To level the playing field, you need an experienced Hutchinson DUI defense lawyer. So, contact Carlson & Jones, P.A., for a free consultation. Home and jail visits are available.