The basic issue in the realm of roadside sobriety tests is the lack of any baseline measurements. When a police officer is confronted with a suspected DUI/DWI, the officer must determine whether that driver has been drinking or not, and if so, how much. However, the police officer has no way of knowing how that particular driver would perform on any of the tests if it were known for certain that the driver was free of any alcohol or drugs. Thus the police officer has no baseline; the officer has nothing with which to compare the results of the roadside test in order to draw a scientifically valid determination. Law enforcement agencies can point to studies which show how the average person will perform on various roadside tests when intoxicated, but because of the infinite range of possible biological variations, there are a lot of "unaverage" people. Further, officers are asked to question their DUI/DWI suspect regarding the ability to perform these tests regarding prior injuries or disabilities.

Certain roadside observations, such as disheveled clothing or an unshaven face or crooked lipstick, which sometimes show up on police reports of suspected drinking drivers, fumbling hands, are not definitive characteristics that someone has been drinking. That is because such observations are not scientific measurements, and it would be difficult to bring scientific analysis to the realm of roadside sobriety tests. If one were to analyze such observations scientifically, one would undoubtedly find a very low correlation factor between these observations and the subject's sobriety or inebriety. The attorney should simply remember that even though such things as disheveled clothes and an unshaven face have become part of the accepted stereotype of the drunk, such traits are not peculiar to drunks. At the Law Offices of Jason C. Pollack, we fight to show that the arresting officer fell prey to the stereotype, and that officer's credibility can be undermined.

Of the three tests recommended by the NHTSA for field sobriety testing ( walk-and- turn, one-leg stand and nystagmus), each was tested alone in a laboratory setting to determine its ability to determine whether a suspect has a BAC below or above 0.10 percent.

The walk-and- turn test was correct 75.1 percent of the time, the one-leg stand was correct 75.5 percent, and the nystagmus test, 81.8 percent. When all three tests were given together, a correct analysis was done 83.4 percent of the time. These results agreed with a Finnish study, which reported the nystagmus test is the most valuable way to determine intoxication. The nystagmus test is also the best because it involves an involuntary, uncontrollable action that cannot be practiced unlike the other tests.

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