The testing practices that are most often disputed in New York do not include the Breathalyzer, as one may assume, but rather are the physical tests a driver is asked to perform either at the time of arrest or at the station house. Frequently, these tests are videotaped, and a tape will be made available to defense counsel.
When a driver is pulled over because the officer believes that he is intoxicated or that some section of the VTL has been violated, when he walks over to the vehicle and has the driver open his window, he may be able to smell the odor of an alcoholic beverage coming from the driver. He may notice that additionally, the driver’s face is flushed, and his eyes are bloodshot, and he may notice that his speech is slurred. These initial observations may cause the officer to have the driver take field sobriety tests. The tests are the horizontal gaze nystagmus, the walk and turn test, and the one-leg stand test. There are other tests the officer may give, but they are not considered to be sufficiently indicative of a lack of sobriety.
The three standardized tests referred to above must be done in a prescribed manner. If they are not, the validity of the test should be challenged. Individually, none of these tests is even close to 100 percent accurate. According to Handling the DWI Case in New York, the nystagmus test was 77 percent accurate; the walk and turn, 68 percent accurate; and the one-leg stand 65 percent accurate. But when used in combination with each other, the horizontal gaze nystagmus and the walk and turn test were 80 percent accurate. This statistical fact alone brought to the attention of the jury by an expert witness will be a giant step in the direction of creating reasonable doubt as to the defendant’s guilt.
