Maryland DUI attorney Ed Tayter contributed this blog post. His Maryland DUI lawyer website is available here.
In my last blog post, I described some of the clues that a police officer uses to justify an arrest for DUI or DWI. These include: driving behavior, how the driver pulled over, officer observations of the driver prior to the driver being asked to exit the vehicle, and officer observations of the driver subsequent to the driver being asked to exit the vehicle. While all of these observations are important and can lead the police officer to have probable cause to arrest a suspected drunk driver, the most persuasive observations are usually made during the Standardized Field Sobriety Tests that an officer asks a suspected drunk driver to perform immediately prior to their arrest for suspicion of DUI or DWI.
There are three Standardized Field Sobriety Tests that officers are trained to conduct. These tests are the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test. Occasionally, some officers will use other tests like Finger to Nose, Alphabet, or Counting, but these other tests have not been certified by the National Highway Traffic Safety Administration (NHTSA) and thus don’t carry the same legal weight that the NHTSA -certified Standardized Field Sobriety Tests do.
The first of the Standardized Field Sobriety Tests that an officer usually administers is the Horizontal Gaze Nystagmus Test. This test measures the involuntary jerking of the eyes as a suspect moves his or her gaze from side to side. The theory behind this test is that an unimpaired driver will have no, or very little, natural Nystagmus, but an impaired driver will have a more significant Nystagmus. But the practical problem with this theory is that there are many different things, other than impairment, that can cause Nystagmus. Some people have naturally-occurring Nystagmus – their eyes always exhibit this characteristic movement. Even people who don’t have natural Nystagmus and are not impaired can still display Nystagmus when confronted with strobe lights, rotating lights, or fast-moving traffic, particularly at night. Since these things are often present during traffic stops, an officer will almost always observe Nystagmus.
Historically, the Horizontal Gaze Nystagmus test was considered by many judges to be the most reliable test to provide an indication that a suspected DUI driver was impaired or under the influence. The judge would often reason that since Nystagmus is involuntary, it was the one test that the driver couldn’t “cheat”. As a result, the state was able to introduce the evidence gathered during the Horizontal Gaze Nystagmus test with no special pretrial preparation.
However, this changed in 2009 when the Maryland Court of Appeals issued their decision in State v. Blackwell. In Blackwell, the Court held that in order to introduce evidence gathered during the Horizontal Gaze Nystagmus test, the state must first qualify the police officer who made the observations as an expert. This ruling increased the evidentiary hurdles that the state must overcome to introduce the evidence gathered during this test, and is one of the places that a Maryland DUI lawyer can help in challenging the state’s case.