I have represented the citizens of Pennsylvania in thousands of DUI cases.  One thing I have seen is that prosecutors put far too much emphasis of these roadside tests.

These tests are designed to put people in unusual body positions doing impractical acts.  People do not normally walk around literally walking heel-to-toe on a straight line counting out loud.  No one routinely lifts one leg off the ground for 30 seconds and is not allowed to use their arms to balance.

In fact, in the original research by the Southern California Research Institute and printed directly in both the Practitioner and the Instructor guides it specifically reads “Categories Of People Who Would Have Difficulty & Should Not Be Tested—People who are Older than 65.  People with Back, leg or middle ear problems.  Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. R10/95 VIII-21; R2/00 VIII-12; R1/02 VIII-11; R9/04 VIII-11; R2I06 VIII-11 and People overweight by 50 or more pounds R10/95 VII-5; R10/95 VIII-25; R2/00 VIII-14; R1/02 VIII-13; R9/04 VIII-11; R2/06 VIII-14

Having said that, it is what it is.  Prosecutors try to force the juries to drink the proverbial Kool-Aid and try to report it as empirical science.  They are inundated with “HGN (horizontal gaze nystagmus) cannot be faked” and “it is the most reliable and objective scientific test out of the 3”.  Both of which are utterly silly, unscientific conclusions.  Pure Propaganda.

The issue with these roadside tests is that they are NOT peer-reviewed, verified scientific methods yielding true empirical results.

If it is presented to the fact-finder (the juror) as science as the Government does, then the fact finder will believe it to be logical, empirical and not fungible.  If defense attorneys and the accused stand moot and allow it to be so presented and simply ask for it to be dismissed because it is “voo-do” or because of some hyper technical reason such as the stimulus was moved a half second too quickly, then the jury will likely not connect with that concept, but rather accept the Government’s proposed “science” as true.

Stated more simply, if you take the attitude of “forget that test” or in the alternative “it is science but only if it is administered and graded according to the detailed manner it was designed to be given without deviation to yield valid results”, then we either give the fact finder no reason to use logic to disregard it in the case of the former or an implicit validation of the foundation of the underlying junk science in the case of the latter.  Both of which are clear losers in my experience.

In my opinion, the better way to combat the Government’s junk science is with true verified and peer reviewed actual science from credentialed clinicians with advanced scientific degrees in the discipline that they are researching and reporting AND NOT the biased police “scientists” who do not have hard science degrees and credentials in the field that they are studying.  Furthermore, these police "scientists" do not adhere to scientific method or even basic statistics, but rather engage in their research in an intellectually and scientifically impermissible way in openly engaging in wide-scale contextual bias in their examination of any given issue.

If it is a choice between the first type of scientist described above (i.e., true verified and peer reviewed actual science from credentialed clinicians with advanced scientific degrees in the discipline that they are researching and reporting) versus the second type of scientist described above (the biased police “scientists” who do not have hard science degrees and credentials in the field that they are studying who further do not use the scientific method or even basic statistics, but rather engage in their research in an intellectually and scientifically impermissible way in openly engaging in wide-scale contextual bias in their examination of any given issue), then logic would dictate confidence in the conclusions of the first type of scientist over the second type, would it not?

In short, in my opinion, it is vitally important to show the fact finder empirically and scientifically why and HOW it is important to disregard the invalid pseudo-scientific conclusions that NHTSA and SCRI and the government are trying to draw.  Articles like the attached and the below referenced ones are good ammunition for that.  They are peer reviewed.  They are produced by true credentialed scientists who are operating well within the scope of their training, knowledge and experience.  They have been vetted prior to and after publication by the scientific community.

 “Attacking NHTSA’S Three Test Field Sobriety Assessment”
 “Development and Field Test of Psychophysical Test for DWI Arrest”
 “Divided Attention Performance in Cannabis Users and Non Users Following Alcohol and Cannabis Separately and in Combination”
 “Drug Interactions: The Effects of Alcohol and Meprbabmate Applied Singly and Jointly in human Subjects”
 “Effect of Subacute Treatment with hypnotics, Alone or in Combination with Alcohol on Psychomotor Skills Related to Driving”
 “Effect of Tricyclic Antidepressants and Alcohol on Psychomotor Skills Related to Driving”
 “Effects of Acute Exposure of Toluene and Methyl Ethyl Ketone on Psychomotor Performance”
 “Effects of Alcohol on Performance in Continuous Attention Tasks”
 “Effects of Alcohol on Psychomotor Performance of Men and Women”
 “Effects of Alcoholic Beverages and Congeners on Psychomotor Skills in Old and Young Subjects”
 “Effects of Ethanol On psychomotor Performance”
 “Effects of Hangover on Psychomotor Skills Related to Driving, Modification by Fructose and Glucose”
 “Effects of Rate of Drinking on Human Performance”
 “Field Evaluation of a Behavioral Test Battery for DWI”
 “Field Sobriety Exercises: Are they really admissible?”
 “Field Sobriety Test: I May Flunk, but I Ain’t Drunk”
 “Improved Sobriety Testing, Gaze Nystagmus, Walk and Turn and One Leg Stand Tests”
 “Indexing Cognitive Tests to Alcohol Dosage and Comparison to Standardized Field Sobriety Tests 1”
 “Indexing Cognitive Tests to Alcohol Dosage and Comparison to Standardized Field Sobriety Tests 2”
 “Influence of Experience in Clinical Examination of Drunkenness”
 “Low and Moderate Alcohol Doses, Psychomotor Performance and Perceived Drowsiness”
 “Mental Task Test and Heart Rate Level in Alcohol Intoxication Process”
 “Psychophysical Test for DWI Arrest”
 “Rombergs Test in the Cerebellar Syndrome Occurring in Chronic Alcoholism”
 “Sensorimotor and Physiological Effects of Various Alcoholic Beverages”
 “Spatial Learning of Visual Nonsense Figures during Experimental Ethanol Intoxication”
 “Statistical Evaluation of Standardized Field Sobriety Test”
 “Testing the Impaired Driver”
 “The Accuracy of Estimating the Sobriety of Drinking Drivers”
 “The Effects of Alcohol on Skilled Performance”
 “The Effects of Alcohol, Marijuana and Diazepam on Divided Attention Task: Traffic Authority of New South Wales”
 “The Relationship between Alcohol Dosage and Performance Decrement in Humans”
 “Two Weeks Treatment with Chlorpromazine, Thioridazine, Sulpiride or Bromazepam, Actions and Interactions with Alcohol on … Driving”
 “Validation of Human Behavioral Test Using Ethanol as a CNS Depressant Model”
 “Variability in Behavioral Impairment Involved in the Rising and Falling BAC Curve”
 “Walk on Floor Eyes Closed: A New Addition to an Ataxia Test Battery”
 “Body Sway and Divided Attention Performance under the Influence of Alcohol Dose Response Differences between Males and Females”
 “Ethanol Induced Changes in Body Sway in Men at High Alcoholism Risk”
 “Positional Nystagmus and Body Sway After Alcohol Ingestion” 
 “Critical flicker fusion and finger oscillation as functions of blood alcohol concentration: An Examination of acute tolerance in primary sensory and motor functions. Part 1”
 “Critical Flicker Fusion and Finger Oscillation as Functions of Blood alcohol concentration: An Examination of acute tolerance in primary sensory and motor functions. Part 2” 
 “Delayed Auditory Feedback and Ethanol Effect on Verbal and Arithmetical Performance” 
 “Differential Effect of Alcohol on Auditory Vigilance and Divided Attention Tasks”
 “Effects of Different Alcohol Dosages and Display Illumination on Tracking Performance during Vestibular Stimulation”
 “Effects of Xylene and Alcohol on Vestibular and Visual Functions in Man”
 “Influence of Alcohol on Vestibular and Optokinetic Reactions Recorded Electronystagmographically”
 “Some Effects of Alcohol on Vestibular Responses” 
 “Sobriety Tests for the Presence of Drugs”
 “Action of Alcohol on Visual and Retinal Responses to Intermittent Illumination”
 “Alcohol and Human Eye Movement”
 “Alcohol and Marijuana Effects on Ocular Tracking”
 “Alcohol and the Oculomotor System”
 “Alcohol intoxication reduces visual sustained attention”
 “Alcohol Prolongs Time Course of Glare Recovery”
 “Alcoholic Downbeat Nystagmus”
 “Aspects of the Eyeblink during Simulated Driving as a Function of Alcohol”
 “Barbituate Nystagmus and the Mechanisms of Visual Fixation”
 “Diagnosis of Alcohol Intoxication by the Optokinetic Test”
 “Different Types of Alcohol Nystagmus”
 “Driver Eye Movements as a Function of Low Blood Alcohol Concentrations 1”
 “Driver Eye Movements as a Function of Low Blood Alcohol Concentrations 2”
 “Driver Eye Movements as a Function of Low Blood Alcohol Concentrations 3”
 “Effect of Alcohol and Marijuana on Eye Movements”
 “Effect of Alcohol on Auditory and Visual Time Perception”
 “Effect of Alcohol on Binocular Vision”
 “Effect of Congeners in Alcoholic Beverages on the Incidence of Nystagmus”
 “Effect of Gravity on Positional Alcohol Nystagmus Phase 2 in Man”
 “Effects and After Effects of Alcohol, Tranquillizers and Fatigue on Ocular Phenomena”
 “Effects of Alcohol and Other Psychotropic Drugs on Eye Movements, Relevance to Traffic Safety”
 “Effects of Alcohol Conditioning and Expectancy on a visuo motor integration task”
 “Effects of Alcohol on Nystagmus and Tracking Performance during Laboratory Angular Accelerations about the Y and Z Axes”
 “Effects of alcohol on peripheral vision as a function of attention”
 “Effects of Alcohol on Visual Accommodation and Eye Movement Latency”
 “Effects of Ethanol on Eye Tracking in Rhesus Monkeys and Humans”
 “Effects of Ethyl Alcohol on Visual Pursuit and Suppression of the Vestibulo Ocular Reflex”
 “Eye Movement Control in Primates” “Eye Signs in Suspected Drinking Drivers, Clinical Examination and Relation to Blood Alcohol”
 “Gaze Nystagmus and Blood Alcohol” “Horizontal Gaze Nystagmus Sobriety Test Procedures”
 “Horizontal Gaze Nystagmus Test: The State of Science in 1995"
 “Horizontal Gaze Nystagmus: The New Drunk Driving Alchemy”
 “Influence of Alcohol on Vestibular and Optokinetic Reactions Recorded Electronystagmographically”
 “Ingested Ethanol as a Factor in Double Vision”
 “Inter Saccadic Interval Analysis of Vestibular Nystagmus”
 “Is the Driver Drunk? Oculomotor Sobriety Testing”
 “Noninvasive estimation of blood alcohol concentrations ethanol vapor above the eye”
 “Nystagmography, Recording of Nystagmus in Clinical Neuro Otological Examinations”
 “Nystagmus and Other Eye Signs in Acute Alcoholism”
 “Nystagmus as a Physical Sign in Alcoholic Intoxication”
 “On the Origin of Positional Alcohol Nystagmus”
 “Optokinetics after Alcohol Intake”
 “Optometric Expert Testimony, Foundation for the Horizontal Gaze Nystagmus Test”
 “Periodic Alternating Nystagmus in Phenytoin Intoxication, Clinical Experience in 27 Cases Confirmed by Urine Assay”
 “Perovskite Type Oxides as Ethanol Sensors” “Positional Alcoholic Nystagmus, PAN, In Man Following Repeated Alcohol Doses”
 “Positional Nystagmus” “Positional Nystagmus and Body Sway after Alcohol Ingestion”
 “Positional Nystagmus from Ingestion of Alcohol, Heavy Water and Glycerol”
 “Positional Nystagmus of the Central Type as an Early Sign of Multiple Sclerosis”
 “Potential for Application of Corneal Retinal Potential Measurements to Detect Alcohol and Drug Use: A Report to Congress”
 “Pupil Size after Use of Marijuana and Alcohol”
 “Quantitation of Ethyl Alcohol in the Postmortem Vitreous Humor”
 “Quantitative Effects of Ethanol Infusion on Smooth Pursuit Eye Movements in Man”
 “Relationship between Postmortem Blood and Vitreous Humor Ethanol Levels”
 “Relationships between Blood Alcohol Positional Alcohol Nystagmus and Postural Equilibrium”
 “Report of the Working Party on Ocular and Visual Phenomena”
 “Some Effects of Alcohol on Nystagmus and Vertigo during Caoric and Optokinetic Stimulation”
 “Some Effects of Alcohol on various Aspects of Oculomotor Control”
 “Studies of Positional Nystagmus in the Human Centrifuge”
 “Synergistic Effects of Alcohol, Methapyriline, and Chlordiazepoxide on Drivers Eye Movements and Tracking Errors in Simulated Dangerous Situations”
 “The Correlation of Angle of Onset of Nystagmus with Blood Alcohol Level, Report of a Field Trial”
 “The Effect of Alcohol on Vision”
 “The Effect of Blood Alcohol Concentration on the Onset of Gaze Nystagmus”
 “The Frequency Response of Horizontal Pursuit Movements of the Human Eye and the Influence of Alcohol”
 “The rapid eye test is gaining popularity because of the high cost of blood and urine testing and the controversy over privacy rights”
 “The Relationship between Saccadic and Smooth Tracking Eye Movement”
 “Unreliability of Horizontal Gaze Nystagmus Test”
 “Vestibular and Optokinetic Responses to Diazepam and Alcohol”
 “Visual Evoked Response and Alcohol Intoxication”

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.