I know the title is a little provocative, but it is a question worth examining.

Today, one of the nation’s best DUI lawyers, Lawrence Taylor, posted on his blog, the DUI blog (which is a must read), a post entitled “A ‘Fraudulent’ Field Sobriety Test?”

Within his blog post, he writes about a peer-reviewed article from Science and Justice:

This summary critique [of the HGN test] demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

He further writes:

Deliberate fraud. Pretty strong language for a scientific journal. After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The scientific article reads:

The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.

In other words, it is not science.  I could not agree more.  I have written on this before Are the Field Sobriety Tests Scientifically Proven?

The roadside tests are not unlike the old David Letterman Show acts of Stupid Pet Tricks.  The truth is that it does not matter how well you preform on them, you are going to be arrested.  If there is an odor of alcohol and you admit to drinking at all, if you fail the roadside tests, then you are going to be arrested.  If there is an odor of alcohol and you admit to drinking at all, if you PASS the roadside tests, then you are going to be arrested because the officer will say that you must be an alcoholic and/or tolerant.  So, it really does not matter.  The only logical conclusion is to just say no to the glorified stupid human tricks.

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.