If you are accused of committing a drunk driving offense in Indiana, you will be facing two charges: Operating a Vehicle while Intoxicated (“OVWI”) and Operating with a Blood-Alcohol Concentration of .08 or Greater. The OVWI charge is based primarily on the arresting officer’s subjective observations, and can be challenged at trial. The officer’s observations will start with what he considers to be your demeanor at the time of the stop, such as whether you have “slurred speech”, “bloodshot, watery eyes”, and “the odor of alcoholic beverages about your person”. These observations will usually lead the arresting officer to ask that you perform a series of Field Sobriety Tests.
The Standardized Field Sobriety Tests were developed by the National Highway Traffic Safety Administration (“NHTSA”) in the 1970s, and were designed to assist officers in determining whether there was probable cause to believe that an individual was operating at a BAC of .10 or higher. In the 1990s, the tests were re-examined and it was concluded that they were also viable in determining a BAC at .08 or higher.
There are three Field Sobriety Tests authorized by NHTSA: the Horizontal-Gaze Nystagmus (“HGN”) Test, the Walk and Turn Test, and the One Leg Stand Test. The HGN Test involves following a pen or light while the officer checks for how smoothly your eyes follow the object. The Walk and Turn Test is designed to test your coordination, and the One Leg Stand Test is designed to test your balance. Officers will occasionally also use other Field Sobriety Tests, such as counting backwards or saying the alphabet, but these are not standardized tests, and their use as evidence is questionable.
These tests are not foolproof. Taking the HGN test alone has a success rate of approximately 77% in determining intoxication; “failing” all three of the Field Sobriety Tests has a success rate of approximately 80% in determining intoxication. This means that there is still a margin of error of between 20% and 23% that a person who “fails” these tests is not actually intoxicated. Additionally, if the tests are not administered in the proper manner, the results are considered compromised. Many officers, either because of poor training or laziness, do not perform the tests in the proper manner, making their observations and conclusions subject to attack at trial.
It is important that you understand that just because the tests may have been administered incorrectly does not mean that the officer will not be able to testify at trial as to his observations. Indiana law holds that a problem with the test goes to how credible the test is, not whether it is admissible as evidence. Aggressively pursuing whether these tests were performed in the manner required by law can put you in an excellent position to prove to the jury that you are not guilty of Operating a Vehicle while Intoxicated, and we will fight to ensure that you are in the best position to discredit the officer’s observations at trial.