Poking Holes: Virginia DUI Test Problems

Poking Holes in Virginia DUI Tests: by our Fairfax DWI Lawyer

Fairfax dui lawyer
When police ask an individual to complete a roadside test to determine intoxication, there are certain standards that must be applied in all circumstances in order for the results to be accurate. An experienced criminal attorney and local Fairfax DUI lawyer will be able to identify various factors that may have resulted in a false positive during the testing of an individual and thus negate the conclusion by the officer that probable cause exists. Here are three tests police use and a study which a Virginia criminal lawyer  might use when arguing a defendants case in court.

“The 1981 SCRI Study” as explained by our award winning Fairfax DUI lawyer

Development & Field Test of Psychophysical Tests for DWI Arrests, March, 1981; Authors: V. Tharp, Marcelline Burns and Herbert Moskowitz, 98 pages; Performing Organization: Southern California Research Institute; Department of Transportation Number DOT HS 805 864.

This was a study conducted in Southern California during the early 1980’s. Though the test is over 20 years old it is still quoted in every SFST manual to date and has been said to be one the most important Field Sobriety Studies by many in the field.

WALK-and-TURN – Virginia DUI Tests 1

First, we will look at the results of the walk and turn test which showed that balancing heal to toe while listening to instructions increased ones sensitivity to alcohol. The researches noted that sensitivity also increased when participants were asked to watch their feet during the test, but stated that this part of the test made it difficult for people with monocular vision and poor depth perception to pass the test regardless of alcohol consumption. This is a crack which a competent Fairfax DWI Lawyer and Northern Fairfax criminal attorney may be able to expose given the right facts in a given case.

Another important aspect of a proper walk and turn test is that there must be enough light not only located on the ground so that the subject can see where they were stepping, but as well as, light in the surrounding area in order to give the subject a proper frame of reference.

A good Fairfax, VA DWI Attorney will be able to question the officer in your case regarding the walk and turn test and ask if he gave you enough light and a frame of reference to properly conduct the test with accurate results.

This test also found that people over 65, those with back, leg or middle-ear problems and those wearing high heal shoes had difficulty performing the walk and turn test even when sober. The researches recommended that only the HGN test be used with these people.


There are several aspects of the One-leg-stand test which a Fairfax DUI Lawyer can attack to negate the findings of the test. For example, a test could be negated if a driver were pulled over and asked to compete the one leg stand test on a surface that was not completely flat.

Researchers found that it was extremely important for the subject to see in order to orient herself and secondly, the police officer must stand several feet away from the subject in order to provide an ‘artificial frame of reference’ which could distract the subject. The research states,

Generally, if the stopee cannot see or orient with respect to a perpendicular frame of reference then this test will be difficult to perform even if sober.

Under sober conditions those with back, leg or middle-ear problems, those 65 years of age or older, people 50 lbs overweight and people wearing high heels found it difficult to complete the test. If an individual falls under one of these categories an accomplished Virginia or Northern Virginia local Fairfax Criminal Lawyer will be able to pin point different facts of your case which can be used in an individual’s defense against bias tests the police might conduct during a traffic stop.

It is important to feel comfortable with your local Fairfax DWI attorney’s ability to remain comfortable at trial if he or she must ask the officer a series of questions about whether they gave the driver a proper frame of reference during the test. If the officer has the slightest feeling that he may have administered the test incorrectly he will answer ‘no’ which will give an attorney the opportunity to impeach the officer.

Finally, the researchers state that in order for the results to be accurate, the One-Leg-Stand test must be performed only on a hard, dry, level, non-slippery surface under relatively safe conditions. One factor in many tests that an experienced Fairfax DUI lawyer can attack is the fact that many tests are not done on a completely level plain. If the test is performed on the side of the road or the road is crowned/graded heavily because of large amounts of rain in the area the test will not stand in court due to the standards of the test. If these simple standards are not met during any of the tests the attorney’s job is to attack these variances in the application of the test.

HGN – Horizontal Nystagmus Test

In this study there were several variables that were found to be important for the observer (police officer) when trying to record the nystagmus. If the room was poorly lit the observer must use a flashlight in order to illuminate the eyes of the subject. The stimulus (pen or finger) must be held above and not below or at eye level. This is in order to reduce the squinting of the participant and allows the observer to clearly see the eye movements.

It is interesting to note that the research indicated that the Gaze-Nystagmus-Test was not accurate for all individuals and some could be identified in groups. Those who wore hard contact lenses had a harder time completing the test due to the lateral eye movement that is required by the test but inhibited by the lenses. Three percent of the population has early-onset nystagmus, and impaired balance, when alcohol was absent from their systems. It also found that possible effects of fatigue or circadian rhythms on gaze nystagmus could be significant later at night when most of the arrests for intoxicated individuals occur.

Read more about Vincenzes Law via our profile on legaldocs

The following two tabs change content below.
Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.


Speak Your Mind