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A commonly-used means by which police determine whether a driver is under the influence of drugs or alcohol is the field sobriety test. Failing one or more of these tests cannot only lead to an arrest for DUI, it can possibly also be used by the prosecution as evidence at trial.

Field sobriety tests are not, however, foolproof. To begin with, they are of limited evidentiary value. They may only indicate intoxication; they are not proof of it. Moreover, even a test that may seem to suggest intoxication might not hold up in court if reasonable doubt can be cast on the way that a police officer conducted it. Field sobriety tests need to be administered correctly to be valid. Even seemingly minor mistakes by the officer during the testing can open the door to a challenge of the test results.

For example, consider the "horizontal gaze nystagmus" test. This test involves instructing and then having the test subject follow the track of a stimulus object, such as a flashlight, with each of his or her eyes while holding still. Although the test sounds simple to administer, there are several ways that the police officer can make mistakes that may invalidate it.

The test itself consists of four phases and 14 passes of the stimulus object. The requirements on how the test subject is to be positioned must be followed with exactitude, including how far from the subject's nose the stimulus object should be held, how quickly it should be moved, the maximum angle of deviation that should be used, and the minimum time that should be spent conducting the test. If the test takes less than 90 seconds to complete, then it is suspect because the officer may have performed it too quickly.

For anyone accused of DUI based at least in part on the results of field sobriety tests, it is important to remember not only that the police officer who administered the test needs to have precisely followed the correct procedure, but also that the defense attorney be familiar with the details of the relevant test requirements. A New York attorney experienced with DUI defense should know what to look for when it comes errors that the officer may have made when administering a field sobriety test.

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