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Editor: Bob Battle
Profession: DUI Defense Lawyer

Category: Recent Wins

In Bob Battle's article (which is reprinted on his website) titled "Ex-Prosecutor Bob Battle Reveals: 8 Secrets Your Prosecutor Doesn't Want You To Know About Your Virginia DUI" secret number 7 is "The police officer did not follow proper procedures for the field sobriety test." Two recent DUI wins underscore this principle.

In a DUI trial in Arlington, Virginia, the police officer insisted on giving the defendant the walk-and-turn test even though the defendant was over 100 pounds overweight and disabled. At trial, it became abundantly clear on cross examination that the officer had no idea that the National Highway Traffic Safety Administration ("NHTSA") manual states that the walk-and-turn and one-leg stand test should not be done if the suspect is over 50 pounds overweight or has physical impairments that could affect his balance. At the end of the trial the defendant was found not guilty by the judge.

In a DUI trial in federal court in Alexandria, Virginia, the defendant was arrested after drinking at a club on the Marine Corps base at Quantico. One of the tests that the officer reported that the defendant "failed" was the "follow the pen with your eyes" test (the horizontal gaze nystagmus test, or HGN). Although there are countless objections to this "test," the NHTSA manual states that the officer should examine the suspect for 6 clues. If 4 or more clues are present, the suspect has "failed" the test. Although the officer stated the defendant "failed" this test, his notes showed that there were only 2 clues present, which is a pass! The prosecutor dismissed the DUI charge.