Common Sense

Arthur Anderson goes down. Enron goes down. Big CEOs in jail. The nation woke up one day and said enough is enough. Don't tell us that just because you hire the best accounting firm you can create your own tax breaks by creating sham companies; just because the SEC in the past has winked at insider trading we are going to continue to allow the big CEOs to get rich because they know when to trade or sell (even going after small trades like the Martha Stewart case). Whether or not all those involved in the crackdown were deserving (in the Anderson case apparently one nose bleed CPA type brought the whole firm down due to bad ethics) I cannot say but what it obvious is that the press through the nation got the legislators and judges concerned and the rest is history. The same needs to happen for DWI. Bad ass lawyers have a job to do but we don't serve as the press. Some of the 1.4 million DWI arrestees (this statistic in contrast to NHTSAs approx. 17k alcohol related deaths) need to stand up and cry foul !! This country has a huge embarrasing problem when we are arresting 99 people for the one idiot who drank too much and killed someone. I WILL BE THE ONE TO SAY IT AND CALL A SPADE A SPADE: BASICALLY ANYONE WHO GETS PULLED OVER WITH ALCOHOL ON THEIR BREATH IS GOING TO JAIL. The field sobriety tests are designed for failure and are ridiculous (this country would go into fullscale war if we made people do these tests to get their driver's licenses on the same NHTSA grading scales). Why the hell do we use breath test technology for evidentiary purposes when for all practical purposes you cannot retest the samples and the tolerance between two samples is so damn high that the body cannot even physically metabolize the difference (.02) within the 2 required minutes ?!? Give me a break why don't ya ?! Now we have a MINIMUM $3k surcharge from Texas DPS you have to pay once you get convicted on top of fines, court costs and court related expenses ?! That is double punishment (OR DOUBLE JEOPARDY FOR YOU JUDGES AND LEGISLATORS READING THIS BLOG AND CAN DO SOMETHING ABOUT IT) and serves NO purpose except for people like me to say "Texas DPS is in the business of making money." This is no different than in the wild west days the local powers that be (the women's Temperance unions because you know the sheriff's were enjoying some drinks at the local saloon) would tax the hell out of liquor establishments to try to get rid of them. Women would parade around town with sign that said something to the effect of: "No lips that have touched liquor will touch mine" (the pics one can find are hilarious !). Yet history repeats itself - the women's temperance union of the 1800s have now turned into MADD. MADD is not about helping victims anymore (even their founder claims this and has left the organization: Candy Lightner whose daughter was killed in a DWI) they are about creating victims: the responsible social drinker into an undeserved criminal. Mend need to quit being impotent and stand up to this nonsense- pillowtalk aside, geez ! Women need to quite lumping everybody together in blind distraction of the real victims out there. Common sense which is not so common anymore......... QUOTE ME, BRAND ME, MAKE ME THE WHIPPING BOY (girl that is) I DON'T CARE. I CONSIDER IT AN HONOR. I AM NOT IMPOTENT, POWERLESS. I HAVE COMMON SENSE AND I AM NOT AFRAID. I AM A PROUD AMERICAN AND AMERICA NEEDS ME AND YOU RIGHT NOW ! HISTORY REPEATS ITSELF.... 100, 200 YEARS FROM NOW SOMEONE WILL REMEMBER AND CALL A SPADE A SPADE. I WILL BE ON THE RIGHT SIDE OF THIS WAR. Now everyone: if you do drink, go forth and drink responsibly. Mimi Coffey

Out Of Control

There are a lot of wrongs in life that you just can't do anything about. The whole idea about a justice system and a penal code is determining what is a wrong and what should be done about that, meting out a just remedy or punishment. Part and parcel to these notions is the blind lady of justice or the notion that justice is irrespective of race, gender, partiality or favoritism. You would think that years of education and law school would make one better trained at throwing out biases when seeking justice and calling a spade a spade. I mean if you don't box, you may not want to get in the ring to avoid the punches but boxers know win or lose there will be punches. Why can't judges throw out the biases when it comes to cops ? Some of the punches in the ring have to go to the defense because that is just a reality. Sometimes the cops and the prosecutors have to take a punch. Why some judges are hesitant to this reality I can only assume is due to the politics of DWI. Slavery use to be legal due to the politics of its time despite its unconstitutionality. Politics has a history of justifying wrongs which history eventually sheds light on. The good ones (judges that is) do of course, but I find it incredulous how just because people wear badges their mistakes get excused under legalese designed to create grey areas in the presence of black and white. I can't explain why this happens (fear of reprisal ? bad word of mouth in the law enforcement community ? trying to score brownie points with prosecutors so they don't run against them in the next election ? who knows ?) All I is know is the aftermath .... what happens when you don't call it like it is. The truth is you create a monster. Whether it's cops or wannabe American Idols- if you dont' shoot straight with them everyone suffers. The difference with cops is they tend to destroy more than one's sense of good music taste; they have the power to destroy lives. A good example of how ludicrous this can get is by renting the Worst of American Idol (seasons 1-4). This young man seriously auditioned by singing Madonna's "Like a Virgin." The only thing that can be said more shocking than his performance is that his audition was done in earnest; it was not a joke. Afterwards he was asked how his parents and friends felt about his singing, he rplied that no one had ever told him what the judges had told him(that he was seriously bad and that he should stop singing all together). To see his shock at this line of questioning and the judges' responses defied all common sense. My concern just as a viewer was what cruel infuences he has had in life to put him up to this. Unfortunately I get to see this up close and in person with cops that turn into monsters because judges and prosecutors won't at times (and certainly not all) call a spade a spade. Years ago in one of my very first motions to suppresss where the entire stop was captured on video and my client had done nothing illegal to get pulled over, the cop took the stand and explained that due to video resolution the tape couldn't show the weaving. As I sat there taking this all in, in my naivete I thought he had to be one of the dumbest and most dishonest cops possible. My dumboundedness was only broke when I entered the twilight zone as the judge denied my motion without hesitating for a second. I wish I could go back in time to see his reaction (for sociologists and FBI profilers I am sure it would have been telling) but I was too shocked. Since that motion years ago, when that cop learned he could get away with anything I must witness and deal with his more dangerous acts. Now he literally puts people's lives in danger. One of my clients was speeding to the hospital to get his wounded girlfriend to the emergency when he gets pulled over by him and after a brief assessment of how serious his girlfriend's condition was (his own narration on the video) proceeded to conduct a 20 minute DWI investigation and arrest before calling the ambulance. Now has gone so far as to arresting fellow officers who are not guilty (his own admission of knowing he would lose the case to the prosecutor) for DWI. Next, I am sure he will work his way up to prosecutors and judges if he gets the chance. He is already terrrorizing the public with his unjust DWI arrests. Another one of his arrests was a girl woke up from a dead sleep who rushed to a local restaurant to check on the burglar alarm (hadn't even put on her shoes). Rather than appropriately investigate the alarm, he arrests her for DWI. I could go on and on and on.... I guess it will take one of the brass (a prosecutor or judge) getting arrested before they see the monster they have created. In his own false world, I am sure he thinks he is a hero.... until another cop gets a hold of him. Word on the street among officers is (as I have been told) he better not get caught asking for help outside his jurisdiction. Now, that is sad... when fellow officers know there is a problem before the courts are willing to do something about it. . At least, I can sleep at night knowing I've tried and keep on trying to do what is right- this is all I can do. But the silver lining in the clouds is what good prosecutors and judges can do. No justice system is perfect, that's why we must have defense lawyers, prosecutors and judges working together to bring about the best possible results. There are plenty of good judges and prosecutors nipping those Frankensteins in the bud.... just one example of how dangerous it is when even one slips away. Post comments....... Johnnie Cochran wrote in his autobiographical A Lawyer's Life , p.111 "Furhman lied because he felt comfortable lying in a courtroom, because the system had always tolerated his lying; judges looked the other way and jurors were supposed to accept it. But not this time, not this time." Turning a blind eye to exaggerated truths by law enforcement officers is a national problem, I just hate to see it in my own backyard, the backyard I took an oath to monitor and protect in my role as a defense lawyer.

Choosing The Right Trial Attorney

What does this mean?

At the Law Firm of Mimi Coffey, great care and preparation is taken to investigate the many facets of a particular Texas DWI defense case. We review many factors in order to comprehend what occurred, has there been an injustice or is it a matter that the state can not meet its elements? A Texas DWI can differ in many respects from other criminal cases. For one, it is an accusation that largely rests on opinions. What may be intoxicated to one of us, may not be to another. Police officers are given much power when it comes to these arrest decisions that can remarkably alter people's lives. That is why, here at the Law Firm of Mimi Coffey we are very interested in the source of those opinions.

What is their Texas DWI law training?

Do they attend refresher courses on Texas DWI law standardized field sobriety testing?

Do they know how to properly administer the Texas DWI tests?

The reality of the situation is that many Texas DWI police reports look the same, the testimony of the police officers sound the same, and yet the facts of the cases testified to are remarkably different and the real issue of sobriety can be masked by official sounding terms and questionable test results. It is our job to know these differences and how to bring them to light.

It is our goal to seek justice for every one of our clients. Our obligation is first to our client, but in so doing we feel that we are serving the community by protecting America's constitutional and statutory freedoms for each and every one of us. Not all people are guilty, and when a person is there should be a punishment that fits the crime. Texas DWI laws are necessary; however it is equally as important that we first and foremost protect the rights of the citizen, all too often overlooked in the overzealous politics of the fervor of Texas DWI law.

Some of the Things that the Law Firm of Mimi Coffey looks into by focusing on Texas DWI's:

OFFICERS:

Training History: NHTSA Standardized Field Sobriety Tests training? when & where? any updates? Proficiency status in HGN?

Common Characteristics: Arrests routinely made within a certain mile or radius of a particular bar or bar(s)?

Motivation to Testify: Motivation for testimony due to marginal arrests? How much money in overtime are they making?

In focusing on Texas DWI's we become familiar with various police department policies regarding Texas DWI arrests.

For example:

In Car Camera Videos: Which departments have them?

Back Up Officer Policy: What are their policies regarding the investigation, arrest, and tow procedure?

Chemical Specimen Policy: Do they always offer breath tests? Are blood tests only offered on accident cases?

Quota Policy: Which departments have quotas? Are there any memorandums documenting such?

Protocol Code language regarding Texas DWI's

We take our responsibility at the Law Firm of Mimi Coffey very seriously. In the preservation of our files, we are able to keep track of bad stops by police officers as well as bad arrests. Among other things, we also obtain and archive.

Transcripts of past trials, on past officers which we believe will help our clients in the future.

Police Officer Personnel Files on various police officers through open records requests.

Videotapes

Maintenance and Inspection logs on various Intoxilyzer machines.

*We feel that these things among others are important in the skillful, knowledgeable and sincere representation of our clients. We are proud of our level of representation and commitment to our clients in the pursuit of justice. It is our mission to not only provide such high caliber level of service but to continue to seek new and innovative ways to better assist us in such pursuit.

We would like to consider ourselves "Watchdogs" of proper DWI - Law Enforcement. DWI laws are good and should be enforced, however, they should not be abused in taking away people's rights to be responsible social drinkers.

What many people fail to realize is that DWI is not just a misdemeanor or felony offense. It costs jobs, it involves serious possible license suspensions, and may effect someone the rest of their life. The conviction never goes off your record. It is not nor should it be a conviction for political expediency reasons or one based on morals and attitudes toward drinking. We at the Law Firm of Mimi Coffey believe that justice is alive and well and deserving of all. We strive to see that justice is done for each and every one of our clients.

DWI-Modern Day Salem Witch Hunts

DWI-Modern Day Salem Witch Hunts

By: Mimi Coffey


Judge Daryl Coffey of County Criminal Court number 8, in Tarrant County, Texas once remarked to me that all a prosecutor has to do to win a DWI case is just make sure that the three letters “DWI” are mentioned at least 15 times in a trial.1 It is this type of environment that has allowed history to repeat itself. All we have to do is look back to the Salem Witch Hunt trials of 1692 where 19 convicted “witches” lost their lives on “specter” evidence.2 Evidence in DWI trials has not come a long way from 1692 where claims of apparitions only visible to their victims were enough to get one hung. The greatest challenge to DWI practitioners these days and to those accused of DWI/DUI related crimes is that courtrooms have not kept pace with the science. Bad science is rubberstamped with approval by the majority of the judiciary as long as the government sponsors it.

Horizontal Gaze Nystagmus

The horizontal gaze nystagmus test, or HGN, is alleged to be 77% accurate (80% accurate with the W&T) in determining if a person is .10 BAC3 or more.4 The first problem with this test is the particularity. Police officers are not ophthalmologists trained in the detection of eye movements and or eye pathologies. There are forty-seven types of nystagmus in individuals, separate from Horizontal Nystagmus:

(1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced, somatosensory); (4) Associated (induced, Stransky’s); (5) Audio kinetic (induced); (6) Bartel’s (induced); (7) Brun’s; (8) Centripetal; (9) Cervical (neck torsion, vestibular-basilar artery insufficiency); (10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital (fixation, hereditary); (12) Convergence; (13) Convergence-evoked; (14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced (barbituate, bow tie, induced); (17) Epileptic (ictal); (18) Flash induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in); (20) Horizontal; (21) Induced (provoked); (22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent (monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid; (27) Miner’s (occupational); (28) Muscle-Paretic (myasthenic); (29) Optokinetic (induced, optomotor, panoramic, railway, sigma); (30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic); (31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating; (33) Physiologic (end-point, fatigue); (34) Pursuit After-induced; (35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38) Reflex (Baer’s); (39) See-Saw; (40) Somatosensory; (41) Spontaneous; (42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat; (46) Vertical; (47) Vestibular (ageotropic, geotropic, Bechterew’s, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.5

It is unrealistic given this extensive laundry list -which includes medical conditions- that a police officer can make the important distinction that he is indeed observing horizontal gaze nystagmus. Even if he could, the next issue is causation. Officers jump to an incorrect premise that if they do isolate horizontal gaze nystagmus this must be indicative of ethanol intoxication. There are actually 38 different causes of horizontal gaze nystagmus unrelated to alcohol as judicially recognized in Schultz v. State:

(1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff’s syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eyestrain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide; (35) extreme chilling; (36) lesions; (37) continuous movement of the visual field past the eyes; and, (38) antihistamine use.6

Another real problem with the horizontal gaze nystagmus test is the timing of its presence and an actual alcohol concentration. The HGN, as administered by the National Highway Transportation Safety Administration’s (NHTSA) protocol for the Standarized Field Sobriety Tests (SFST) has been cited as the only reliable index of blood alcohol when examined for its ability to distinguish BACs under and over .04% within the .00-.08% range.7 So it is a fallacy to use this test to determine that someone may be over .08 BAC. What is also alarming is the fact that nystagmus can remain for some time once the BAC has reached .000. In a dose/response study of 89 subjects,8 62% of the dosed subjects exhibited nystagmus in one or both eyes at BAC levels of .00% when tested immediately after all alcohol was cleared from their blood and 56% of those subjects still exhibited nystagmus one hour later.9 In the same study, it was determined from 66 healthy, well-rested subjects10 who did not consume any alcohol and completed 5.5 to 8.0 hours of sleep after being awake for 9 to 14.5 hours (average 11.2) that they had distinct nystagmus in one or both eyes.11 Afterwards these same subjects were re-examined with an average awake time of 24.5 hours and distinct end position nystagmus was observed in one or both eyes in 55% of the group.12 What is particularly troublesome is the stamp of imprimatur by the American Optometric Association13 touted by prosecutors in laying the foundation for the test ’ s admissibility.14 It is important to distinguish that no such resolution of acceptance for the HGN exists by the American Academy of Ophthalmology. It is unsettling how eager the American Optometric Association has been to embrace the possibility of providing expert testimony as a puppet of the government without any legitimate scientific inquiry of their own. The seminal scientific research article on HGN states it best:

In an article designed to inform optometrists how to provide expert testimony on the HGNT (HGN), the only evidence of a correlation between BAC and nystagmus given is a reference to the NHTSA’s work. Specifically the article stated “through a series of studies, the National Highway Traffic and Safety Administration (NHTSA) has been able to establish a high correlation between alcohol concentrations in the body and performance on a series of field sobriety tests.” It is interesting, and perhaps revealing, that no other evidence is referenced to support this correlation.15

One only needs to look at the criticism of NHTSA = s foundational research16 -which led to the development of the HGN test- to understand that this is yet another example of agenda government science which misses the mark. It is interesting to note that researchers have determined that percentages generally cited by the courts in support of HGN exist only in NHTSA publications.17 Jurists and prosecutors in the United States have been quick to embrace the HGN test as hardcore science but this component has not been adopted by Great Britain.

Standardized Field Sobriety Tests

Outside of the HGN, DWI cases concentrate on psychomotor skills known as standardized field sobriety tests; but just how good are these tests? This requires some basic understanding of testing fundamentals. The first incorrect presumption with this framework is that these tests measure impairment related to driving. They do not.18 The walk and turn and one leg stand are purported to have “face validity,”19 that is the tests relate to actual driving tasks. Face validity is the lowest form of validity a researcher can achieve and is generally not accepted by academia because “face validity rests on the investigator’s subjective evaluation of the appropriateness of the instrument for measuring the concept rather than whether the instrument measures what the researcher wishes to measure.”20 For a test to be valid, there must be high reliability and validity both measured by a correlation coefficient ranging from 0 to 1.0 (highest end of the scale).21 Reliability relates to the consistency of scores based on re-testing. Validity relates to the ability of a test to predict particular benchmarks. Intelligence tests such as the Wechsler Intelligence Test have a reliability of .90. According to the 1977 SCRI study which developed the 3 part standardized field sobriety tests the validity correlation coefficient22 was .48, the walk and turn was .55.23 In layman = s terms what this means is that using a one leg stand to predict a .10 BAC is only 25% better than chance.24 The HGN interestingly enough had only a correlation coefficient of .67 equating to an approximate 33% better prediction than chance.25 Use of the walk and turn is only 27-28% better than chance.26 The overall error rate (wrong percentage of decisions to arrest) was 47%.27 In 1981, laboratory field sobriety tests (this time just the HGN, walk and turn, and one leg stand) were researched again and the error rate was found to be 32%.28 Validity correlation coefficients were not mentioned in this study. Reliability correlation coefficients were given for this study: HGN .66, walk and turn .72.29 For a test to be reliable the coefficient must be .85 or higher.30 When different officers performed the test on the same subject at the same BAC the coefficients dropped down to .59 for the HGN and .34 for the walk and turn, to whit a 66% error rate was indicated for the walk and turn and the one leg stand error rate equated to a 40%.31 Dr. Burns herself indicated that the > 77 and > 81 error rates were unacceptable.32 In response to a cross-examination question as to whether 32% was acceptable, she replied, “It is getting there.”33 This is the meat and potatoes of what still exists today.

Once one gets over the initial shock of how unacceptable these tests are according to government research the next logical step is to look at the relevant scientific peer review community. Dr. Spurgeon Cole and Ronald Nowaczyk did just that in 1994 in a field sobriety study sponsored by Clemson University. According to this study, field sobriety tests which included the walk and turn and one leg stand test were compared to normal tasks such as reciting basic information and walking in normal manner for 21 sober individuals all with a BAC of .000. Forty-six percent of the officers determined the subjects intoxicated by SFST(s) with only fifteen percent of said subjects determined to be intoxicated by normal tests.34 The promulgation of these tests, the HGN, walk and turn and one leg stand may be good enough for government work but are a far cry from reliable, scientific standards. Because of this, innocent people are being convicted every day on these premises, which are taken at face value and not questioned despite their invalidity. When most states lowered legal limits to .08, the government found itself in a quandary of which they still have not been able to solve; hence, the continuation of the misleading 1981 percentages of accuracy: HGN 77%, walk and turn 68%, one leg stand 65%.35 The Colorado,36 Florida37 and San Diego38 studies attempted to quantify accuracy at .08 but none proved worthy of the mission. Such roadblocks as documented by Steve Rubenzer, Ph.D, included but were not limited to the following critiques:

1. The field studies validated the arrest decisions of the officers in the studies, not the SFSTs.

2. The police officers and the degree of supervision in the field studies were not typical of typical DWI stops.

3. The studies were insufficiently documented for scientific papers as cited in U.S. v. Horn, 185 F. Supp.2d 530, 558 (D. Md. 2002).

4. The authors did not report the accuracy of arrest decisions for stops that were observed vs. those that were not, or for SFSTs performed under adverse climate conditions versus those that were not.39

The new purported levels of accuracy in the recent validation studies regarding the same field tests at lower limits are proof of the tests = inherent low reliability correlation coefficient. How these statistically unreliable and invalid tests are somehow more purportedly valid at lower limits is yet proof positive how radical the DWI religion has become to lawmakers and jurists alike in blind disregard of the science.

Leading Jurisdictions

Despite ignorant, widespread acceptance of the validity of the HGN, walk and turn and one-leg stand tests, there are some jurisdictions which have started down a very unpopular but judiciously righteous path in respect of scientific principles and constitutional liberty. In Homan v. State, the court determined that in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures .40 The court at least recognized that “testing” requires standardization and not haphazard administration if scoring criteria is to be used. What is key in this case is the court = s threshold requirements merely address admissibility at the probable cause level. The mistake in Homan is to give the standardized tests any scientific evidentiary value at all. It however at least recognizes that adherence to protocol is necessary to admissibility as opposed to weight. In U.S. v. Horn, Judge Grimm wrote:

There is no factual basis before me to support the NHTSA claims of accuracy for the WAT and OLS tests or to support the conclusions about the total number of standardized clues that should be looked for or that are missing a stated number means the subject failed the test. There is very little before me that suggests that the WAT and OLS tests are anything more than standardized procedures police officers use to enable them to observe a suspect = s coordination, balance, concentration, speech, ability to follow instructions, mood and general physical condition--all of which are visual cues that laypersons, using ordinary experience, associate with reaching opinions about whether someone has been drinking.41

Some of the more notable premises the Horn case stands for are that 1) The results of properly conducted tests may be considered for probable cause.42 2) The SFST(s) cannot be correlated with a specific BAC43 3) The court where requested by counsel should take judicial notice of the fact that there are many causes of HGN outside of alcohol.44 4) Value added descriptive language regarding the SFST(s) such as “failed the test,” “exhibited” a certain number of “standardized clues” or any other bolstering attempts by the officer is not allowed.45 SFST(s) or any specialized information learned from law enforcement or traffic safety instruction should not be referred to as scientific, technical or specialized.46 Judge Paul Grimm, much like Governor William Phipps of Salem Massachusetts who suspended the special court of Oyer and Terminer,47 which based convictions on specious “specter” evidence, has through his opinion echoed some reason and common sense that is necessary in a court of law in the wake of mass hysteria over DWI prosecutions. Special recognition goes to courts responsible for cases like State v. Doriguzzi,48 where HGN was ruled not admissible because the State had failed to show Frye acceptance and reliability and Young v. City of Brookhaven,49 where the HGN test was ruled as a scientific test but not one generally accepted by the scientific community. These courts provide hope in proving that science is the voice of reason and we have a long way to go in spreading such reason to all parts of the country because science has no jurisdictional bounds.

Special thanks to:

Dr. Ron Henson of Beron Consulting and Lab Works, Peoria, Il.

Richard Essen of Essen, Essen, Susaneck, Canet, & Goodis P.A., Aventura FL 33180 (and paralegal Jason Hedges), Dr. Joe Citron, Atlanta, Ga.

Steve Oberman, Law Office of Steve Oberman, Knoxville, Tn.

Notes

1Unlike most jurists, Judge Coffey has a scientific background- a Bachelor of Science in Agriculture from Western Kentucky University.
2 See Rosemary Ellen Guiley, The Encyclopedia of Witches and Witchcraft, 234-299 (1989).

3 Indicating the chemical concentration of alcohol in the blood as being greater than .10%.

4See V. Tharp, M. Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, DOT-HS-805-864, U.S. Department of Transportation, NHTSA, Washington (1981).

5 Dr. L. F. Dell = Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Ophthalmology 147 (1989).

6 Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995).

7See A.J. McKnight, ET AL., Sobriety Tests for Low Blood Alcohol Concentrations, Accid. Anal. Prev. 2002 May; 34(3): 305-11.

8See J.L. Booker, End-position nystagmus as an indicator of ethanol intoxication, 41 Science and Justice 113, 115 (2001). (79 men and 10 women between the ages of 22 and 67 who were well rested and in good health, alcohol levels determined by blood and urine assays conducted by gas chromatography and breath concentrations determined by CMI Intoxilyzer 5000 instruments with wet-bath reference units operated at 34 E C).

9 See Id. at 115.

10See Id. at 114-15. ( The study consisted of 44 men and 22 women between the ages of 20 and 57 who denied use of alcohol or drugs within the preceding 24 hours).

11 See Id. at 115.

12 See Id. at 115.

13 See Karl Citek, HGN and the role of the Optometrist, in Admissibility of Horizontal Gaze Nystagmus Evidence: Targeting Hardcore Impaired Drivers, 15 (Am. Prosecutors Research Inst. 2003). (The following resolution was adopted by the American Optometric Association House of Delegates, on June 1993:

Whereas drivers under the influence of alcohol pose a significant threat to the public health, safety, and welfare; and

Whereas optometric scientists and the National Highway and Traffic Safety Administration have shown the Horizontal Gaze Nystagmus (HGN) test to be a scientifically valid and reliable tool for trained police officers to use in field sobriety testing; now therefore be it

Resolved that the American Optometric Association acknowledges the scientific validity and reliability of the HGN test as a field sobriety test when administered by properly trained and certified police officers; and be it further

Resolved that the American Optometric Association urges doctors of optometry to become involved as professional consultants in the use of HGN field sobriety testing.)

14 See Predicate Questions: Optometrist....Appendix K (visited June 18, 2004) <>. ( Direct Examination questions for the state’s expert optometrist end with: 88. Are you familiar with the 1993 resolution "Horizontal Gaze Nystagmus as a Field Sobriety Test" passed by the House of Delegates of the American Optometric Association? 89. Is this a copy of the resolution? 90. Please read it to the court).

15 Charles R. Honts, Susan L. Amato-Henderson, Horizontal Gaze Nystagmus Test: The State of the Science in 1995, 71 N.D. L.Rev. 671 at 6 (1995). (citing David V. Tiffany, Optometric Expert Testimony: Foundation for the Horizontal Gaze Nystagmus Test, 57 J. of Amer. Optometric Ass = n 705 (1986)).

16 See Id. at 15.

17 See Joseph R. Meaney, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics J. 383, 385 (1996).

18 Jack Stuster and Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, DOT-HS-808-839 6, (1998).

19 See Id . at 27-28.

20 Chava Frankfort-Nachmias & David Nachmias, Research Methods in the Social Sciences, 150 (6th ed. Worth Pub. 2000).

21 See Trial Transcript at 14-16, later reported as State v. Meador , 674 So.2d 826 (Fla. Dist. Ct. App. 1996) .

22 See Id. at 21, (The formula is actually the square root of 1.48.).

23 See Id. at 20.

24 See Id. at 21.

25 See Id. at 20, 22.

26 See Id. at 22.

27 See Id. at 29.

28 See Id. at 37.

29 See Id. at 42.

30 See R. Rosenthal & R.L. Rosnow, Essentials of behavioral research: methods and data analysis (2 nd ed. McGraw-Hill 1991).

31 See Meador, supra note 21, at 31.

32 See Id. at 141.

33 Id. at 141.

34 See Spurgeon C. Cole & Ronald H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, 79, 99-104, (1994).

35 See Tharp, supra note 4.

36 See Anderson, Ellen and Marcelline Burns, PH.D., A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery, November 1995.

37 See Dioquino, Sgt. Teresa, ET AL., A Florida Validation Study of the Standardized Field Sobriety (SFST) Battery, (date of publication is unknown).

38 See Burns, supra note 18.

39 See Steven Rubenzer, DWI- Part 1 The Psychometrics and Science of Standardized Field Sobriety Tests, The Champion, May 2003, at 24-34.

40 See Homan v. State, 89 Ohio St.3d 421 (2000). Most unfortunately, and without any respect for scientific realities this case was later abrogated by legislation.

41 U.S. v. Horn , 185 F. Supp. 2d 530, 557 (D. Md. 2002).

42 See Id. at 532-33.

43 See Id. at 533.

44 See Id. at 533.

45 See Id. at 533.

46 See Id. at 533-34.

47 See Guiley, supra note 2 at 299.

48 334 N.J. Super. 530 (App. Div. 2000)

49 693 So.2d 1355 (Miss. 1997).

As published in the National Association of Criminal Defense Lawyers magazine, "The Champion". November, 2004