In a recent article in The Champion Magazine, DWI practitioner Mimi Coffey calls DWI the "Modern Day Witch Hunts" citing bad science and an indifferent or intimidated judiciary (The Champion, November 2004, Page 51).
Ms. Coffey goes on to effectively describe all the problems with Standardized Field Sobriety Testing which even in a best case scenario is only 80% accurate. One of the lynch (no pun intended) pins of FST is the Horizontal Gaze Nystagmus test or Eye Test. She points out that there are over forty different types of nystagmus (involuntary jerking of the eye) that are not distinguished by traditional HGN testing and over thirty different causes of nystagmus OTHER than alcohol or drug intoxication including strep throat and the flu!
She goes on to write, "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 Standardized 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. 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, 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. In the same study, it was determined from 66 healthy, well-rested subjects 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. 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."
While drunk drivers unquestionably cause many serious injuries and deaths, many people are stopped arrested, prosecuted and convicted of DWI with little or no evidence of impairment, not even causing property damage let alone injury or death.
Unfortunately, excessive media attention and advocacy groups have caused a rush to judgment in acceptance of such "science" from courts anxious to avoid a "soft on crime" reputation. Prosecutors find the DWI offender an easy target when it comes to posting impressive filing (the amount of cases filed) numbers as well as conviction numbers as the uninformed and unrepresented accused simply pleads guilty without the benefit of counsel. DWI conviction numbers are routinely touted in the effort of Police Departments and Prosecutors to appear "tough on crime." "Kill them all and let God sort them out" seems to be the mantra of modern day DWI enforcement.
