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Is being overweight a defense for failing a field sobriety test?

In 2009, in what sounds like something out of a fictional novel, a New Jersey man used the defense that he was too fat to pass the field sobriety tests. At the time, it was considered an unusual defense to a DUI, but many organizations are now considering how people with different health conditions do on the test.

What is the field sobriety test?

The field sobriety test consists of three separate checks:

  • Horizontal gaze nystagmus - the person stands on the side of the road while the officer slowly moves an object in front of the suspect's eyes. The officer is watching for an involuntary jerking of the eye, which is often caused by depressants affecting the central nervous system.
  • One-leg stand - According to the National Highway Traffic Safety Administration, this test has two stages: instruction and performance. The officer is required to instruct you on the test and should give you a demonstration. Then you raise one leg so your foot is parallel to the ground and about six inches off the ground. You put your hands to the side and stand for 30 seconds while looking at your foot until instructed to stop. The officer is looking for swaying or using your arms for balance while you are performing this test.
  • Walk-and-turn - In this test, you take nine steps in a straight line, using a heel-to-toe fashion, then you must turn on one foot and return to your starting spot. The officer is watching for balance cues, if you can listen while the officer gives directions, and whether you count the steps, among other things.

The National Law Enforcement Liaison Program published a booklet for prosecutors and law enforcement in which they write, "Original research for the one-leg stand suggested that subjects older than 65 years of age, those with back, leg, or inner ear problems, or those who are more than 50 pounds overweight had difficulty performing this test."

Officers are encouraged to consider factors such as weight, disabilities, location and injuries when administering a field sobriety test. However, it might be rare for an officer to ask if you are more than 50 pounds overweight when conducting this test. If you do not speak up about your physical condition at the time, you may unwittingly fail the test.

Did other factors affect your field sobriety test?

If you believe that you failed a field sobriety test unfairly, you should discuss this with an experienced DUI attorney. The test itself is not scientific but simply a way to observe whether you might be intoxicated.

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