Interviewer: I’ve actually seen the finger-to-the-nose test while driving by. So do certain factors come into play that may make it difficult for that person to pass that test? Have you ever seen that as a valid reason for them to fail a test?
Court Koehler: Yeah. When the officers do their reports and they explain how they did the test, they have a lot of protocol they have to go through in order to make this valid. That’s why it’s also good when you have a video recording of the test, because it can serve as sort of a check and balance for the officer. You can see if they really did it the way that they say they did it. You can also see how well the subject of the test is actually doing. You can witness it with your own eyes.
But when they do, for instance, these tests where you have your vision, and you’re looking at a line or you’re looking at a light on a pen, it can be really distracting if you have headlights whizzing by or if you have street lights or the police lights. The headlights are really bright. That headlights that they have right there by the driver side mirror can be really distracting, too. They’re supposed to turn all that stuff off so that it’s not causing a problem. They can control their lights on their cruiser, and they can maybe position you in a way that you’re not facing distracting lights and things like that.
In the real world, cars drive by and there are street lights and there are sounds and things like that in a city that an officer isn’t going to be able to control. That’s one of the things that can mess up a test for sure. That’s what lawyers are going to look at. That’s what a good defense lawyer is going to look at when they’re reviewing these tests. Was there something like that that could have messed it up? Because there certainly can be those things that can alter the test results.