The DC Court of Appeal in TOWNSEND v. DC on May 31, 2018, remanded a DUI (“Driving Under Influence”) conviction based on erroneous admission of scientific evidence.

Townsend was found behind the wheels of a running car partially on a curve, and on the wrong side of a street by the police officers.

As she appeared under the influence and incoherent, the officers had administered several field sobriety tests to determine or to establish drug or alcohol use.

The standardized field sobriety tests performed were:

Walk and turn test:

To place the right foot on a line and the left foot in front of it, connecting heel to toe while putting both hands to side and taking nine heel to toe steps while counting out loud and keeping arms to side. After completing the nine steps, the defendant was to turn around and take nine heel to toe steps backwards also counting out loud.

The defendant exhibited eight clues on the walk and turn tests, which meant she approximately had a blood alcohol content of at least a 0.08.

The Oneleg-Stand test:

The defendant was instructed to stand with her feet together, her arms to her side, and to raise one of her feet . . . approximately six inches off the ground, with her toes pointed outward. Appellant was to count out loud to 30.

She also had difficulty performing this test.

VGN (“vertical gaze and nystagmus”) test:

The defendant was instructed to stand with her feet together with her hands to her side while the Officer told her to follow [the shining flashlight on the tip of the] pen [in his hand] . . . with her eyes only as he raised it vertically.

The defendant according to the evidence presented at trial had certain degree of difficulties performing well on all the field sobriety tests however the test in question for the Court of Appeals was the VGN test.

The sudden or involuntary jerking of the eyes during the VGN test was argued by the government at trial to be indicative of drug use. The defense had argued that as VGN results are scientific in nature, there must be testimony by an expert for admission of such evidence or at the very minimum the testifying officer has to be qualified as an expert.

The trial court had ruled that only the HGN (“horizontal gaze nystagmus”) required an expert, the Court of Appeals ruled in short that both VGN and HGN required testimony by an expert or witness qualified as an expert.

Specifically, the Court ruled that the administration of the HGN or VGN tests and the interpretation of the results are subjects “beyond the ken of a lay juror”, and thus an expert testimony is required. Both tests required scientific procedures and techniques and interpretation thereof by a qualified or expert witness.

The Court of Appeals also was not swayed by the Officers testimony that there were also procedural errors in performing the VGN test. That the defendant was wearing her glasses during the test and strobe light was too close to the defendant’s eyes during the testing (no glasses should be worn during the test and the distance from the strobe light must be as mandated).

The case was ultimately remanded to the trial court to determine whether excluding the VGN test results, there remained significant independent evidence to justify the conviction.

As the defendant had sufficiently raised legitimate health issues as well as being prescribed drugs with side effects all potentially contributing to mal-performance in the sobriety test, it is very likely that the remand would be result in the conviction being vacated.

Refer to our Washington DC DUI Lawyer page for more information on the subject.