Criminal Law Blog
October 19, 2005
Austin DWI Attorney: Why Convert DWI Videotapes To DVDs?
I convert the videotapes to DVDs because that way, I can review the video literally frame by frame to watch for mistakes the police make in administering the Standardized Field Sobriety Tests ("SFSTs").
For example, by watching frame by frame, I can spot when an officer is holding his pen too high to correctly conduct one of the SFSTs, the Horizontal Gaze Nystagmus (sometimes called the the “pen") test. Police officers are taught that the pen test is the most reliable of the three SFSTs.
“Nystagmus” means jerking of eyeball muscles. Once a human being has drunk a lot of alcohol quickly, his (or her) eyeballs will jerk around involuntarily. That’s what the officer is looking for when he does the pen test.
The officer is looking to see whether the suspect’s eyes lack smooth pursuit, whether the eyeballs have distinct and sustained nystagmus when the pen is held way out to one side, and he’s checking to see whether the nystagmus in the suspect’s eyes begins before the pen reaches a 45 degree angle.
But if the officer holds the pen at the correct level at the beginning, and then sweeps an arc up above the correct level and then down again, the officer isn’t testing for horizontal gaze nystagmus at all.
Instead, the officer is actually causing rotational nystagmus. And officers frequently mistake that for horizontal gaze nystagmus.
Fair is fair. The police say that their SFSTs have scientific validity if correctly administered. So there is nothing wrong with pointing out why the officer drew the wrong conclusion from the eyeball jerking he caused.
Yes, you can see if the officer is moving his pen wrong for this test. If you view the video frame by frame. And that’s just one reason why I convert videotape to DVDs.
Another is that I can make a still photo from that digital image to prove that the officer held his pen too high, swung it in an arc, and caused the nystagmus he believed came from alcohol.
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