January 06, 2010
/24-7PressRelease/ --
Obesity or "Fat Defense" Overturns DWI Conviction
Article provided by Law Offices of Troy G. Broussard, J.D.
Visit us at
www.dwidr.com
A judge for the Portsmouth District Court in New Hampshire recently overturned a driving while intoxicated (DWI) conviction based on the defense that the man was obese and should not have been given certain field sobriety tests. Due to his height of 5 feet 10 inches and weight of 230 pounds, Jaimil Choudhry fits within the obese category because his body mass index (BMI) value, which measures body fat, is over 30. Officers should consider physical limitations caused by weight issues when conducting certain field sobriety tests during a possible drunk driving stop.
Types of Standard Field Sobriety Tests (SFSTs)
In the National Highway Traffic Safety Administration (NHTSA) student manual DWI Detection and Standardized Field Sobriety Testing, there are a set of three "official" tests typically given during a stop:
-Walk and Turn (WAT) - Officer observes suspect for imbalance as he or she walks in a straight line, heel to toe, for nine steps.
-Horizontal Gaze Nystagmus (HGN) - Officer observes suspect's eyes for jerking movements as he or she follows a slowly moving object.
-One-Leg Stand (OLS) - Officer observes suspect for imbalance as he or she stands on one leg for approximately 30 seconds.
For each of the SFSTs, the manual describes what signs of intoxication to look for, how to score the test and how to use the score to estimate a suspect's blood alcohol level. The manual also mentions specific environmental conditions, such as bright lights and slippery roads, and traits, such as age and weight, which an officer should consider before giving a field sobriety test.
Alternatively, but less scientific, field sobriety tests are listed in the NHTSA Highway Safety Desk Book. Officers should use these tests if the driver is "disabled," meaning he or she is unable to perform the standard field sobriety tests. These include counting, saying the alphabet and testing finger dexterity.
Inaccurate Results
It is common knowledge in the legal community that SFSTs can be unreliable and inaccurate. Attorneys routinely challenge the results due to inconsistent administration, failure to consider test conditions and low accuracy percentages reported by NHTSA.
According to the NHTSA, SFSTs are only valid if officers administer, assess and interpret them using their published guidelines. Based on test results, from the development stages of the SFSTs, the manual states that people over 65 years old, with back, leg, or inner ear problems and 50 pounds or more overweight had observed difficulties with the Walk and Turn and One-Leg Stand tests. The manual also reports that the ability to accurately identify the level of intoxication varies by test. The WAT and OLS tests are, respectively, only 68 and 65 percent accurate, whereas the HGN test is slightly more reliable at 77 percent. In light of the Choudhry case, the arresting officer should have considered many factors before giving the SFSTs, including alternatives tests, weak accuracy and, most visible of all, his obesity.
"Fat Defense" Breakdown
There are many defenses to a DWI or driving under the influence (DUI) charge. These include illegal stops, fatigue and the improper administration or invalidity of breathalyzer, urine, blood and SFSTs. The "fat defense" is sometimes used by defendants in personal injury actions, but as a factor in attempting to decrease plaintiff damages by showing injuries were worsened because of pre-existing obesity. Using obesity as a defense to beat a DWI conviction is less common. In the Choudhry case, the attorney claimed his client's weight should be a factor in the judge's decision because he was forced to balance himself during two of the SFSTs.
Fair Treatment at Any Weight
Properly administered SFSTs during suspected drunk driving stops can be indicators that a driver is impaired. The decision by the client, attorney and New Hampshire court to present and affirm the "fat defense" in this DWI case may cause public controversy. In one sense, it seems unjust to exploit one's obesity to get out of serious charges like DWI or DUI. However, legal actions and decisions like the Choudhry case ensure that overweight or obese people are treated fairly in similar situations and that officers will identify the true signs of intoxication through appropriate field sobriety testing in the future.
If you feel you may have been treated unfairly at a DWI stop due to your inability to perform the standard field sobriety tests, or have questions about a recent DWI stop, please consult with an experienced criminal defense attorney in your area. An attorney will be able to explain the DWI/DUI laws in your state and your legal rights and options.
Article provided by Law Offices of Troy G. Broussard, J.D.
Visit us at
www.dwidr.com---
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