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Non-Standardized Tests

Interviewer: What are some of Non Standardized Tests?

Ron Mondello: Those other tests are non-standardized tests, and they’re not as accurate. In fact, many defense attorneys would argue that they’re invalid, they’re inaccurate, and they’re designed to fail. There aren’t specific procedures that are followed.

The Finger to Nose Test is a Non Standardized Test

A perfect example is the finger-to-nose test. That is not a standardized test, and although that one dates all the way back to the ‘50’s and it is still used today, but it’s not standardized. You close your eyes and very quickly try to touch the tip of your nose. You may find that you do miss nine out of ten times if a police officer were to ask you to try to do it ten times. You’re going to miss.

You’re familiar with some of the others, like reciting the alphabet or counting backwards. There’s just a myriad of them. I’m amazed when I hear that my clients were asked to recite the alphabet backwards. I can’t do that right now as you and I speak.

The Coins to the Ground Test is Rarely Used

Interviewer: I’ve also heard of the coins to the ground test. I’ve heard about that one.

Ron Mondello: That is not something that I have ever come across in the more than two decades of practicing defense of those folks accused of DWI or DUI in New Jersey. I’m not familiar with that. I’ve not heard of it, and I’ve certainly not seen it here, but I suspect it’s dropping a coin down on the ground and picking it up.

Interviewer: Yeah, or several coins sometimes too. That one seems, to some extent, kind of cruel, too.

Ron Mondello: Again, that may be a problem for somebody whose eyesight is not fantastic, somebody who’s overweight, somebody that has leg and back problems, or a woman in large high heels. The non-standardized tests are far from perfect.

Interviewer: I’ve never been put into this situation, but I know that I’d pretty much fail every test.

Ron Mondello: There are people, over 65, who really shouldn’t be performing these tests. Someone who is obese should not be performing these tests.

Miscommunication & Other Factors

Interviewer: When a police officer reads you or gives you the instructions and you respond, how does that affect it. If someone says, “Hey, I didn’t get that. Can you repeat that?” or “I’m not sure,” or if someone responds, “I think I get it,” how is that going to reflect on them? Would they repeat it to you or would they give up after a while, and you’re like, “I don’t know what you’re talking about. I’m still confused about this, using your heel when going forward. How exactly am I supposed to do this?”

How does that reflect to the police officer? What are they going to do at that point?

Ron Mondello: Well, that question certainly would go to the very varied personalities that police officers have. I’m certainly sure that you’ve come across very, very patient police officers and very impatient police officers. How it is actually recorded is that it’s not a clue. If someone says that they don’t understand or, “Could you please demonstrate it?” that wouldn’t be recorded as a negative clue. We’ve gone over the clues.

However, it certainly would go in the police report, and you could absolutely, positively be sure that it would be highlighted if it happened three times. If I had to ask the police officer to repeat the walk-and-turn instructions three times and to demonstrate it three times, that would be highlighted somewhere in the report. It would jump out at you, and that certainly would come out during your trial.

Interviewer: Are there any common examples of situations that commonly get miscommunicated or misinterpreted, or are there any common tests or common things that a police officer will say that you’ve noticed over the years that people always misinterpret?

Ron Mondello: I have not seen a constant or a common theme with defendants misinterpreting the field sobriety tests. If the police officer gives the proper instructions and demonstrates them, there really shouldn’t be a misinterpretation.

But if you were to ask me to put my finger on something, I would say that with respect to the walk-and-turn, you will find most people will pivot or sort of turn around instead of performing the test properly as we explained. Your feet are still supposed to be heel-to-toe, and you move in that direction. You don’t pivot. You don’t just turn.

That one, because it is somewhat complex, I would say might be much more difficult than, let’s say, the one-leg stand test.

By Ronald P. Mondello