Dr. Greg Kane at Med-Mal Experts has published an excellent 3 part series on the flawed math that NHTSA uses to calculate “accuracy rates” for the Field Sobriety Tests. These papers were originally published in the Colorado Trial Lawyer’s Association magazine Trial Talk, and are now reproduced on Kane’s website “The predictive value of the NHTSA’s Standardized Field Sobriety Tests”.

Ultimately, Kane answers the question that all DWI lawyers need to be asking: What does it really mean when the officer testifies that “failure” of the field sobriety tests means there is a 93% chance that the defendant was intoxicated? How did NHTSA come up with that number…and is it meaningful?

From Kane’s site:

Around the country, DUI defense attorneys form organizations, give seminars and share trial strategies to overcome FST evidence. Prosecutors do the same, from the other direction. The two sides bicker about mechanics. Did the officer follow procedure exactly? Did the officer consider medical conditions that cause incoordination?

What no one does, as far as I can tell, is doubt the NHTSA "validation" contractors’ analysis of what a mechanically meticulous coordination test actually implies about alcohol impairment. The driver failed the FST. No one asks, "Exactly what does that mean?"

I have to admit that he’s right. DWI defense lawyers and prosecutors tend to argue back in forth about whether the officer administered the tests properly. And any good DWI lawyer better know the NHTSA manual back and forth, so that when he watches the videotape of his client on the scene, he can evaluate the officer’s performance as well as his client’s.

But is it possible that we in the DWI defense bar have been missing the forest for the trees? I’ve digested the first paper thoroughly, and frankly, am truly excited about Kane’s work in these areas. As soon as I make it through the next two, I’ll post more on this subject.