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Articles Posted in Drug DUI Defenses
August 15, 2018Marijuana DUI: The Modified Romberg Balance Test
By Brian Manchester
If you asked Dr. Moritz Heinrich Romberg him what his legacy would be while he was on his death bed in 1873, we doubt he would say field sobriety testing for drug and marijuana DUIs. Nevertheless, (former) neurologist Dr. Romberg is now the namesake standardized field sobriety test used to detect the presence of drugs: the “Modified Romberg Balance Test.”
You’re Nervous and Sober? To the Police, You’re High on Drugs
The Modified Romberg Balance Test begins with the officer instructing the subject to tilt his or her head back slightly, close his or her eyes, and estimate 30 seconds. When he or she believes 30 seconds has gone by, the subject is supposed to tilt his or her head forward, open his or her eyes, and say “stop.”
The goal of the Modified Romberg Balance Test is to check the subject’s internal clock and balance while looking for eye or body tremors. If you say stop anywhere between 25-35 seconds you are off to a good start, as anywhere between 25 and 35 seconds is considered normal for purposes of estimating 30 seconds.
The Modified Romberg Balance Test is a divided attention test, which means you are concentrating on more than one thing at a time, all while the officer is just waiting for you to make a mistake. For example, something as small as you estimating 30 seconds then opening your eyes and saying “30” or “done,” instead of “stop,” will be noted as an indicator of impairment by the officer.
This Test Can Be Attacked By An Attorney
However, the Modified Romberg Balance Test can be attacked in various ways by an experienced attorney. For example, it is being given by an officer looking for anything and everything to note as an indicator of impairment. A doctor administering the test does not do so with the hope that the subject will make mistakes.
Second, you are nervous, you’ve never taken the test, nor have you ever practiced the test. In addition, a major issue defense attorneys have with tremors is that officers believe they can tell the difference from nerves and drug-induced tremors. However, it is not common for a person high on marijuana to visibly shake. Also, officers claim that tremors do come and go like nerves that make you shake do. An experienced defense attorney like Brian Manchester can show that if you were nervous, your nerves aren’t going to go away by an officer making you take these field sobriety tests.
Mistakes On Test Do Not Indicate Impairment
A crucial point on the Modified Romberg Balance Test: unlike other sobriety tests, there are no clues or indicators that have been validated. This means that the officers, prosecutors, courts, juries, defense attorneys, etc., do not have the research or data to prove that specific clues under the test are statistically reliable indicators of impairment. That research is available only for Horizontal Gaze, Nystagmus, Walk and Turn and One Leg Stand. In other words, if you make mistakes on the Romberg, this does not tell the officer the statistical likelihood of your impairment. For example, if you sway 1 – 2 inches, there is not a 50% likelihood you are impaired.
It is important to remember this test is voluntary, unlike some of the other sobriety tests for alcohol under PA’s implied consent laws. You should not volunteer to perform this test, as officers will be looking for anything and everything they can to say that you were impaired. If you did, don’t worry. Brian Manchester knows how to call the accuracy of this field sobriety test into question, as he has extensive training in DUI defense and is even a member of the National College for DUI Defense, the American Chemical Society, and the Society of Forensic Toxicologists. Brian Manchester also regularly attends seminars that specifically focus on DUI defenses, and he was also the Educational Chairman for the Pennsylvania Association of Drunk Driving Defense Attorneys. For a free consultation we can be contacted at 1-800-243-4878.
March 5, 2018Some Defenses For Drug DUI Cases
By Brian Manchester
I was going over the latest PA Bulletin on the minimum detection levels for a case and I wanted to share some information about it because I often get calls on this topic. In summary, if a Schedule I, II, or III controlled substance is not on this list (attached) it isn’t admissible pursuant to 1547(c)(iv). Remember benzodiazepines are Schedule IV so they are not covered by this Bulletin.
There are a lot of controlled substances that my client allegedly consume that are not covered. Some of the more popular non-covered drugs are synthetic cannabinoids (marijuana) and synthetic cathinones (bath salts). The synthetic cannabinoids are too numerous to mention and new forms are coming out as quick as chemists can think of them. But too bad for the government. They are not listed so they don’t get in. One of the most popular synthetic cathinones I come across is Alpha-PVP. Again not listed so not admissible. One of the most popular drugs I see is buprenorphine (Suboxone) which is a Schedule III drug and its metabolite norbuprenorphine. As you can see from the attached bulletin no minimum level set by the Department of Health.
Another thing to look for are metabolites. As you can see Hydrocodone and its metabolite hydromorphone are listed. Oxycodone is listed but its metabolite oxymorphone isn’t. Why? Who knows but that is the government’s problem. The prosecutors I deal with always try to make metabolites look like another drug is in a person’s system and with that all of the negative implications that brings.