A New Hampshire man was arrested in April on a DWI (driving while intoxicated) charge. But Jaimil Choudhry, 20, of North Hampton, eventually beat the rap with an unusual defense -- he claimed he was too fat to pass the field sobriety tests.

Attorney Andrew Cotrupi argued that his client, at 5 feet 10 inches tall and weighing in at 230 pounds, met the clinical definition of obesity and shouldn't have been given the tests in the first place.

The standard field sobriety check is actually made up of three separate tests. According to the National Highway Traffic Safety Administration, they include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT) and the One-Leg Stand (OLS). In the HGN, a person is expected to stand on the side of the road while an officer observes "the suspects' eyes as he follows a slowly moving object such as a pen." In the WAT test, a suspect is expected to walk, heel to toe, for nine steps along a straight line. And the OLS test involves standing on one foot for 30 seconds and counting aloud.

New Hampshire State Trooper Stan Dombrowski, who has administered dozens of roadside field sobriety tests, explains that officers first need probable cause to pull someone over. As the tests are administered, officers are trained to look for clues that would indicate a driver is impaired. In the one-leg stand, for instance, those clues would include putting your foot down, swaying or raising your arms for balance.

"You make the best determination you have based on the facts you have," Dombrowski said.

In the Walk and Turn test, the "examiner looks for eight indicators of impairment: If the suspect cannot keep balance while listening to instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe etc," he said.

NHTSA research indicates that "79 percent of individuals who exhibit two or more indicators in the performance of the test will have a blood alcohol count of 0.08 or greater."

But many defense attorneys, including Lawrence Taylor who literally wrote the book on drunken driving defenses, now routinely question the relevance of field sobriety tests because, according to Taylor, a driver's ability to perform those exercises is as much a function of age, physical condition, experience and weight as it is about sobriety.

MADD and Other Watchdog Groups Call 'Fat' Defense 'Fiction'

"I don't think they should ever be conducted for a whole host of reasons," said Taylor, who cited the example of a 45-year-old woman with arthritis who is wearing high heels as someone who is not likely to do well on a field sobriety test whether or not she is in fact impaired. Taylor said that the same goes for an obese man who likely not perform well on the nine-step Walk and Turn test.

"It doesn't take an expert to conclude that obesity is going to affect your performance in the field," he said.

Taylor also argued that police officers are predisposed to fail suspects in the field because they "smell alcohol on their breaths" and not necessarily because they don't pass all of the field tests.

Trooper Dombrowski, however, defended the tests as a useful tool in his line of work -- stopping people from driving drunk. And, Dombrowski added, while he might not administer the Walk and Turn test to someone who was morbidly obese, he would certainly ask them to perform the horizontal gaze.

"You're just standing there, the eyes give off clues and no one even has to move," said Dombrowski, who added during a traffic stop officers are also analyzing how a suspect responds to directions and how they speak.

Not surprisingly, Chuck Hurley, chief executive of Mothers Against Drunk Driving (MADD), agreed that field sobriety tests have a useful place in cracking down on drunken drivers.

"If the public continues to believe all the fiction of defense lawyers on this, we will have more drunk drivers on the road," Hurley said. "They are paid to weave this reasonable doubt stuff and oftentimes it's just fiction."

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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