DUI Or ADD/ADHD? A Case Of Wrongful Arrest & Prosecution.

In Washington State, prosecuting attorneys do not need a breath test to move forward with DUI prosecution if the driver performed a roadside test. These roadside "Sobriety Tests" are used nationwide to justify arrests, but they do not take into account ADD/ADHD as recognized by the American Disability Act and may likely be the basis of a wrongful DUI arrest or conviction.

You may have seen or heard about Washington Roadside DUI “Sobriety Tests” and that officers use them not just here, but nationwide to justify their arrests.  In Washington the law allows use of the tests as “evidence”  to help prosecute drivers for DUI.  In Washington state, the prosecuting attorneys does not need a breath test to move forward with DUI prosecution if the driver performed these roadside tasks.  However, these tests do not account for the disability of ADD/ADHD that is recognized by the American Disability Act and these tests will likely be the basis of a wrongful DUI conviction.

The roadside tests are called Standardized Field Sobriety Tests, they are essentially divided attention (psychophysical) “field sobriety tests” and observations of the defendant based upon scientific studies commissioned by the National Highway  Traffic Safety Administration (NHTSA).  While the researchers and authors did take note of some, but not all, physical disabilities impacting the validity of each test, and have accommodated several of these disabilities with either special instruction,or elimination of certain tests because no accommodation could be made the disability of ADD/ADHD, it has never been addressed by NHTSA or the National Sobriety Testing Resource Center.

A common condition which is often misunderstood due to lack of training is attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) which can be confused with the common signs and symptoms of intoxication. References to a driver being confused, unable to follow direction and showing abnormal behavior can be a sign of ADD/ADHD. Adults with ADD/ADHD struggle daily with self regulation: regulating their attention, regulating their impulses in talking and action, and regulating their emotions.  However, without special training, time and attention, will the police officer who pulls over a driver with adult ADD/ADHD give him the benefit of the doubt?; Will the police officer be able to spot ADD/ADHD and differentiate it from other signs and symptoms of alcohol consumption?; Unlikely.  Consequently, without any specialized training, or recognition of ADD/ADHD, within the SFST training curriculum, the symptoms of ADD/ADHD will be misconstrued; not only misconstrued by the officer, but they will be reported as evidence of intoxication/impairment to the jury by the officer.

Adults with ADD/ADHD have problems in six major areas of executive functioning: Procrastination; difficulty getting started on projects; Excessive disorganization and messiness; Inability to prioritize tasks; Underestimating the time needed to finish a task; Inability to screen out distractions; “Zoning out” when others are talking; Randomly skipping from topic to topic in conversation; Reading words over and over to grasp the meaning; Difficulty sustaining effort over long periods of time; Starting multiple tasks, but never completing any of them; Missing deadlines; Trouble going to sleep at night and staying alert during the day; Easily bored; Low tolerance for frustration and stress; Unstable, unpredictable moods; Quick temper; Constant worrying;  Trouble remembering things, even for a short time; Does not recall conversations, things others said; Forgetting appointments; Constantly losing or misplacing things; Inability to delay gratification; Speaking without thinking; Acting impulsively (e.g., impulsive spending, sudden change of plans) without regard to the consequences; and Jumping to conclusions.

As a result, ADD/ADHD can be a big stumbling block and in terms of roadside tests and potential evidence, lethal to your defense. The symptoms of disorganization and inattention, in particular, pose problems for those being tested using the standard NHTSA scoring for field testing where the idea and criteria for failure is an inability to divide attention under stressful situations.

As a result of these problems, the results of the tests which challenge a person to divide their attention under stressful situations will be “failed” and used to prove sobriety; when in fact the driver who suffers from ADD all of the symptoms the tests are designed to look expose  while being administered in a stressful and distracting environment.

A colleague of mine, Scott Robbins, recently shared some research some of his research with and what follows is a very basic outline of the issue and if you suffer from ADD/ADHD and have been arrested for DUI after these tests, the evidence supporting the arrest is likely inadmissible but a successful challenge requires DUI and SFST expertise.

In its most basic form, drivers who undergo roadside tests are being discriminated against and such discrimination can lead to wrongful DUI convictions.  The Americans with Disabilities Act of 1990 provides clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.  42 U.S.C. § 12101 (b). On September 25, 2008, President Bush signed the Americans with Disabilities Act (ADA) Amendments of 2008.  The amendments to the ADA expand the definition of disability to include an impairment that limits one of major life activities.  Specifically, among the list of major life activities are “concentrating, thinking, [and] communicating.” 42 U.S.C. § 12102(2)(A). As a result the Tests should NEVER be provided to a jury when the driver suffers from this condition because the testing criteria for divided attention field sobriety tests cannot accommodate this disability.

While ADD/ADHD is a very specific and unique example of how these tests work against a driver, there are numerous other flaws in the design and interpretation of these tests and this is why you should never do these tests.  The tests are voluntary in the State of Washington and there is no penalty for not doing them.  However, many citizens do not know this and find themselves placed in precarious and uncomfortable positions on the side of the road and then quickly under arrest for DUI.

If you are in such a situation you need an experienced DUI lawyer who has training and experience in the area of sobriety testing in order to expose the flaws and limitations.  Jonathan Rands, is trained and qualified to administer these tests and will ensure that they are challenged and exposed to a Judge and Jury as being unreliable.  Since the tests are standardized, they MUST be administered and interpreted in a very specific and precise manner.   Regardless of where you were arrested: Oak Harbor-Island County, Mount Vernon-Skagit County, or Bellingham-Whatcom County, Jonathan will challenge these tests in your defense and in so doing provide an expert witness who is an instructor of these tests. On Call now for a free consultation.