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Romberg Test DUI Results Used by Police – Never Been Proven Reliable on Drug Impairment

Bubba Head DUI Lawyer

By: William C. Head, Criminal Defense Attorney Atlanta GA and ABA Board-Certified DUI Attorney

Romberg Test, Bubba Head

What Is the Romberg Test? 

Named after a 19th century neurologist, the REAL Romberg test has nothing to do with DUI or impaired driving. Instead, the evaluation is used (in the medical field, not in POLICE work) to evaluate medical patients to see if they have “normal” balance while simply standing in a certain manner.

Medical doctors call this ability to use our sensory systems (eyes, balance, our inner ear cochlea or “gyroscope”) to know where our body in, in space, is called proprioception. The human body is an amazing machine, when all things are operating correctly, without disease or trauma.

Romberg Test DUI

The Romberg test is a two-phase standing test, with one variable being changed, in the evaluation that requires about two minutes or less to perform. This two-step, physical balancing test was named after German neurologist Moritz Heinrich Romberg, who discovered common symptoms of “sensory ataxia” being reported by patients.

He developed and simplified two similar balancing tests that helped physicians to identify likely serious illness and disease, or eliminate those problems by showing a lack of imbalance, when the person had his or her eyes closed.

The History of the Romberg Test

Dr. Romberg Test

After finishing medical training in 1817, Romberg studied under Austrian doctor, Johann Peter Frank, until 1820. Dr. Frank had developed a reputation for studying the spine and central nervous system, and the relationship of proper hygiene, in not contracting disease.

When Romberg returned to Berlin from Austria in 1820, he became a doctor who took on charity patients, and he did this charity work for 25 years.

Seeing the poorest citizens of Berlin often brought him into contact with conditions affecting the spinal cord or central nervous system, and a good number of cases were related to disease and poor hygiene.

A Rhomberg Test Has ZERO Connection to DUI Enforcement or Police

Before going any further, you may be asking, “What does a 19th century German neurologist and DUI have to do with each other?” That is a GREAT question, since neither the concept of police sobriety tests, “drunk driving” or “drugged driving” was never considered in world history, before the automobile was invented in the late 1800s.

The answer is that NOTHING about the Romberg balance test is scientifically proven to relate to driving under the influence of drugs or alcohol.

When Dr. Romberg was alive, no one in the WORLD knew what “driving under the influence” or DUI-DWI meant. Not a single person he ever tested was drunk or on drugs. They usually had spinal cord demyelination from syphilis or some other spinal cord disease or prior trauma.

Plus, when a patient reveals the inability (while standing, eyes open) to maintain balance while standing with feet together, and arms to his or her side, this vestibular anomaly almost always signals serious medical or physiological issues.

Police and Their Complex Fraud About the Modified Romberg DUI Test

The truth is that police organizations in America have created and spawned a great lie, in a concerted effort to mislead both police officers and the criminal court system about there being any connection between this important, preliminary medical test and the crime of driving while impaired.

Their plan was to CREATE a training course for law enforcement officers, to give police bogus “proof” that they could detect a drugged driver through some ambiguous “symptoms” listed in the training materials.

In reality, the symptoms are created by having a detained person attempt to perform some unnatural and potentially dangerous road side exercises, under police directions. and have misappropriated a great falsehood, and impugned the good name of an important medical scientist that was born in 1795.

America’s Fraud Picked Up in Other Countries, Without Scientific Proof

The fraud has spread. Without consulting ANY scientists or medical doctors in their own countries, on Romberg testing, police from other countries have brainlessly adopted the false claims about the modified Rhomberg test endorsed by the National Highway Traffic Safety Administration and the IACP (International Association of Chiefs of Police. , spawned by the law enforcement community in America, and started arresting people in other nations for DUI-drugs, based upon the bogus Romberg test described in the DRE manuals.

How a Top DUI Attorney Keeps Out Bogus Evidence

The starting point of any discussion about the so-called “Romberg test DUI” that police officers learn about in their police training is to first ask if any of law enforcement’s modified Romberg tests should be allowed into any courtroom in America as admissible evidence of “impairment” by either alcohol or drugs. The classes give the Romberg lesson a fancy, official-sounding name: “modified Romberg test of standing balance.”

In America, multiple different legal tests for admissibility are in use, since States cannot agree on one, simple clear standard of evidence admissibility. Without going into the intricacies of each “standard,” the names of the three standards are:

  1. The Frye test of admissibility – (the former federal rule of evidence, which some states like California, Washington, Illinois, New York, and Pennsylvania have kept) Expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community.
  2. The Daubert– Kumho Tire – General Electric v. Joiner admissibility test (used in the Federal Rules of Evidence since 1994), which is now called “the Daubert ” This prevailing national rule is explained better below.
  3. State-specific standards that use a blend of different criteria from one of these first two standards. By example, the Georgia evidence standard for criminal cases is “whether the procedure or technique has reached a scientific stage of verifiable certainty.” Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982). Yet, the Georgia Legislature (under pressure from civildefense lawyers and medical doctors’ lobbyists) passed an evidence law for civil litigation that adopts the more liberal Daubert trilogy, for civil See OCGA § 24–9–67.1, where civil cases can use the more modern standard, but relegates people facing crimes to using the Harper standard from 1982, which was a variation from a Frye standard.

In American jurisprudence, the general concept is that evidence being considered by the “trier of fact” (the jury) first must be allowed to be heard, after a Judge considers a challenge. Then the evidence must be relevant to a contested issue, and all irrelevant evidence should not be allowed to be considered by the trier of fact. Combined with relevance is the necessity for such evidence to reliable. This is called “laying a FOUNDATION” for admissibility, for the jury to hear.

Finally, the Judge may have to determine whether the proffered evidence is of a nature that it has marginal relevance, but a great deal or possible prejudicial harm, or will likely cause confusion with the jury. The judge acts as the “gatekeeper” of scientific evidence.

When a party to litigation (which, in criminal cases, is the criminal defense attorney versus the prosecutor) seeks to use expert testimony or a lay witness at trial, to discuss claims that physical or mental acuity can be proven by showing a person’s performance on divided attention or agility testing, the OPPONENT can seek a pre-trial motion hearing called a “motion in limine,” which is translated to mean “motion to LIMIT” the opponent.

When such a motion in limine is made (usually in writing, but not always), seeking to exclude or suppress the opponent’s anticipated use of either scientific or other special evidence that may have no proven reliability or acceptance in the legal community, the legal challenge is made by the party opposing that evidence.

Each party looks for helpful prior case law, from appellate courts, or peer-reviewed scientific studies, or similar proof of the authentic nature of what is being used to try to “make out their case.”

The opponent needs to be ready to show the Judge why their side should prevail. The trial judge is assigned the job of being gatekeeper on admissibility, to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The rules of appellate review generally give deference to a trial judge’s ruling, so long as it is based on solid proof or reliability and acceptance, when true experts weigh in to give their professional, expert opinions about the subject.

No scientific research that has been peer-reviewed in controlled studies has EVER proven scientific reliability for proving impairment by alcohol, marijuana or other drugs, by the police method of administering the modified Romberg test that is commonly in their training sessions.

Most training is in the so-called DRE (drug recognition) training program, but the ARIDE course covers (with officers) how and why a DRE officer will use it. Invariably, an officer with only ARIDE training will endeavor to administer the evaluation.

Perhaps the best article debunking the reliability of Romberg’s test (in any configuration) comes from researchers Cowan & Jaffee in their updated original research from 25 years ago. The article, Proof and Disproof of Alcohol—Induced Driving Impairment Through Evidence of Observable Intoxication and Coordination Testing, 9 Am. Jur. Proof of Facts 3d 459 (updated through December 2016), perfectly states the reason ALL Romberg test “claims” should be decided in favor of the arrested putative drunk driver (or an accused drugged driver).

Although many field “sobriety test” procedures are modifications of those performed by neurologists in diagnosing illness and by pharmacologists in assessing the psychomotor effects of drugs, this does not guarantee their accuracy as specific indicators of drug effects or observable intoxication or as predictors of driving impairment.

Very few experiments that rigorously test the validity of the claim that such procedures accurately indicate intoxication, or that rule out the influence of other factors, have actually been conducted. To the author’s knowledge, there have been only two studies—both unsuccessful—that attempted to demonstrate the relationship between any of the commonly used procedures, and actual or simulated driving impairment.

Several experiments, which are summarized below, have shown that the relationship between these coordination procedures and blood alcohol concentration is loose, tenuous, and subject to considerable bias. As the discussion in § 4 indicates, the weakness of these relationships permits the defense attorney to make use of several avenues of attack.

Almost no criminal defense attorneys or trial judges realize that the National Highway Traffic Safety Administration (NHTSA), which sponsored the most scientific examination of these procedures and developed the three best procedures for forensic use, recommends that these procedures be used solely during the roadside stop to establish probable cause for further investigation. [ Source for footnote 49: R. Engle, National Highway Traffic Safety Administration (personal communication, January 1988)].

Even after their refinement, the procedures recommended by the NHTSA were never meant to be introduced as evidence in the prosecution’s case—even when they were performed and scored properly—because there was no proof of their specificity and relevance. {Italics added by Mr. Head}.

The information gathered by these procedures suffers from several of the same problems that mar observations of intoxication. These problems include the lack of a self-comparison (to sober performance), the subjectivity of assessment procedures, the influence of environmental conditions, and the failure to preserve the evidence.

Some of the solutions are also similar—training and periodic recertification of officers who perform the procedures, the use of videotape, spot-checking the proficiency of the officers to insure objectivity, a thorough search for alternative explanations, conservative interpretation of observations, recognition of all of the problems with the assumptions used to form any conclusions, and further research and validation.

If all these were conscientiously implemented, then the information that was gathered could have probative value. Since this is almost invariably not the case, the defense attorney should do everything in his power to contest the admissibility of both the observations and the conclusions, or minimize the probative weight accorded by the fact-finder to such evidence if admitted, since it will undoubtedly bias the case against the defendant.

The U S Supreme Court (in the Kumho Tire case) has set forth four minimal requirements for trial courts the Daubert trilogy may consider when evaluating scientific expert reliability (these are non-exclusive, meaning that a particular case may require the proponent to produce more or additional evidence beyond the minimum 4 factors mandated by the Daubert trilogy: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; and (4) whether the evidence is generally accepted in the scientific community.

Under the Georgia standard (the Harper standard), a Judge must consider whether a procedure or technique has reached a scientific stage of verifiable certainty based on evidence available to him.

In a recent, 2017 Supreme Court of Georgia ruling, our state’s highest court determined that the modified Romberg test lacked a proper foundation, anchored in science, by which such junk science can be admitted in a criminal case for DUI-drugs. Mitchell v. State, ____ GA. ____ [2017 WL 2729573; decided June 26, 2017].

Mitchell v State Romberg

Once a scientific principle or procedure (like the REAL Romberg test) has been recognized in a substantial number of courts, a trial judge in GA may judicially notice (may allow) its level of verifiable certainty, merely from a number of other courts having already allowed it into evidence. The Mitchell case has addressed that question, and found this police test to be incompetent evidence, that is not allowed to be put in front of a jury.

No empirical studies have proven a police officer’s ability to RELIABLY use any form of a Romberg test to identify a drunk driver. No doctor in America or any other part of the world utilizes a Romberg Test for estimating alcohol or drug use, or impairment. NONE!

Comparing the REAL Romberg Test to the Police “Modified Romberg Test”

What is the Romberg test? It is NOT what the police are doing, at the roadside, for DUI -drugs cases. The following synopsis explains the simple, proven method of screening human subjects for proprioception.

Positive Romberg Test – The Police USE This Wording

By adding similar wording, like positive or negative, that are found in literature about the real medical tests, the police hope to create an AURA of legitimacy. Don’t fall for it. Junk science will never be real science.

To reiterate the REAL Romberg test, the test is done by requesting the patient to keep his feet firmly together, arms by the side and the eyes open at first. The person should be told to stand straight and rigid, look straight ahead, with eyes open, to evaluate how he or she performs for about sixty seconds. The balance of the patient is noted in this first step. This should be a “negative” result (meaning no loss of balance while eyes open).

If a negative Romberg result is observed, then the second part should be conducted. If a positive Romberg test result is obtained, look for cerebellum issues.

Next, while the patient is in the same position, he or she is told to do the same thing, but to close both eyes. The patient’s balance should be observed and noted for around 60 seconds. A doctor or staff member needs to monitor and stand by, closely, in case the person starts to fall over. The monitor should be positioned in front of the patient with both arms extended out, so as to “frame” the patient, but not touching the patient.

If the patient loses balance and has to be assisted in maintaining balance, this is a positive Romberg test, meaning possible neurological deficit from vestibular causes.

Romberg Test for GA DUI

Why the Police Modified Romberg Test Is Junk Science

The police version of this medical exam does not follow any standardized methodology of having the subject in the “normal” Romberg stand. No similar baseline of the test subject’s “normal” ability to stand without swaying or leaning, with eyes open for 60 seconds, is done. So, the baseline can’t be compared to the upcoming “closed eyes” performance. If the baseline was taken, and the person showed instability, there is no way he or she can accomplish the “eyes closed” version.

Additionally, insofar as these police-oriented tests, no large group study with many test subjects in various age brackets has been studied, nor were the requisite, prior scientific studies conducted to establish reliability for this so-called modified Romberg test interpretation. The detained driver is instructed to TILT his or her head back slightly, and CLOSE his or her eyes, and told to then try to estimate the passage of 30 seconds.

Georgia DUI Rhomberg Test

The entire modified Romberg test is NOT to judge “balance,” but is an evaluation purported to be judging if the person’s “body clock” is running too fast or too slow. The goal of a Romberg test DUI-DWI has no connection to the person’s health issues, or his or her normal ability to stand or walk normally.

However, almost ALL people who tilt their head back, and close their eyes will show far more imbalance that if the test subject was oriented straight ahead, like Dr. Romberg directed. This bogus police test has resulted in many innocent people falling, with some even suffering injury.

For the so-called “modified Romberg test” used by police, zero controlled, scientific studies have been conducted to confirm the police methods, or their claimed numbers of this “internal clock” test being accurate (i.e., taking into account all the false negatives and false positives from a substantial number of people in a controlled study) and for the law enforcement guide telling the officer the acceptable range of estimating time, in relation to 30 seconds (i.e., is 24 seconds the decision point, or is 35 seconds too long?).

The officer using this modified Romberg test has no baseline of performance ability with eyes open for this person, nor has any scientific research from a group study to prove the reliability of a “norm” for this individual (meaning, a complete lack of self-comparison to this person’s totally SOBER ability to perform), or any such statistics for a significantly large number of other test subjects in this person’s same age group.

To show the folly of this false “test,” consider one fairly-recent peer-reviewed scientific article, sponsored by the federal government, which collected medical testing data from over 5,000 test subjects aged 40 to 79.

The results then were tabulated to show a statistical, direct correlation of Romberg test interpretation of the test subjects’ inability to remain standing tracked advanced age, for both males and females, in certain age brackets, as far as inability to maintain the Romberg stand position.

Below is a partial view of one chart from the 5,000-plus test subject study mentioned above, so that the reader can see the difference between science and “parlor games,” as noted by Swedish toxicologist Dr. A.W. Jones, which he calls any roadside physical tests that purport to identify “sobriety,” other than use of a hand-held breath alcohol test device, which has been subject to regular calibration and a has known standard deviation range for the instrument.

Not only are these so-called modified Romberg tests “junk science,” non-scientific and not reliable, but your DUI lawyer SHOULD be able to bring in expert testimony from a human factors expert, a clinical psychologist, a medical doctor, or similar scientific expert in the field of testing and measurement, to convince any reasonable judge that no proper scientific foundation for police use of a Romberg test DUI can be part of the State’s evidence in its case-in-chief.

The DUI attorney does this by having the expert utilize true, scientific, peer-reviewed, published studies that have copious amounts of research that show that simple aging causes loss of balance and ataxia, as all humans get older.

Notice in the graphic to the left that — on average — of the test subject groupings, age 40 or over, only a minority were able to reach the target 30-second mark of modified Romberg without “failing.”

Plus, remember that the test subject for the police test has been made to lean his or head back at an angle, which no longer has the person in a “normal” Romberg test stand posture. This CREATES imbalance.

Police are not taught anything about science, or “norms” or reliability for roadside tests they are being told to perform on DUI-DWI suspects.

 

They are taught to do some impressive-looking roadside evaluations, preferably ON VIDEO, and then declare that this detained person’s “positive” Romberg test performance proves driving impairment. This is pure fraud being permitted in our Court system every time it is allowed. Poppycock!

No prior trauma history is ever asked or considered by police looking for a DUI arrest, and a significant percentage of people over age 30 have one or more potential explanations for possible poor ability to maintain balance.

SOURCE: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3190311/

Today, modern medical technology such as a MRI test can look deep inside a person’s body, in a non-invasive manner, to help identify problems with the dorsal columns of the spinal cord. These areas can be damaged due to trauma, tumor or other causes.

Car accidents are a primary cause of such trauma, as well as certain racing motor sports. But, neurologists today are still trained to use this in-office procedure, as a means of judging a patient’s “normal” sway, and inability to remain standing, once vision is taken away.

The Romberg Test Is a Medical Evaluation

The DUI Test is still used by some police officers today to try to determine if a driver is intoxicated. This FST is also called the Balance Test, and it is a non-standardized roadside test, which means it is even more subjective than the standardized tests.

The standardized field sobriety tests are the horizontal gaze nystagmus (HGN) or eye test, the walk and turn (WAT) or heel to toe, and the one-legged stand (OLT). Every single sobriety test that an officer requests you to perform DOES NOT legally have to be performed. These tests are VOLUNTARY!

They can only harm your chances of defeating the drunk driving charge, especially if your case goes to trial and a jury is shown your poor performance recorded on the police video.

A Lay Person (Police) Can’t SCORE a Non-Standardized Field Sobriety Test

The Romberg test requires a driver to stand still, close his or her eyes, tilt the head back, and count silently to the number the officer gives you. It is usually 30 seconds maximum. The officer is looking for loss of balance, excessive swaying, raising your arms to steady yourself, or falling backwards. This test is especially difficult to complete when you are standing on the side of a busy road at night, on an uneven surface, with blue lights swirling in your eyes.

Marijuana DUIs are on the rise, especially as more states legalize weed. A marijuana Romberg test is instructed the same way as the NHTSA SFST tests, but the officer somehow is able to decide if you are “high” or not from this bogus modified Romberg “guess 30 seconds” test.

Again, do not take this test. It only adds to the prosecutor’s evidence against you in your DUI drugs case.

Read more about the Mitchell case Mitchell v. State of Georgia.

Do I Need a DUI Lawyer? Searching for The Best DUI Attorney in GA

Some people foolishly try to self-assess their chances of winning the DUI in GA. The operable word here is “FOOLISHLY.” Just reading TRUE DUI case histories with: (1) BAC levels triple the alcohol legal limit, or (2) with a DUI refusal and failing all three NHTSA field sobriety tests, or (3) another drunk driving case report of a DUI checkpoint with a Intoxilyzer breath test double the legal alcohol limit, from two of our previous criminal trials will dissuade you from thinking that you have no chance to beat a DUI in court.

After being arrested for DUI in GA, some people are so depressed that they dwell on their mistake the night before, and not on beating the criminal charges. Fear of the unknown can be a powerful enemy. Our DUI lawyer partners WELCOME comparing criminal attorney comparisons. For example, our law firm has three different law book authors, which is unique in Georgia and possibly in all of America.

Georgia Romberg Test

A successful defense record for all Atlanta DUI attorneys in the law firm must include possessing the ability to neutralize field sobriety test evidence and finding ways to eliminate breath alcohol test results, especially where the “number” is in excess of the legal alcohol limit. Plus, know the LAW is critical, and this entails our DUI attorneys being familiar with every prior appellate decision on Georgia DUI laws and especially the Georgia implied consent law.

Drugged driving cases have grown by 100% in the last 15 years. Sleep driving DUI cases, after taking prescribed medications for insomnia or pain management are up by 400%. Plus, a conviction for DUI-drugs has more devastating DUI penalties in Georgia that a DUI-alcohol case, due to more severe loss of driving privileges and other loss of entitlements (e.g., loss of the GA Hope Scholarship due to a “drugs” conviction).

Each DUI attorney in our law office possesses special training on debunking “drug recognition” officers’ training and roadside tests like the “modified Romberg test” and the less-extensive ARIDE protocols require that our criminal defense lawyers know how to challenge a GBI blood alcohol or drugs test. Each of our Atlanta lawyers are an INSTRUCTOR in the three NHTSA standardized field sobriety tests (SFST), which exceeds the training of most police officers making arrests for DUI in Georgia.

Georgia Romberg Test Bubba Head

The best DUI lawyers in Atlanta, Georgia will offer you a FREE attorney consultation, explain how their criminal defense attorneys review your DUI case facts and implement a game plan for winning. Our three Georgia Super Lawyers aggressively represent clients accused of committing crimes through filing and arguing suppression motions. Limit your search to a lawyer for DUI who has achieved legitimate legal industry excellence attorney ratings, and who possesses a track record of proven drunk driving defense results on knowing how to beat a DUI. If our law firm has the RIGHT criminal defense attorney for you, ask our law office about our DUI attorney payment plans.

Call our DUI attorneys NOW, 24-7, for an initial criminal case review and to obtain FREE legal advice: 404-567-5515, or email our criminal justice lawyers.

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Field Sobriety Test Myths and Misconceptions

What Does DUI Mean?

How to Beat a DUI in Court

 

 

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