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Frontal Lobe Syndrome And Your DWI Case

31 July 2015

Owen Bertrand

If you're the defendant in a DWI case and you suffer from frontal lobe syndrome, can your condition be considered a defense? Maybe. Learn more about how neuroscientific evidence can be used in court as part of your criminal defense strategy.   

What is frontal lobe syndrome?

The frontal lobes of your brain - which are located right behind your forehead - control your ability to reason and plan. They also control your impulsivity, moods, decision making, social behavior, and moral decisions. Damage to that area has been linked to marked personality changes, trouble with the law, alcoholism and substance abuse.

Studies of how frontal lobe damage can change someone's personality and ability to exert self-control have existed since at least 1848. A man named Phineas Gage was injured at work on a railroad when a 43-inch long tamping iron - essentially a long spike - was propelled through the front of his skull. Gage survived the accident, but by many accounts he transformed from a calm, reasonable, and hardworking man into a drunken, angry, irrational man whose behavior was unpredictable.

Can frontal lobe syndrome be used in court as a defense?

While science has been studying the phenomenon with increasing interest over the years, the courts have been largely disinterested

In part, the reason that it hasn't been used more often as a defense is that studies on frontal lobe syndrome and criminal behavior have had mixed results. From the prosecution's point of view, the difference between those with frontal lobe damage and those without is slight. Some studies indicate that only 0.9% of people with that type of injury committed violent crimes, compared to 0.6% of the regular population.

Defense experts, however, point to different studies. One indicates that within 5 years of an injury to the frontal lobe, 31% of victims will have legal problems and more than 50% will have threatened someone with violence. Even more importantly, studies are increasingly showing that the link between alcoholism and frontal lobe damage may be a vicious circle: people with frontal lobe damage are less likely to be able to control the impulse to drink or use drugs. The drugs and alcohol then further damage the frontal lobe of their brains, making impulse control even poorer.

What does it take to successfully use it as a defense?

The use of neuroscientific evidence as a defense tactic has become increasingly common. However, there are several hurdles that you have to face as a defendant:

• You need evidence that shows the damage to your frontal lobe in the form of medical records, accident reports, MRI scans, or other medical testimony.

• You need independent evidence that your personality has changed since the damage occurred. This would come from friends, relatives, co-workers, employers and others who knew you both before and after the injury.

• You need evidence that your personality changes have caused you to behave impulsively or irrationally in various situations - not just during the commission of your crime.

• You need witnesses who can testify that you didn't drink (or rarely did) or use drugs prior to the injury.

• You need to show that your injury is directly related to the crime. In other words, you wouldn't have committed the crime had your brain not been damaged, impairing your ability to control your impulses and behavior.

If you suffer from a frontal lobe injury, talk to your attorney about the possibility that your injury led to your inability to control your actions. A local attorney (such as one from Gerstenzang O'Hern Sills & Gerstenzang) will know whether or not your state laws and the nature of the crime will allow the defense.

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