Fight a Field Sobriety Test in Fort Worth / Tarrant County

Fort Worth DWI Attorney Effectively Representing Those Facing DWI Charges in the Fort Worth Area


The Value of Just Saying No during a DWI Stop in Tarrant County

Many motorists traveling the roads of Fort Worth and other cities in Tarrant County do not have a thorough understanding of their rights when they are pulled over by a law enforcement officer. Whether the officer pulled you over for erratic driving or a traffic violation, the officer will note what are often referred to as “indicia of intoxication.” These signs of intoxication may include the odor of alcohol on your breath, slurred speech, uneven gait, impaired coordination and/or red watery eyes. The officer will often focus on these potential signs of intoxication while asking you questions about the origin and destination of your drive or your alcohol consumption.While you need to provide the officer with your license and registration, you are not required to answer these more specific questions about your activities so the best option may be to talk as little as possible while asking if you are free to leave. Although this response might well result in a DWI arrest unless you know for a certainty that you are sober, this approach may help you avoid the harsh consequences of a Fort Worth DWI conviction.

These types of questions along with the officer’s observations are designed to create probable cause supporting a Fort Worth DWI arrest. If the officer observes signs of intoxication in terms of erratic driving or these types of “indicia of intoxication” during the stop, the officer typically will ask you to submit to field sobriety tests and a portable breath test (PBT). While the Texas informed consent law imposes sanctions for refusing a breath or blood test following a DWI arrest, you are free to decline to participate in field sobriety tests (FSTs) and/or portable breath testing.

Because the function of FSTs is to develop probable cause for an arrest, generally the best strategy in such a situation is to “just say no.” A polite way to decline field sobriety tests might include asking whether the tests are completely accurate. Because the officer cannot confirm that they are 100 percent accurate, you can then indicate that you do not wish to participate in the tests until you obtain legal advice. While the officer is not going to allow you to speak to an attorney at this point, you have created a reasonable basis for refusing to submit to FSTs that can be explained at trial if your case reaches that point.

Standardized Field Sobriety Tests

While media depictions of FSTs make it appear that there are many mental and physical tests that may be used by an officer, such as reciting a portion of the alphabet, touching your finger to your nose, counting backwards and others, these are non-standardized FSTs. This means that these types of exercises that test mental and physical dexterity have not been approved by the National Highway Traffic Safety Administration (NHTSA) as having any reliability for predicting alcohol impaired driving. The NHTSA has only approved three standardized field sobriety tests (SFSTs): (1) the horizontal gaze nystagmus (HGN); (2) the walk and turn; and (3) the one leg stand.

Horizontal Gaze Nystagmus (HGN)

The term “nystagmus” refers to an involuntary jerking motion of the eye which only becomes visible to the naked eye following the consumption of alcohol. The test involves moving an object like a pen flashlight from one side to the other to detect this jerking motion. While the test can be fairly accurate if administered correctly, officers frequently fail to meticulously comply with the appropriate procedures for administering the test which reduces its accuracy considerably.

Walk and Turn

This type of test is referred to as a “divided attention test” because your mind is distracted by both the task of listening to the officers instructions and performing the tests at the same time. The officer will look for specific types of errors when evaluating your performance:

Beginning the test prematurely

Failing to maintain balance while standing in the heel-to-toe stance as instructions are provided

Stepping off the line
Stopping during the test
Improper turning
Putting arms out to maintain balance
Miscounting the number of steps to take

If you make any two mistakes from this list, the officer will determine that you have failed the test even if the errors are very minor.

One Leg Stand

This test also is considered a divided attention test because you are asked to divide your attention between multiple tasks which some studies indicate is more difficult for those impaired by alcohol. The officer will observe your performance and note the following types of conduct when evaluating you performance:

  • Hopping to maintain balance
  • Swaying of your upper body
  • Extending your arm to keep your balance
  • Failing to remain on one foot

Just as with the walk and turn test, the officer will determine that you have failed the test if you exhibit errors on this list two or more times.

Attacking Standardize Field Sobriety Tests in Fort Worth DWI Trials

While these standardized tests have been approved by the NHTSA, these tests also are not particularly accurate. Studies have shown that even these three tests incorrectly identify a sober person as impaired between 25-35 percent of the time. These tests are not objective scientific tests but subjective tests that are frequently conducted and evaluated improperly. Even when the tests are conducted correctly, there are many reasons that a driver might perform poorly that have nothing to do with intoxication, such as illness, lack of coordination, obesity, injury, physical disability, fatigue, uneven or sloped pavement, inappropriate footwear, drowsiness, restricting clothing and more.

An experienced Fort Worth DWI attorney will communicate the lack of objectivity associated with these physical and mental tests that can be difficult for those who are stone cold sober. It is important to communicate to the jury that these tests have a relatively high error rate that rises significantly when the precise instructions and protocols are not followed by the arresting officer. The jury also needs to be aware of any adverse conditions at the scene or that are experienced physically by a driver that may have increased the degree of unreliability of the SFST results. If you have been arrested for DWI call (817-886-3078) to speak to a DWI Attorney at the Fulgham Law Firm P.C. We can help guide you through the process of protecting your freedom, driving privileges and reputation.