If you are pulled over for suspicion of driving while intoxicated (DWI), you may face searches or tests to make sure you are not driving under the influence of alcohol or drugs. Failing these field sobriety tests can lead to DWI charges and even suffering the consequences of a DWI conviction.
There’s something you might not know, though – these tests don’t have to be taken in the first place.
Below, we’re going to go over Texans’ rights in regards to field sobriety tests and what you can do to prevent DWI charges. Law enforcement officers will not always be clear when they instruct you through a DWI traffic stop, so the more you know, the more you can be in control of your situation.
Many clients ask why the police officer has them perform Field Sobriety Tests on the side of the road – why not just go straight to a DWI breath or blood test? Quite simply, the DWI officer must have probable cause to arrest you and request a breath or blood sample. In order to develop probable cause, police have worked with the National Highway and Safety Administration to develop standardized field sobriety tests to help officers develop probable cause for a DWI arrest.
First things first, though…
What Is a Texas Field Sobriety Test?
If law enforcement officers pull over a driver who they suspect might be under the influence or driving while intoxicated, they can conduct a series of three tests before proceeding to a Breathalyzer. These tests include:
“Horizontal Gaze Nystagmus” (HGN) Test
This test involves officers shining a light in your eye and asking you to follow a pen or other object as the officer moves it back and forth.
The officer is looking for nystagmus, which is an involuntary jerking of the eyes that is sometimes caused by alcohol consumption. Actually, every human being has nystagmus naturally but it is not easily observable by the human eye. However, if you consume alcohol or certain drugs, you may be able to see nystagmus more easily. Nystagmus is not a result of certain drug use, including marijuana or hallucinogenic drugs.
Can there be reasons, other than intoxication, that you have observable nystagmus when taking a horizontal gaze nystagmus field sobriety test? Yes! You may be part of the population that has naturally occurring nystagmus. There is a percentage of the population that has natural nystagmus, which can be a problem if the police officer observes your “normal” behavior and mistakes it for a sign of intoxication.
The reliability of the Horizontal Gaze Nystagmus test can also be affected by:
- Police car lights flashing in your face
- Inner ear fluid
- Brain damage
- Eye damage
Perhaps the most common reason the Horizontal Gaze Nystagmus test is an unreliable test for intoxication is because the administering DWI officer rarely administers the test properly. Under the National Highway Traffic and Safety Administration, if the DWI officer fails administer the test properly, it is deemed as an unreliable indicator of intoxication. This makes sense. If a police officer performs the passes with the pen too quickly or holds the pen too close to your face or doesn’t properly administer the instructions, the test will be unreliable. A test is only as reliable as the operator administering the test. An experienced and aggressive DWI attorney will thoroughly analyze the horizontal gaze nystagmus test to determine if the DWI officer properly followed the protocols and requirements. The State of Texas always has the burden to prove a DWI case beyond a reasonable doubt. Any errors by the DWI officers can provide your DWI lawyer leverage to negotiate a favorable result on your DWI case.
“Walk the Line” or Walk and Turn Test
You may have seen this test in movies or television shows before. With the Walk and Turn test, the administering DWI officer will ask the driver to walk a straight line, one foot in front of the other, heel to toe. The officer requires the subject to walk with hands down by their side and count out loud step-by-step until they reach step 9. At this point, the subject will be asked to do a 3 point turn and walk 9 more steps back to the starting position, heel to toe.
How reliable is this test? Is it possible to fail this test and still be sober? Of course! Is it possible that you can “fail” the walk and turn test for other reasons? Sure. While stumbling and falling can certainly be a sign of alcohol consumption, it can also be the sign of a clumsy or nervous person. How many of us have test anxiety? Would you be scared if you were taking a test with cars driving by knowing that your performance would determine if you go home or go to jail? Of course!
Under Texas DWI law, the State of Texas must prove the element of “intoxication.” Intoxication has been defined as lacking the “normal” use of your mental or physical faculties due to consumption of alcohol or drugs. Focus in on the term “normal.” What is normal? What is normal physical ability for one person can be drastically different from another. What if someone is overweight? What if there are knee or leg injuries or disabilities? All of these concerns must be factored in determining whether these physical tests are a reliable way to measure intoxication in a DWI arrest.
Finally, did the DWI officer administer the instructions properly and explain the procedure necessary to take the test? Believe it or not, we have caught many DWI officers giving instructions for the Walk and Turn Test and as they are explaining it, they start on the wrong foot or perform the instructions differently than they explain it. It is the responsibility of the DWI officer to give clear and understandable instructions to the test. Failure to provide clear instructions will ALWAYS result in an unreliable result. Make sure your DWI lawyer double checks your DWI video to confirm your DWI officer properly administered and explained the instructions.
The “One Leg Stand” Test
Last but not least, police will ask you to stand on one leg for 30 seconds, keep your hands down by your side and count out loud for 30 seconds. If you have to put a leg down, even toward the end of the test, the police will have evidence against you to make an arrest. This test is known as the One Leg Stand Test. It is a physical test that can easily be interpreted as someone being intoxicated when the failure of the test had nothing to do with intoxication.
Again, this is not the easiest test for people who are intoxicated, but it can also be used against someone who, say, just has bad balance. How many of us have a hard time with balance? Could you stand with one leg in the air counting out loud, under pressure? What if you knew the result would be the difference between a night in jail and going home? What if you are overweight? What if you neuropathy or some other physical condition that would make it impossible for you to take a physical test like this? All of these issues should be taken into consideration when making an assessment of the reliability of the test.
Failing any of these tests can give officers probable cause for making a DWI arrest. The results of these tests may also come back to haunt you in the courtroom.
Can My Field Sobriety Tests Be Thrown Out?
Possibly. The National Highway Traffic and Safety Administration created the use of field sobriety tests and has been very clear from the beginning that if a police officer fails to administer the tests properly (as laid out in the training manual provided to each police officer at the police academy), the tests are unreliable.
Your DWI attorney must review the police reports, Field Sobriety Testing Sheets and DWI videos to determine if your police officer properly administered the tests. Failure to strictly follow the guidelines provided by their training can result in the tests being ruled unreliable and inadmissible in court.
The best DWI attorneys will take evidence of unreliable field sobriety tests and file a motion to suppress evidence based upon a lack of probable cause to arrest for DWI. This is important for your DWI attorney to consider because if your field sobriety tests are thrown out and a determination is made that there is no probable cause, everything after your arrest is also inadmissible in court and now your entire DWI case will be dismissed.
What Texas Law Enforcement Can Do After a Field Sobriety Test
Law enforcement officers can use the results of these tests as probable cause that you are driving while intoxicated. At this point, the officer has the ability to search your vehicle and make a DWI arrest, even without your consent.
Texas law mandates persons who have been arrested for DWI have an “implied consent” and are legally required to take a blood, breath, or urine test. The results of this test offer even more evidence against you in a DWI case. When you head to court to fight charges, you will have to fight all of this evidence, starting with the field sobriety tests.
I arrest, even without your consent.
Texas law mandates persons who have been arrested for DWI have an “implied consent” and are legally required to take a blood, breath, or urine test. The results of this test offer even more evidence against you in a DWI case. When you head to court to fight charges, you will have to fight all of this evidence, starting with the field sobriety test.
Unfortunately, field sobriety test evidence is tricky. While a Breathalyzer provides a quick and (comparatively) accurate look at the amount of alcohol or controlled substances in your breath, the results of HGN rely more on officer testimony.
Unless your eyes are directly in front of the officer’s dashboard camera, there is no real evidence of the results besides officer testimony, and unless you have a strong DWI lawyer fighting your DWI charges, an officer’s testimony will go far in court.
Here’s the good part: you have the right to refuse these tests, and you should. Don’t hand over criminalizing evidence to law enforcement if you don’t have to. DWI charges are costly, and DWI convictions are even more of a burden.
What About “No Refusal” Weekends?
Texas law enforcement officers are not above scaring people into taking tests. They may even lie about the law to get your consent. “No refusal” weekends are a prime example of scare tactics that often trick drivers into consenting to tests that they do not have to take.
“No refusal” weekends are advertised by law enforcement as periods when judges are on call to offer a search warrant on the spot. These weekends are put in place to encourage people to just take the field sobriety tests, giving them little hope of any other option. However, just because a weekend has a special name does not mean your rights don’t stand.
If you are pulled over and told that it is a “no refusal” weekend, you still have the right to refuse a field sobriety test or a Breathalyzer. The officer will still need probable cause to believe that you have been drinking and driving. Does your breath smell strongly of alcohol? Is there evidence of controlled substances in the car? Are you slurring your words or driving on the wrong side of the road?
Police will need an affirmative answer to any of these questions before they can get a search warrant. Without reasonable cause, you have the right to refuse any test or search.
Even if you have submitted to field sobriety tests and failed, you may still be able to fight your charges. Reach out to a Texas DWI lawyer for more information.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.