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Texas DWI The Effect of Field Sobriety Tests On Your Case

This article will detail how field sobriety tests may affect your case and whether you should refuse the tests entirely. Most people who are stopped for suspicion of DWI will be asked to exit their vehicle and perform a series of field sobriety tests. Under Texas law you are under no obligation to perform these tests, and by refusing you are neither implying nor indicating that you are guilty of driving while impaired.

By refusing all tests, both field sobriety and breathalyzer tests you may actually be giving yourself a better chance later on as there will be little real evidence against you other than the officer’s observations which are very subjective at best. The goal of field sobriety tests is to prove your mental or physical abilities were extremely compromised by the alcohol in your system and the police officer will almost never tell you that the tests are voluntary.

The problem with field sobriety tests is that they are so difficult that even a stone cold sober person might be unable to complete them to the satisfaction of the police officer. In fact, even the National Highway Safety Traffic Administration considers the standard tests-the Walk and Turn, One Leg Stand and Horizontal Gaze Nystagmus-to be only from 65-77% accurate when they are administered under ideal circumstances following the guidelines to the letter.

This tells you that there is a wide margin for error in field sobriety tests and that, whether you took the tests or not, it is definitely in your best interests to retain legal counsel as soon as possible. Field sobriety tests are used by law enforcement to strengthen the case against you, usually after the officer has already determined in his own mind that you are driving drunk.

What Do the Field Sobriety Tests Consist Of?

While we’ve all heard about the police officer who asks the DWI suspect to recite the alphabet backwards or place a finger to their nose while tipping their head back repeatedly, in fact there are really only three widely accepted field sobriety tests used. The Horizontal Gaze Nystagmus is intended to pinpoint unintentional eye twitches which are supposedly readily apparent in an impaired individual.

The police officer will either use his finger or a penlight, moving it from one side to the other while instructing the subject to follow with their eyes only. When the eyes are at the farthest position to one side or the other the officer will be looking for any evidence of jerking eye motions. Many police officers are not properly trained in administering the nystagmus test therefore their assessment of whether or not the suspect “passed,” can be far from reality.

The One Leg Stand is basically just what it sounds like. The person must first listen to the officer give the instructions then must extend one leg outward, several inches from the ground, holding it steadily while counting from one to thirty. Should the person performing the test lean to one side or another, use an arm for balance, hop on the foot on the ground or put the outstretched foot down, the officer can use any two of those to declare the test “failed.” Like the One Leg Stand, the Walk and Turn consists of instructions and performing the test as instructed.

Basically the subject will place one foot in front of the other, heel-to-toe, walk nine steps, turn around and walk back nine steps, all in the heel-to-toe position. While performing this feat the subject is instructed to count out loud each step. The police officer will be looking for any suggestion that the person is unable to balance correctly while walking, begins walking prior to the completion of the instructions, stops in the middle, does not touch the heel to toe on each step, does not walk in a perfectly straight line, uses either or both arms for balance, takes less than the prescribed nine steps, doesn’t execute the turn correctly or loses balance at any time during the test. A person who exhibits any two of these behaviors will “fail” the test.

Circumstances Which Can Negatively Affect Test Performance

There are many factors which can cause a person to perform poorly on any or all of these field sobriety tests. Age and weight are always a factor particularly as older people tend to have less sure balance. A person who is suffering a cold or flu or is simply exhausted from a long drive may perform poorly. Pre-existing physical conditions or injuries or an inner ear problem could cause negative performance on the tests as could high heels, inclement weather, a rocky or uneven road surface, a prior head injury or a physical or mental disability. Many people are unable to balance on one leg for any length of time or perform a correct walk and turn under ideal circumstances.

Why You Need an Attorney

Your attorney can question the officer about how you exited your vehicle, if you had to hold on to the car frame to avoid falling down and whether or not you were asked about prior injuries or illnesses before performing the tests. Your attorney will introduce any injuries you might have to your back, legs, knees or feet as well as whether you have middle ear problems, vertigo or any type of balance issues. If you are more than fifty pounds overweight or over the age of 65, these facts may also be introduced and your attorney will likely question the officer regarding the condition of the road, whether it was well-lighted and whether your shoes were appropriate for such tests.