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Can I Refuse to Take the Standard Field Sobriety Test?

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Let’s get right to the point: do you have the legal right to refuse to take the Standard Field Sobriety Test (SFST)? Yes, you do. And you should. Period. End of blog.

Okay, you probably have more questions than that, such as, “Why in the world would a police officer waste time waving a pen in front of your face if he or she suspected you of driving while intoxicated?” The reason is simple: the SFST is designed for people to fail and thus provide the officer with evidence for a DWI conviction. Even stone cold sober, it is unlikely you would be able to pass the SFST.

 

So if you get pulled over, and the officer suspects you are intoxicated, should you just take the tests for a laugh? Absolutely not. Despite the fact that the results of these tests are baloney no matter when you take them, you give the officer an opportunity to look for other types of probable cause to make an arrest, including your failure to successfully perform the tasks involved in the SFST.

 

But let’s back up a second and take a look at how ridiculous the SFST is to begin with.

 

What Exactly is the Standard Field Sobriety Test?

The SFST consists of three tests created by the National Highway Traffic Safety Administration (NHTSA) to be used by police officers to determine if an individual is under the influence of alcohol and establish probable cause for an arrest. The tests are complicated and difficult to grade, especially in a scenario after sundown, and the officer and the individual attempting to successfully perform the SFST are just a few feet away from oncoming traffic. Again, the tests have very little to do with determining if a person is intoxicated; their purpose is to create a situation where the officer can find a reason to make an arrest. Remember, that’s not same as proving in court that the driver was operating a vehicle while intoxicated. The results of the SFST can still be used as evidence against you in court.

 

(Also remember a police officer can legally order you to get out of your vehicle. If this happens, do so slowly, and close the driver’s side door to your vehicle. Complying with the officer in this instance is not an admission of guilt.)

 

The SFST includes horizontal gaze nystagmus (HGN) testing (popularly known as “the pen test”), and two types of divided attention testing, the walk-and-turn (WAT) test, and the one-leg stand (OLS) test.

 

The HGN test is based on the assumption the eyeballs of an intoxicated individual will visibly jerk while attempting to follow a moving object. The many problems with this test include the fact that some people have natural nystagmus, or jerking of an eye, headlights from oncoming cars can produce a false nystagmus, and the officer attempting to observe millimeter-sized ticks of the eye without knowing what is natural for you and your eyes. Additionally, there is no definition of how far the eyes must move or how many times the eyes must move.  It’s a “trust me, I saw it” grading system.  (And 99% of the time, they always say you got all 6 out of 6 possible clues).

 

The walk-and-turn test consists of 15 (!) different instructions. Walking a straight line may sound simple, but when the walk is broken up into over a dozen different actions, and your failure to precisely perform just two of them means you’ve failed the test, it’s apparent that the test isn’t measuring anything other than how nervous and frustrated the testing officer can make you feel.

 

The one-leg stand test has just 13 different instructions, which all boil down to determining whether or not you can hop on one foot and count at the same time. If it sounds insane, it is. More accurately, it is a test that is designed for you to fail as well as provide the officer with cause to arrest you and evidence to convict.

 

What Happens if I Refuse to Take the SFST?

 

Refusal to take the SFST cannot be used against you in a trial, but during the stop, your refusal may prompt the officer to seek out other forms of probable cause. You also have the right to refuse a blood or breath test. However, refusing a blood or breath test comes with certain repercussions, and unlike the SFST, you won’t be asked to take a blood or breath test until after you have been arrested.

 

Houston DWI Defense

 

If you find yourself facing a DWI charge, and you mistakenly took and failed the SFST, Thiessen Law Firm can help. We are an award-winning criminal defense law firm with the experience necessary to successfully fight DWI charges and any SFST results presented as evidence at your trial. Contact us for a free consultation.

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One Trackback

  1. By How to Beat a DWI Trial - Mark Thiessen on December 15, 2015 at 12:53 pm

    […] for your arrest, which includes any Standard Field Sobriety Sests (SFSTs) performed (by the way, you can refuse to do these tests).  Lastly, we will examine whether you have any medical conditions that could have affected your […]

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