A Texas field sobriety test fails probably wasn’t what James Pierpont had in mind when he wrote, “jingle all the way” in Jingle Bells. While it may be the holiday season, we have a horror story we’d like you to imagine…

You’re leaving your company Christmas party around 11:30 PM when all of a sudden you’re pulled over for a broken tail light. In your spirits, you might have missed those unmarked police car license plates. You feel pretty good about your sobriety, but the cop claims they smell alcohol and ask that you step out of the car.

Already nervous, you step out of the car and are asked if you’re willing to perform some basic field sobriety tests. You know you’re not drunk, but the panic is already setting in. What do you do? Can you refuse these tests? Will you go to jail if you fail? What are your options?

Being asked to perform a Texas field sobriety test can be a no-win situation, but understanding what you’re facing could be the difference between driving home and being driven away in cuffs.

Types of Texas Field Sobriety Tests

The police have several tricks up their sleeve for Texas field sobriety tests. In these small tests, they personally evaluate whether or not a driver is intoxicated. Before requesting a field sobriety test, it’s not unusual for an officer to ask some questions to confirm their suspicions that you’ve been drinking—whether or not you’ve been drinking, where you’re driving from, etc. You are not legally required to answer these questions, although the police may try to make you think otherwise.

The Standardized Field Sobriety Test in Texas is comprised of three separate tests:

  • Horizontal Gaze Nystagmus: Commonly known as the flashlight test, the horizontal gaze nystagmus test tests whether your eyes jerk in response to following visual stimuli, usually a small flashlight or a pen. In this Texas field sobriety test, an officer will ask that you follow the object in a horizontal line, watching to see if your eyes jerk. Note: these officers have never been trained by an ophthalmologist, optometrist, or anyone who even worked at LensCrafters. Additionally, there is not a definition of how far or how many times the eyes must jerk. And they get to write down how many clues they say after they have arrested you. It’s a TRUST ME exercise. 95% of the time the Officer will say he saw all 6 out of 6 clues. This is the most untrustworthy of all the tests.
  • Walk and Turn: In this sobriety test, the police officer will ask that you walk nine steps heel-to-toe and in a straight line. Then, you’ll be requested to turn around and do it the other way. People are so deceived by how simple this test seems that they aren’t mindful of what the officer is looking for. The officer will then grade you on clues of “intoxication,” which are: 1. Can’t maintain balance in the instruction phase; 2. Starts too soon; 3. The wrong number of steps; 4. Steps off the line; 5. Misses heel to toe by more than ½ inch; 6. Raises arms more than 6 inches from the side; 7. Stops while walking; and 8. Improper turn. It only takes 2 clues to fail this test and you will be given the instructions only once and shown how to do it once. This test is designed for failure.
  • One-Legged Stand: Of course, they save the ridiculous field sobriety test for last. In this test, you are asked to stand with one foot, six inches off the ground, foot pointed, legs straight, and count out loud until the officer asks out to stop (30 seconds). The police are looking for if you 1. Sway (there is no definition of how far); 2. Drop your foot; 3. Raise arms more than 6 inches from your side; and 4. Hop. And only takes two clues to fail. Just like the Walk and Turn, you will be given and shown the test only once.

GO AHEAD, try the Walk and Turn and One Leg Stand at home! You should be able to get 0 or 1 clue if you are sober. Yeah, they are ridiculous. Or come by the office and we’d be happy to administer the tests to you and show you what the police are looking for.

What happens if you fail a Field Sobriety Test?

Failing these tests will then lead to the police asking for a sample of your breath or blood and reading the DIC-24 form. The first line of the DIC-24 form read “You are under arrest….” If this happens and you are given a choice: take the Breathalyzer. Juries have a harder time believing the results of a Breathalyzer/Intoxilyzer, and you won’t have to deal with a painful blood draw.

Additionally, if you are totally sober and the analysis confirms as much, you will more than likely be able to leave so long as you don’t have warrants and aren’t committing some other crime at the same time.

Should I refuse Texas Field Sobriety Tests?

Despite how the officers may act, you have the right to refuse any roadside sobriety tests. Now, whether or not you should refuse is a more complicated matter. If you know you’ve had nothing to drink and haven’t taken any drugs, taking the test could save you quite a bit of hassle. On the other hand, if you are even somewhat unsure, it is be best to refuse and ask for your attorney.

Refusing has one major pro in its favor, and one major con that you’ll need to consider before making a decision.

Pro: The prosecution will not have misleading footage to use against you in court. They will have to rely on potentially unreliable blood/breath analysis to prove your intoxication.

Con: You will more than likely be arrested on suspicion of DWI or submitted to blood or breath analysis on the spot. Going to county jail isn’t fun, but in the long run, it’s better than a full DWI conviction.

In general, you should request that a lawyer be present for any and all testing. The police are unlikely to comply, but it’s far from the worst statement you could have on your report.

Busted for DWI in Texas? Let Thiessen Law Firm fight for you!

Roadside sobriety tests are designed for you to fail, and DWI charges are rarely as cut and dry as people think. It’s also more than knowing how not to get pulled over by the police. Illegal traffic stops by the police, shaky testing methods and bad evidence can put anyone in a tough spot.

So what can DWI lawyer do for you? A strong DWI lawyer won’t just be able to debunk drunk driving myths — they will know how to fight back against DWI charges and help you win your case. Having beaten felony DWI, second DWI and even intoxication manslaughter charges, Mark Thiessen is one of Houston’s top DWI lawyers, and he can help you, too.

If you’ve been unfairly accused of DWI in Texas, don’t let your case wait another second—contact us today for a free consultation and get back on the road to freedom.

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Mark Thiessen

Mark Thiessen is an aggressive trial lawyer best known for his devotion to justice for his clients and high rank as a DWI Super Lawyer in Texas.