Being asked to participate in Texas sobriety tests is often a lose-lose situation. Field sobriety tests are harrowing, nerve-wracking experiences, that are engineered to make you fail — even for the non-intoxicated. How accurate are field sobriety tests? What kind of Texas sobriety tests will they ask me to do? Can I say no?
Here to explain exactly what goes on during field sobriety tests is DWI expert Mark Thiessen of Thiessen Law Firm. Mark is Triple Board Certified in Criminal Law by the Texas Board of Legal Specialization, DWI Defense Law by the National College for DWI Defense, and DWI Law by the DWI Defense Lawyers Association; he knows the science behind why the tests are rigged and uses this to defend those that have been unfairly arrested.
What are the top 5 field sobriety tests?
There are actually only three standardized field sobriety tests in Texas. The National Highway Traffic Safety Administration (NHTSA) developed Standard Field Sobriety Testing (SFST) as a series of psychophysical tests for law enforcement to qualify signs of intoxication, and determine if they can arrest an individual under suspicion of DWI.
Keep reading: What is a DWI?
The Standard Field Sobriety Test (SFST) consists of a battery of three tests with the objective of obtaining validated indicators of impairment, and ultimately establishing probable cause for arrest. The three tests administered are the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT), and the One-Leg Stand (OLS).
One-leg stand test
The One-Leg Stand Test has 13 different instructions: (1) Stand straight, (2) place your feet together, (3) hold your arms at your side. (4) Do not begin until instructed to. (5) Say that you understand. When instructed, (6) raise either leg approximately (7) six inches from the ground, (8) keep the raised foot parallel to the ground. (9) Keep both legs straight and (10) look at the elevated foot. (11) Count out loud in the following manner: (12) one thousand one, one thousand two, one thousand three, and so on (13) until told to stop. The officer should use a timer and require the individual to perform this test for 30 seconds. This test has four possible clues and it only takes two minor errors for officers to think you are impaired. The clues are:
- Sways: If the individual sways at all while balancing.
- Raises Arms: If the individual raises arms more than six inches from their body
- Hops: If the individual hops to maintain balance
- Drops Foot: If the individual puts a foot down
Again, you are only given the instructions one time unless you ask for them again and you are not allowed to practice.
The Walk-and-Turn test (WAT) has a total of 17 different instructions. You must place your feet (1) on the line in a (2) heel-to-toe manner with your (3) left foot in front of your right and your (4) arms at your sides. The officer should then demonstrate the position you must stand in while he gives you all the other instructions. (5) Do not begin before you are instructed to. When instructed to begin, (6) take nine (7) heel-to-toe steps (8) on the line. Then on your ninth step (9) take a series of small steps to turn around. Then return (10) on the line taking (11) nine (12) heel-to-toe steps. (13) Count each step out loud. (14) Look at your feet while walking. (15) Do not raise your arms from your side. (16) Do not stop once you begin. (17) Say that you understand.
Now that is a lot. This test has eight possible clues and it only takes two minor errors for officers to think you are impaired. Signs of intoxication include if the individual:
- Can’t balance during instructions
- Starts too soon
- Stops while walking
- Misses heel to toe by over half an inch
- Raises arms more than six inches to regain balance
- Turns improperly
- Takes the wrong number of steps
- Steps off the line
Officers may tell you the instructions more than once if you ask for them. They will not let you practice and only require two clues to fail the test in their eyes.
Horizontal gaze nystagmus test
Horizontal gaze nystagmus is an involuntary jerking movement of the eyeball that occurs naturally as an individual’s eye gazes to the side. Normally, nystagmus (jerking movement) occurs when the eyes are rotated at high peripheral angles. When an individual is impaired by the effects of alcohol, this jerking is exaggerated and can occur at lesser angles. Additionally, an individual driving while intoxicated or driving under the influence will have greater difficulty tracking a moving object. As the test is administered, law enforcement personnel look for three signs of intoxication in each eye. The clues are:
- Lack of smooth pursuit: is when the eye cannot follow a moving object smoothly.
- Distinct and sustained at maximum deviation: this occurs if jerking is distinctly noticeable when the eye is looking as far to the side as it can (maximum deviation).
- Onset of nystagmus prior to 45 degrees: occurs when the jerking begins when the eye is within 45 degrees of center.
The officer tests each eye. If between both eyes, four or more of the signs of intoxication are observed, then the police determine you are intoxicated.
These tests are utter nonsense, and it is an absolute must that you hire an attorney who understands why.
Modified Alphabet or Counting Test
An officer may ask you to count from 63-57 backwards, or to recite the alphabet from the letter D to the letter R without singing it.
These modified tests have never been validated by scientists to indicate impairment or intoxication. Messing this up has no correlation with whether or not you are impaired or intoxicated. Additionally, there is no standardized start or end point for either of these tests, meaning an officer can ask you to start or stop wherever.
These tests are not standardized nor validated to determine intoxication and should never be relied upon.
Some old school officers still try to use this test, but it has been largely discredited. They instruct you to tilt your head back, close your eyes and estimate 30 seconds in your mind. When you think 30 seconds have passed, open your eyes, raise your head and say stop.
Like the modified alphabet and counting tests, this test has never been validated or standardized to determine intoxication. In fact, the real Rhomberg test is intended to measure the difference in how much you sway with your eyes closed versus open. This test was originally designed to see whether patients suffered from syphilis in the early 1900s.
Are field sobriety tests mandatory in Texas?
Can I refuse a field sobriety test in Texas? Since the standardized field sobriety tests in Texas are designed to make you fail, wouldn’t it be a lot easier to just not take it? Yes and no. You are not required by law to go through with the battery of field sobriety tests. Refusing to participate in field sobriety tests does not break implied consent laws in the same way that refusing a breathalyzer test does. However, if you refuse a field sobriety test you are almost certainly looking at taking a BAC test which can be harder to argue against in court.
So, can you refuse a field sobriety test? Yes, and it might be the right thing to do. But if you do take it and fail it, there is some recourse, assuming you have the right representation.
Defenses for failed standardized field sobriety tests in Texas
These tests have major problems. Not only are they designed to be failed, even by those who are sober, but they are administered in environments full of variables, with no regard for individual variance.
These are some of the many problems with both the One Leg and Walk-and-Turn tests:
- You don’t get to practice
- If you are 50 pounds or more overweight, this may affect the results
- Back, leg, and neck injuries can affect the results
- It is the individual’s job to disclose any injuries – the officer will not ask
- The officer must determine whether any clues were subject to nervousness, inexperience, incoordination or language barriers,
- These tests are often administered on the side of a busy road,
- The officers write how many clues you had after they have already arrested you.
There are many problems with the Horizontal Gaze Nystagmus test, all of which could come into play in a sound defense, which includes but are not limited to:
- Some people have natural nystagmus
- The police are looking for millimeter ticks of your eye, and they don’t even know what is natural for you
- There are plenty of ways to get a false nystagmus, i.e. if you are facing their headlights or rapidly moving traffic
- Each clue has very specific time requirements to properly administer this test: usually 14 passes, 82 seconds in all, and if an officer violates this, then the results are compromised
- They don’t have a camera close enough to your eye so that a jury can actually see the ticking themselves, so the police can say you failed even if you didn’t
- Head injuries may affect the results
Failed a Texas sobriety test? Call Thiessen Law Firm immediately.
If you were arrested on suspicion of DWI after a failed Texas sobriety test, it is not the end of the line. Those tests establish dubious probable cause using bad science, and you need to hire an attorney who can explain that.
Mark Thiessen is an expert on DWI in Texas, with extensive experience fighting DWI charges in court and winning. If you have been arrested on suspicion of DWI, do not delay. You need to start building your case before it is too late.
Call us today at 713-864-9000 or contact us online for a free consultation.
More Helpful Articles by Thiessen Law Firm:
- DWI FAQ with DWI Expert Mark Thiessen
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- Can You Get a DWI Expungement Texas?
- How to Beat a DWI Charge
- What Happens on Your 2nd DWI Charge?