Most people don’t know anything about the playbook when you’re pulled over for DWI. What do you have to do? When is it smart to say no? To blow or not to blow? Can you refuse a sobriety test? These are good questions to ask yourself whether you’ve been drinking or not, and knowing how to help your case during a traffic stop can save you and your lawyer from tons of headaches later on.
We can tell you now: you can refuse a field sobriety test, but it won’t solve all of your problems, and you’ll likely still be arrested. This doesn’t mean you should give up and comply with these ridiculous requests; field sobriety test accuracy issues are rampant, the tests are difficult to pass even if you’re completely sober, and they will still be used as evidence against you in court!
So what can you do? Keep reading to learn about what you can do when faced with sobriety tests and BAC tests, or, if you or a loved one is facing charges for DWI, call Thiessen Law Firm today at (713) 864-9000 for defense.
Types of field sobriety tests in Texas
In Texas, law enforcement officers use three types of field sobriety tests developed by the National Highway Traffic Safety Administration (NHTSA) to assess your level of impairment if you’re pulled over under suspicion of DWI.
These tests are:
- The horizontal gaze nystagmus (HGN) test
- The walk-and-turn test
- The one-leg stand test
While these tests seem straightforward on paper, they are deeply flawed, highly subjective, and difficult to pass — even if you’re sober. We’re here to explain why.
Continue reading: Are field sobriety tests accurate?
The HGN test
During the horizontal gaze nystagmus test, an officer will shine a light in your eye and ask you to follow an object. While you’re following the object, the officer will look for specific eye movements (or delays in your eye movements) that could indicate alcohol or drug use.
The problem? There are countless situations that can negatively impact this specific field sobriety test and ultimately, cause you to fail it; things like flashing lights, health issues, weather conditions, and the general chaos of being pulled over on the side of the highway make this test totally bogus — not to mention the police are trying to measure the difference in millimeters with their own eyes. They’re literally eyeballing it, calling it science, and taking you to jail for it.
Keep reading about problems with this test and the full list of horizontal gaze nystagmus clues
Walk-and-turn test
During the walk-and-turn test, an officer will ask you to walk a line — heel-to-toe — with your hands at your side. Once you make it to the end of the line, they typically ask you to turn around and walk back to them.
Sounds simple? Nope! If you sway or lose your balance at all, they’ll take this as a sign that you’ve been drinking. Begin early? Sign that you’ve been drinking. Stop for any reason? Sign that you’ve been drinking. Raise your arms to balance? Sign that you’ve been drinking.
Honestly, this test is hard, and we don’t think police officers could pass this test if they had six months of paid administrative leave to practice.
Keep reading about problems with this test and the full list of walk-and-turn clues
One-leg stand test
Another test you may be asked to complete is the one-leg stand test. This consists of you standing on one leg for around 30 seconds, without swaying or putting your leg back down.
Balancing on one leg can be difficult for anyone, but imagine if you have health issues, if you’re overweight, or if you’re not particularly coordinated…passing this test quickly goes from difficult to near impossible. Similar to the walk-and-turn test, the one-leg stand has a ton of different ways to fail, and we’re pretty sure you’d have to be Bruce Lee to pass this one without an infraction.
Keep reading about problems with this test and the full list of one-leg stand clues
Can you refuse a field sobriety test in Texas?
So now that we understand how subjective and difficult it is to pass a field sobriety test in Texas, the next logical question is: can you outright refuse to do them?
Luckily, you can. You are not legally obligated to follow through with a field sobriety test, and you can refuse to take one. Refusing a field sobriety test does not break implied consent laws like refusing a BAC test. And if, as we mentioned earlier, a police officer shines a light in your eye and decides to conduct a test without telling you, you can still decline to be involved. Politely let the officer know that you do not consent to this test and request that they stop.
Remember, you are likely on camera. Don’t get angry, and don’t be over the top about your refusal. Remain calm and be polite — it will help your case later.
What happens if I refuse to take a DWI test?
The police can’t arrest you for refusing a sobriety test alone, but that doesn’t mean you won’t be arrested. In fact, you probably will be arrested. A police officer only needs probable cause for DWI arrest, and a field sobriety test isn’t the end-all-be-all of probable cause.
The sad fact of the matter is that if the police want to arrest you, they’re probably going to arrest you. All you can do is make sure you’re on your best behavior, and that you don’t say or do anything that will make their job easier.
Can you refuse a field sobriety test and ask for a breathalyzer?
Now, you may be wondering if you refuse a field sobriety test, do you have to take a breathalyzer test? If you do refuse the Texas field sobriety test, you can almost guarantee that a breathalyzer or blood test is in your near future.
Implied consent laws dictate that you are required to take a breathalyzer or blood test if there is reasonable suspicion that you’ve been drinking and driving — you agree to this by getting behind the wheel of a car at all, although you cannot be forced to take a test without a warrant or your verbal consent, and can therefore refuse that test.
Can I refuse a breath test?
Can you refuse a breathalyzer? You can refuse a breath test in Texas, but it isn’t always a good idea. The question you should be asking yourself is “Is it a good idea to refuse a breathalyzer?”
Our answer to that would probably be: no. It is usually not a good idea to refuse a breathalyzer. Saying no to the breath test often just means that a warrant for blood draw is around the corner and breathalyzer accuracy is much lower than that of a blood test and therefore produces results that are often easier for your attorney to fight in court.
If you’re interested in learning more, check out our articles to learn more about why “do not blow” is bad advice and what to do if you’ve been DWI with 0.15 blood alcohol content.
Stumbled on a sobriety test or blew the breathalyzer? Thiessen Law Firm can help.
If you’re weighing whether or not to refuse taking a field sobriety test you should remember a few key points:
- They’re designed for you to fail
- Sober people have difficulty passing them
- If you refuse you will likely have to take a blood alcohol test right after
- You can overcome a DWI charge even if you fail these sobriety tests and BAC tests
That’s right! A charge is not a conviction, and as long as the judge has not rapped their gavel, you can live to fight another day — with the right representation.
Mark Thiessen is a board-certified ACS-CHAL Lawyer Scientist who has gotten 100+ Not Guilty verdicts and thousands of dismissals for his clients accused of DWI. If you or a loved one is facing high-stakes DWI charges, you need to get in touch with Thiessen Law Firm.
Call Mark Thiessen and Thiessen Law Firm today at (713) 864-9000 or contact us online to defend your freedom.
More Helpful Articles by Thiessen Law Firm:
- DWI with CDL: Can I get a CDL with a DWI?
- How to Avoid Administrative License Revocation
- What Happens at an ALR Hearing in Texas?
- Is a DWI a Felony in Texas?
- How to Win a DWI Trial
