If a police officer has pulled you over and has a reason to suspect you are operating the vehicle while intoxicated, they might request you to do field sobriety tests (FSTs). Does the law require you to submit to these tests? What will happen if you do not do the tests? This blog will help you understand what rights you have under the law of Texas and know the repercussions of both refusing and agreeing to submit to FSTs.
What They Are
Most drivers in Fort Worth do not understand their legal rights when a police officer pulls them over. If an officer stops you for breaking traffic rules or erratic driving, they will look for intoxication signs. These signs may include red, watery eyes, impaired coordination, uneven gait, slurred speech, and alcoholic order on your breath. The police officer will usually center on these possible intoxication signs while interrogating you about where you are going and coming from or whether you have been drinking. Whereas you have to give the officer your registration and license, the law does not obligate you to respond to any of their questions concerning your activities, especially if they are leading questions. Therefore, the best you could do is not to say much while inquiring if you can leave. Even though this response may lead to you being arrested for DWI, unless you are sure you are 100% sober, the tactic could assist you in avoiding the repercussions of a DWI conviction.
Together with the police observations, these questions are meant to establish probable cause to support a DWI arrest. Should the officer observe intoxication signs with regard to driving erratically or during a stop, they will generally require you to do a (PBT) portable breath test and field sobriety tests (FSTs). Whereas the state's informed consent law imposes punishments for declining a blood or breath test after a driving-while-intoxicated arrest, you can refuse to take FSTs and PBT.
Since the police administer FSTs to establish probable cause to make an arrest, the best move when in this situation is declining to take the tests. The most polite way of declining FSTs may include questioning the officer about the accuracy of the tests. Since the officer is incapable of confirming whether these tests are 100% accurate or not, you could then say you will not undergo testing until you have talked to your lawyer. Whereas the officer will not let you talk to your lawyer at this stage, you will have created a reasonable basis for declining to take FSTs that the prosecution can explain at trial should your case reach that point.
We Have Standardized and Non-Standardized FSTs
Whereas media portrayal of field sobriety tests makes it seem as though there are so many physical and mental tests that an officer could order, like counting backward, placing your index finger on your nose, reciting the alphabet, et cetera, these are all non-standardized tests. This means these exercises that gauge physical and mental capability are yet to be approved by the NHTSA (National Highway Traffic Safety Administration) as being reliable to predict alcohol-impaired vehicle operation. The NHTSA has approved only three standardized FSTs:
- The one-leg stand
- The walk and turn
- The (HGN) horizontal gaze nystagmus
The One Leg Stand Test
During the one-leg stand test, the arresting officer asks you to stand on one foot approximately six inches off the ground. The officer then asks you to count aloud until they ask you to put your foot down. The test lasts for at least 30 seconds. During this time, the arresting officer observes impairment signs like swaying when balancing, hoping to stay balanced, resting the foot on the ground, spreading out arms to remain balanced.
Per the NHTSA, 83 percent of people who show two or several impairment signs after this test will exhibit a 0.08% or greater BAC (blood alcohol content)
The Walk-and-Turn Test
The walk-and-turn test is precisely what the name sounds like — you take nine steps, heel-to-toe, along a straight line. You will then pivot and walk back to where you came from. This test is also called a 'divided attention test' since your mind will be distracted by the duty of paying attention to the officer's instructions and doing the tests simultaneously. The officer looks for specific kinds of mistakes when assessing your performance. These mistakes include:
- Miscounting the number of steps you are required to take
- Placing your arms out to help you stay balanced
- Improper turning
- Stopping in the middle of the test
- Stepping outside the line
- Failure to stay balanced while standing heel-to-toe as per the instructions
- Starting the tests prematurely.
Should you commit any two errors from the above list, the arresting officer will deduce that you failed the test regardless of whether the mistakes are minor or not.
The Horizontal Gaze Nystagmus Test
The HGN test involves the police officer observing your eyes as you follow a gradually moving object like a small flashlight or pen horizontally with your eyes. While doing this, the officer observes to see if your eyes are incapable of following the item. They will also be looking to see nystagmus — an involuntary eye jerk that at times arises due to alcohol consumption. Everyone has naturally-occurring nystagmus, although the usual human eye cannot easily observe it. But if you drink alcohol or use given drugs, nystagmus can be easily seen. Nystagmus will not result after using certain drugs, for instance, hallucinogenic drugs or marijuana.
According to the NHTSA, the HGN test permits the proper classification of about 88 percent of DWI suspects.
Faults of FSTs and Why You May Need to Refuse to Submit to Them
Failing one, two, or all of these FSTs can result in a driving-while-intoxicated charge. But there are several questions regarding how accurate these tests are.
Your lawyer's primary concern should be how reliable the test is. The HGN is deemed the most accurate of these three tests, but it is only 77 percent accurate. This raises concerns about how a person can be subject to criminal driving-while-intoxicated charges on unreliable grounds.
Another fault when it comes to FSTs is how the tests are administered. The arresting officer can fail to administer the tests properly because of missteps in the process or a lack of training. Officer bias could also result in inaccurate test results.
The motorist could also have physical or mental handicaps that inhibit them from conducting the tests properly. If the officer failed to inquire from you about these kinds of conditions before conducting the tests, it could result in them determining that you are intoxicated when you are not.
Factors Affecting The Reliability of Specific Tests
Various factors affect the reliability of the results of these tests. Note that one test could be affected by different factors from the other test. We discuss some of these factors here.
People With Poor Balance Can Easily Fail the One-Leg-Stand Test, Even When Sober
The one-leg-stand test can easily be interpreted as a person being impaired when their failure of the test did not have anything to do with intoxication. Additionally, it is not the most straightforward test for intoxicated people, but it could also be difficult for a person with poor balance. Most of us have difficulty with balance. It may be hard to stand on one leg and count aloud when under pressure. Even more, if you were aware the test results would determine whether you will spend the night in detention or go home, you may panic. Being overweight, having neuropathy, or any other physical condition could make it difficult for you to undergo this test. All these issues should be considered when evaluating the one-leg-stand test reliability.
The Walk-and-Turn Is Bound to Fail
You could fail the walk-and-turn test even when you are sober. Other reasons apart from intoxication could make you fail this test. Whereas tripping and falling are signs of intoxication, they may also be signs of a nervous or clumsy person. So many people become anxious when they hear about undergoing tests. Additionally, it is understandable that you would be scared doing a walk-and-turn with vehicles driving by, aware that the test results would determine whether you are detained or set free.
Under the state's DWI statute, the prosecution must prove beyond any reasonable doubt that you were intoxicated. Intoxication is described as the state in which you lack the normal functionality of your physical or mental faculties because of drug or alcohol use. The focus here is on the word 'normal.' What does 'normal ' refer to? What is usually considered normal physical capability in one individual can be significantly different from someone else. What if a person is overweight or has disabilities or leg or knee injury? All these concerns have to be considered when determining whether the walk-and-turn test is reliable as far as measuring intoxication in DWI cases is concerned.
Lastly, did the officer explain the necessary process for the test and give proper instructions? Many officers administering the walk-and-turn test start on the wrong foot or execute the instructions contrastingly than what they have explained. It is upon the arresting officer to provide clear, understandable instructions for the test. Failing to give clear instructions always results in unreliable results. Ensure your DWI attorney cross-checks your video to see whether the officer properly explained and administered the instructions.
Nystagmus Can Result From Other Reasons
Observable nystagmus can be caused by other reasons that are not intoxication when taking the HGN FST. Perhaps you are one of those people with naturally occurring nystagmus. There is a percentage of the population with natural nystagmus. If you are one of them, it could cause you problems if the officer does observe your usual behavior then mistakes it for an intoxication sign. The HGN test reliability may also be impacted by eye damage, brain damage, inner ear fluid, police vehicle lights flashing in your face.
Maybe the most prevalent reason the HGN test is unreliable to show intoxication is that the arresting officer conducting it sometimes administers it improperly. Per the NHTSA, if the officer fails to conduct the test appropriately, it is considered an unreliable measure of intoxication. This makes a lot of sense. If the arresting officer does the passes too quickly using the pen, holds the pen so close to your face, or fails to give the instructions properly as required, the test results become unreliable. Tests are only as reliable as the test administrator.
A skilled DWI lawyer will thoroughly review the HGN test to establish if the officer properly followed the requirements and protocols. In Texas, the burden of proving DWI charges beyond any reasonable doubt lies with the state. Any mistakes the arresting officer commits could give your attorney leverage to negotiate the most favorable outcome on your driving-while-intoxicated case.
Attacking FSTs at Trials
Whereas these standardized FSTs tests are NHTSA-approved, they are not necessarily accurate. Several studies have indicated that these tests can incorrectly depict a sober individual as impaired between 25% and 35% of the time. They are not objective scientific tests but subjective ones frequently done and assessed improperly. Even if these tests are done properly, several reasons may make a motorist perform poorly, and these reasons do not have anything to do with alcohol consumption, as mentioned above.
A skilled lawyer will air a lack of objectivity linked to these mental and physical tests that could be challenging even for the sober ones. You want to tell the jury that these FSTs have a higher rate of error that increases significantly if the arresting officer does not follow the precise protocols and instructions. Additionally, the jury needs to know all the adverse conditions present at the arrest scene or the driver experiences physically that could have raised the degree of the unreliability of the FSTs results.
The Judge Can Throw Out Your FSTs Test Results
The NHTSA enabled the utilization of FSTs, and it is clear that should a law enforcement officer fail to conduct the tests properly, the test results become unreliable. Your lawyer has to review the DWI videos, Field Sobriety Testing Sheets, and police reports to establish if the police officer administered the FSTs correctly. Failure of the officer to follow guidelines as per their training could render the test results unreliable and thus not admissible in court.
Your DWI lawyer can take proof of unreliable FSTs and bring a motion to suppress proof based on a lack of probable cause to make a DWI arrest. This is critical for your lawyer to consider because if your FSTs results are suppressed, and the judge determines that there was no probable cause for your arrest, everything after the arrest will also not be admissible in court. This would lead to a dismissal of your entire case.
Testing Breath Or Blood Specimen Samples
Instead of an FST, the police officer may request you to take your blood or breath sample for testing to determine your alcohol content. Whereas you will not face any consequences for declining to submit to FST in Texas, you will be subject to penalties if you refuse to submit to a blood or breath test. Notably, any motorist who declines to take a breath or blood test after a DWI arrest may have their privilege to drive suspended from ninety days to two years.
FSTs Are Almost Always Failed
It is estimated that nearly a third of sober individuals fail FSTs. Factors that can make you fail an FST are:
- Misunderstanding instructions — misunderstanding instructions may result from being incapable of hearing the officer because of loud noise from the surroundings or the officer explaining the instructions in an unclear and confusing manner. In all these situations, misunderstanding could result in you making errors during the FSTs.
- Anxiety — you cannot deny that being ordered to perform an FST test induces anxiety for many people. The physical anxiety symptoms usually manifest as shakiness, muscle tension, and other involuntary movements. The DWI officer can misinterpret these symptoms, making them deduce you are intoxicated.
- Fatigue — after driving around for a long time, you may experience fatigue. Like anxiety, fatigue can result in muscle tension in the legs, preventing you from keeping balance or walking straight. Certain prescription drugs can also lead to these fatigue side effects. The officer administering the test may see this as an intoxication sign.
Other reasons include injury, lack of coordination, illness, physical disability, sloped or uneven pavement, restricting clothing, drowsiness, inappropriate footwear, and more.
Find a DWI Attorney Near Me Experienced In Field Sobriety Tests Near Me
Being stopped by the police can be quite an intimidating experience. However, you need not panic. If you have agreed to take FSTs and the officer has charged you with DWI, or you have declined to undergo the tests, and the officer is charging you with suspicion of intoxication, our lawyers at Fort Worth DWI Defense Lawyer are readily available to help. We will aggressively defend and protect your legal rights and work to obtain the most favorable results for your case. Call us today at 817-470-2128 if you have been arrested for DWI in Fort Worth, Texas, to schedule a complimentary consultation.
