Can You Be Arrested for DWI after Passing Field Sobriety Tests?

Posted by Doug Murphy | Nov 05, 2019 | 0 Comments

Many driving while intoxicated (DWI) arrests follow a familiar pattern: an officer stops a driver for a traffic violation. Suspecting the driver is intoxicated, they ask the driver to perform field sobriety tests. The officer then informs the driver that he or she failed the field sobriety tests (FST) and places the driver under arrest. But what happens when the driver passes the FST and yet the officer still makes an arrest anyway?  Truth is, sober people fail police field sobriety tests because of the unfair scoring of particularized clues.

While rare, DWI arrests can still happen despite a driver passing some or all of the administered field sobriety tests. While many drivers might believe that “passing” these tests exonerates them or protects them from prosecution, the truth is it does no such thing.

All that is needed is a belief that your faculties are impaired. This can be suggested through physical and verbal cues without even taking the FSTs (or even if you take them and pass). Examples of verbal or physical signs of illegal intoxication include:

  • bloodshot eyes
  • shaky hands
  • slurred speech
  • lack of focus
  • belligerence
  • nervousness
  • slow to respond
  • too fast to respond

In the end, FSTs are just a means to justify their preconceived motion of intoxication and for the police to strengthen probable cause they need to arrest you.

Is There a Point to FSTs during DWI Traffic Stops in Houston?

These tests are subjective and offer little in the way of actual evidence that a person is intoxicated. The inaccuracy of field sobriety tests is well-documented. These tests frequently result in false positives – the National Highway Traffic Safety Administration has found these tests may be accurate as little as 66 percent of the time.

Ultimately, these tests are used as a way for law enforcement to fish for probable cause. If you fail them, which is easy for sober people to do given the nature of the tests, then there's probable cause. If you pass them but the officer still thinks you are unlawfully intoxicated, the officer will just use other signs of intoxication as mentioned above. So why take them at all?

What Happens if You Refuse to Take Field Sobriety Tests?

There are steep legal penalties for refusing to take a blood or breath test following a DWI arrest. The same cannot be said for field sobriety tests. There is nothing under the law that requires you to take these tests. There are no criminal penalties or administrative consequences should you politely decline.

That does not mean there are no consequences, however. Refusing to take part in the tests can be used as evidence against you. The prosecutor in your case will argue that your refusal shows your consciousness of guilt – only a drunk person would refuse a sobriety test, right? The officer can even use your refusal as part of the probable cause necessary to initiate your arrest. This sets up law enforcement in a position where it can point to your guilt no matter the outcome of the test.

Despite these consequences, there are no benefits to taking a field sobriety test. The entire process is designed to assist law enforcement in fishing for probable cause. Because of the risks compared to the lack of reward, field sobriety testing is never in your best interest.

Experienced Houston DWI Defense Attorney

If you have been arrested for DWI in Houston despite passing your field sobriety tests, you have plenty of options for the defense in your case. Attorney Doug Murphy has experience taking on DWI cases where his clients refused to submit to field sobriety testing. To learn about the approach he took in a case like yours, contact the Doug Murphy Law Firm, P.C. today.

About the Author

Doug Murphy

Doug Murphy is one of only two Texas lawyers Board Certified in Criminal Law by the Texas Board of Legal Specialization, and also in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.


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