Field sobriety tests (FSTs) are tests are not really tests, they are balance and coordination exercises. These exercises are conducted out in the “field” by law enforcement agents to help them determine if a motorist (as well as an operator of a boat, aircraft, or even an amusement ride) is illegally intoxicated due to alcohol while operating a vehicle. These tests are performed prior to a breath or blood test. When a person fails a sobriety test--and most nervous people do fail--they will likely be arrested for DWI.
If you have been arrested for DWI in the State of Texas, then you should contact an experienced DWI defense lawyer. Doug Murphy, Board-certified in both DWI and criminal defense, knows field sobriety tests, understands how they should be administered, knows how to demonstrate in court how unreliable and unfair these exercises are and knows how to persuade a jury to disregard the skewed way police score the clues classifying sober people as intoxicated. If the police "stupid human tricks" caused you to get tangled up in a DWI arrest, contact Board Certified DWI Lawyer Doug Murphy today so that he can untangle your situation.
Field Sobriety Tests: What They Are
These tests can either be standardized or non-standardized. Nonstandardized tests; however, are not permitted in court; examples include stating the alphabet, counting backward, or closing your eyes and then touching your nose. Standardized tests are a set of three tests: (1) Horizontal Gaze Nystagmus; (2) Walk and Turn; and (3) One-Leg Stand. They are explained below.
Horizontal Gaze Nystagmus (HGN). This test refers to the involuntary jerking (nystagmus) of the eye that happens naturally when the eye gazes to the side.When a person is impaired by alcohol, the nystagmus is supposed to be exaggerated. There are three impairment indicators that officers look for in each eye: (1) the inability to follow a moving object smoothly; (2) distinct eye jerking when the eye is at maximum deviation; and (3) eye-jerking within 45 degrees of center. To perform the test, the officer will have you follow an object with your eyes slowly, back and forth. As you do so, the officer will look for the shake when your eyes are off at the sides. If nystagmus occurs at 45 degrees from the center, police assume you are intoxicated. The truth is, this is a medical test taught to police officers by police officers. Police officers simply do not have the medical training or background to properly qualify a person to be a candidate for this type of examination. According to noted medical experts, there are 11 medical related questions a physician should ask before performing the HGN exam. Without the medical background, there is no way for an officer to be able to distinguish involuntary movements of the eye caused by medical conditions or other non-impairing facts as opposed to being intoxicated due to alcohol. This is especially true when there are 38 scientifically documented causes of HGN. How can an officer with no medical training rule out all 37 other causes besides alcohol? To complicate matters even more, there are more than 40 types of nystagmus, but police officers are only trained on 2 types of nystagmus. How do they know the difference when they have no training to distinguish?
Walk and Turn. This test refers to probably one of the most known sobriety tests; it is like walking a tightrope, or the Johnny Cash walk-the-line routine. This test assesses the person's ability to complete tasks while his or her attention is divided. To perform the test, you take nine steps, heel-to-toe, along a straight line. Then you turn on one foot and return in the same manner but in the opposite direction. The whole time you are to keep your hands at your sides with your eyes down, and you cannot stop or waver. There are eight signs the officer is looking for, and if you exhibit any of them, it may be inferred you are illegally intoxicated to drive, even if nervousness and bad balance caused you to score these clues. The eight clues officers are trained to look for are:
- Unable to balance while listening to the instructions;
- Beginning before the instructions are finished;
- Stopping while walking to regain your balance;
- Failing to touch heel-to-toe;
- Stepping off the line;
- Using your arms to balance;
- Making an improper turn; and
- Taking an incorrect number of steps.
One-Leg Stand. This test requires that you stand with one foot about six inches off the ground. You must count aloud by one-thousands until you are told to lower your foot. The officer times you for 30 seconds. There are four indicators the officer looks for during this test:
- Swaying while balancing
- Using arms to balance
- Hopping to maintain balance; and
- Putting your foot down.
These three field sobriety tests are to be administered in a specific "standardized" manner, but even then the results can be wildly inaccurate because they do not take into account many other factors such as nervousness or bad balance causing you to score clues. Field sobriety tests are completely inaccurate, and sober people fail them every day. Do not accept what the police have to say about your performance at face value. If you have been charged with a DWI or related intoxication offense, call Doug Murphy today. Doug has won countless jury trial defeating field sobriety exercises, and breath and blood tests. There is a reason why police officers call Doug Murphy when they are arrested for DWI--because Doug routinely wins DWI cases at trial.
Challenges to Field Sobriety Tests in Texas
An experienced DWI defense attorney has a number of ways to challenge field sobriety tests in court. The two primary sources to challenge FSTs in court are to question the way the officer administered the test and the accuracy of the test(s).
Challenging the Administration of the Field Sobriety Tests
Law enforcement agents are trained in the administration of field sobriety tests. NHTSA, which created the tests, provides a training manual for this specific purpose. NHTSA also advises that if there is any deviation from the proper administration of the tests, or if there is any changed element, then the validity of the standardized field sobriety tests is compromised. That warning doesn't stop officers from changing the elements of a field sobriety test, and body-cameras are proving it. Examples of improperly administered tests include:
- Conducting an HGN test within 40 seconds, but if the protocol was properly followed, it should have been at least 82 seconds.
- Holding the object/stimulus for less than 4 seconds at maximum deviation during the HGN test, when it should have been held for at least 4 seconds.
- Demonstrating the walk-and-turn test -- which officers are required to do before the suspect does the test -- inaccurately, thus, the suspect follows in accordance and then fails the test.
Officers are human, and they can get lazy or careless just like any of us can get. Poor administration of field tests are very common, but most suspects are not aware, and attorneys they consult with do not advise them that the FSTs can be challenged, nor do they know what to look for. A lot of times, unfortunately, when field sobriety tests can be properly challenged due to error on the part of the police officer, the challenge is not met, and it is always to the detriment of the suspect.
If an officer fails to comply with NHTSA's procedures, and if an experienced attorney identifies the issue in due time and challenges it, the officer could risk having the evidence from the FSTs excluded from trial. The latter is reason you need to hire an experienced lawyer who is specifically Board certified in DWI defense and criminal defense. Doug Murphy is Board-certified in both, he can identify improper administration of field sobriety tests and will successfully challenge them in court.
Challenging the Accuracy of the Field Sobriety Tests
Taken as a whole, the National Highway Traffic Safety Administration (NHTSA) claims the three standardized tests can accurately indicate alcohol impairment 91 percent of the time, but these tests are rarely used in conjunction with each other. Texas law does not require it. If you fail the first, then you could immediately be deemed intoxicated under the influence without having to perform the remaining two tests. That's problematic for two reasons: (1) the tests on their own have a much lower accuracy rate; and (2) there are a number of reasons that people fail each one of the specific tests.
Accuracy of Each Standardized Field Sobriety Test
While the combined three tests have an accuracy rate of 91 percent per the NHTSA, the accuracy rate of the three tests is below this number. According to NHTSA, the individual accuracy rates are as follows:
- Horizontal Gaze Nystagmus test has an estimated accuracy rate of 88 percent.
- The Walk-and-Turn test has an estimated accuracy rate of 79 percent.
- The One-Leg Stand test has an estimated accuracy rate of 83 percent.
These 'accuracy rates are bogus. But even if you believe these so-called accuracy rates, that means up to 20% of suspects are not intoxicated illegally, and yet they were likely subjected to the shame and horror of an arrest. There are many other reasons FSTs are inaccurate, and much of it has to do with the mental or physical condition of the suspect.
Non-Alcohol Related Causes of Failed Field Sobriety Tests
Standardized field sobriety tests are designed for you to fail, even if sober. Who naturally walks heel-to-toe, and then do it on an imaginary line?
Apart from that reality, there are persons who have mental and physical impairments or conditions that make successful completion of the tests much more difficult. Some of these mental or physical conditions that can contribute to a failed FST include but are not limited to:
- General poor balance
- Bad back
- Bad knees
- Old age
- Inner ear problems
- Mental impairments or speech impediments that mirror signs of intoxication
- Weather conditions, e.g., strong winds, cold, rain
- Anxiety or nervousness due to the traffic stop and subsequent police investigation.
Though there are many reasons a person can fail a field sobriety test even when not intoxicated, it is important to recall that the results of these test are highly subjective, and the mere fact that the officer requests you to do them indicates that he or she already assumes you are intoxicated. So, the cards are already stacked against you from the beginning.
Can You Refuse Field Sobriety Tests? If so, What Will Happen?
You are under no obligation to perform a field sobriety test. So, yes, if you are requested to perform one, politely decline; it is always in your best interests. There are no penalties for declining to perform an FST.
There are, however, potential consequences. Refusal could be used as part of an officer's case of probable cause against you. You will likely be arrested, but you were probably going to be arrested anyway, at least now there will be that much less evidence against you. Additionally, if your case goes to trial, a jury can infer your refusal as evidence that you were intoxicated. With an experienced, knowledgeable attorney, the latter is not something to worry about.
It's important to remember that there's no real reason to perform the field sobriety tests. They have absolutely nothing to do with your driving ability and the accuracy rates to determine intoxication are questionable and highly challengeable in court. Field sobriety tests real purpose is more to cover police officers who arrest you for a DWI or related charge. FSTs are backup in case something should happen with the results of a breath or blood test. Don't give the police that opportunity.
Experienced DWI Attorney in Houston, TX
At Doug Murphy Law Firm, we devote our resources and capabilities to defend our clients' rights. We have decades of proven experience and a reputation earned in the courtroom for successful results. Attorney Doug Murphy is a Board-certified criminal defense lawyer and a Board-certified DWI lawyer who not only fights on behalf of his clients but constantly gives back to the legal community to teach other attorneys how to do the same. Doug Murphy wins DWI cases routinely by challenging sobriety exercises, breath, and blood testing. Contact Doug Murphy online or at 713-229-8333 today to discuss the circumstances of your case.