In Texas, you have no legal obligation to perform Field Sobriety Tests. If an officer asks you to perform these tests you can decide for yourself whether you want to participate. Based on my experience, however, there is almost no circumstance in which I would ever say that it is a good idea to perform these tests. Even if you are completely sober. I will explain why in greater detail in this post.
The Traffic Stop
Imagine you are driving home from an evening out with friends. You had a few drinks but you do not feel buzzed. You are very tired because you had a long week at work. All you want to do right now is get home and go to sleep. All of a sudden, you see blue police lights behind you. You look at your dash, realize that you were speeding, and pull over. You’re already a little nervous. Your heart is beating just a little faster. After all, you had been drinking and now you have to speak with an officer.
The officer comes over to your window. After a brief discussion he mentions that he can smell alcohol on your breath and asks you to step out of the vehicle. You’re now even more nervous. Your heart is beating even faster and your legs feel like jelly as you step outside. While you’re in this condition, the officer asks you if you would agree to perform some “quick tests.” He just “wants to make sure you’re okay to drive,” and says he’ll let you go when he’s finished.
Do not be fooled. At this point, the officer has most likely already decided to arrest you for DWI. He hasn’t told you this yet because he wants you to willingly contribute more evidence that will strengthen his case. The additional evidence he wants is a recording of your performance on a series of three Standardized Field Sobriety Tests on his body or dash camera.
Standardized Field Sobriety Tests
There are three standardized field sobriety tests that officers will give you.
Horizontal Gaze Nystagmus (HGN)
The first is called the Horizontal Gaze Nystagmus (HGN) test. During this test, the officer will ask you to follow a pen (or his index finger) with your eyes. While you are following his instructions, he is checking to see if your eyes twitch. If your eyes do twitch, it is an indication of intoxication. (This is an incredibly simplified explanation of HGN but it is essentially the gist of what the officer is looking for)
There are many problems with using this test as an indication of intoxication. First, there are multiple factors, such as oncoming headlights and rotating police lights, that could cause the test to result in a false positive. If the officer does not ensure that conditions are almost perfect, then this test is unreliable.
Also, the officer does not have a good way to record your eye movements during this test. Body cameras rarely capture any portion of this test up close. Even when they do, the lighting, especially at night, makes it impossible for the viewer to see the results. In the end, the officer expects the jury to just take his word for it that you failed the test.
Walk and Turn
The second test is called the Walk and Turn. Here, the officer will ask you to pin your arms to your side and stand with one foot directly in front of the other. The officer will give you the test instructions while you are in this awkward position. He will then ask you to walk nine steps forward, heel-to-toe, on an imaginary line, turn around on one foot, and walk nine more steps back.
The problem with this test is that the officer is not just grading you on your ability to walk the line without stumbling or swaying. In fact, he started the test as soon as he started issuing his instructions! He was already grading you while you were standing in that awkward initial position. If you swayed or stepped out of position during the instructions, before you even thought you were being graded, the officer already held that against you. If you asked the officer to clarify his instructions, he also held that against you.
The officer also does not take into account weather conditions, time of day, darkness, fatigue, poor health, and any number of conditions that could explain why someone would sway during this test.
One Leg Stand
The final test is called the One Leg Stand. The officer will ask you to stand on one leg, place the other leg out straight in front of you about 6 inches off of the ground, pin your arms to your side, and count to 30. He expects you to perform this test without losing your balance.
The problem with this test is that many people are just not that coordinated. This is especially true if a person is overweight or elderly. It is also unfair for the majority of us who are just not very athletic in general. It is an incredibly unfair test that many people will fail whether they have been drinking or not. Again, the officer will not take into account weather conditions, time of day, darkness, fatigue, poor health, and any number of conditions that could explain why someone would sway during this test.
Field Sobriety Tests are Rigged
Field Sobriety Tests are designed for you to fail. As you have seen, the officer will ask you to stand in unusual and awkward positions. He will ask you to walk in an unnatural fashion. He will ask you to stand on one leg while remaining completely still. You have to comply with each of these commands while you are nervous, tired, and cold. He will expect you to perform well on these tests even if you are un-athletic, overweight, elderly, or otherwise physically challenged. These are unfair tests that no person should be expected to ace under the conditions.
These tests also rely heavily on an officer’s interpretation of your reactions. If you wobble even one time, the officer could hold that against you as a sign of intoxication. If you get nervous and miss a portion of the officer’s instructions, he could also hold that against you. Again, these tests are incredibly unfair and even completely sober people will have a hard time performing well on them.
What Happens if I Refuse Field Sobriety Tests?
The officer will very likely arrest you if you refuse to perform field sobriety tests. This is a prospect that makes a lot of people afraid. It is this fear that officers exploit when they try to coax you into voluntarily performing field sobriety tests. The officer will dangle the hope that he will not arrest you in front of you as a carrot to get you to comply. Do not be fooled. This is false hope. The officer will likely arrest you no matter whether you perform field sobriety tests or not. The difference is that if you refuse, then you will not have given the officers more evidence to use against you,.
How Can I Clear my Name?
The mere fact that officers arrested you does not mean you will have a DWI conviction on your record. You will have several opportunities to clear your name after the arrest.
First, when officers arrest someone for DWI, they should always ask them to voluntarily provide a sample of their breath or blood for analysis. If you have truly had nothing to drink, then you can agree to voluntarily allow police to take. a specimen. When your BAC comes back as 0.00, then the State will likely dismiss your case.
If you have been drinking then your decision to give a specimen is more complex. I discuss this decision in a different post.
Second, under certain conditions, the prosecutor could offer you Deferred Adjudication Community Supervision. If you successfully complete probation in this scenario, then you would eventually be able to petition the Court for an Order of Nondisclosure. This order effective seals the record of your DWI from the general public.
Finally, you have the right to a jury trial. An experienced DWI attorney can give you the best shot at clearing your name through a jury trial. The prospect of securing a not guilty verdict is generally higher when the prosecutor does not have a recording of field sobriety tests to show the jury. If the jury finds you not guilty, then you are eligible to have your case expunged. This means that the Court and DA”s office will destroy all records of your DWI arrest. There are significant risks to selecting a trial, however, and you should speak to your attorney about before choosing this option.
Conclusion
You have the right to refuse to perform field sobriety tests during a DWI investigation. As I have discussed above, it is almost always in your best interest to refuse. If you ever find yourself in this situation, I hope that this discussion will help you make the decision that is best for you.
One parting comment. The safest and best option is to never drive while there is any question that you might be intoxicated. Trust me, the Uber ride home will definitely be cheaper than the expense of fighting a DWI.