top of page
  • Writer's pictureBrian Foley

The Woodlands DWI Attorney - Should I take the field sobriety tests?

The Woodlands DWI Attorney - Brian Foley - Board Certified in Criminal Law

What are the field sobriety tests related to driving while intoxicated charges and should you take them?

If you are looking up the answer to this question there is a good chance that you've already been arrested for DWI and you heard from a friend or loved one that you should or shouldn't take these tests. You won't get to talk to your lawyer first before having to make this decision on the side of the road. If you ask for one then the jury will not be allowed to hear your request but they will be told that you refused to do the tests. Griffith v. State, 55 S.W.3d 598 (Tex.Crim.App. 2001).

To decide if you want to do the Field Sobriety Tests you should know what they are first.

The National Highway Traffic Safety Administration or NHITSA created standardized filed sobriety tests in the 1980s. These (SFSTs) as they are commonly referred to, consist of three standardized tests.

  1. The Horizontal Gaze Nystagmus Test (HGN)

  2. The 9 step walk and turn test (W&T)

  3. The one leg stand test (OLS)

The procedures for how to properly administer these tests are found in the NHTSA manual on Standardized Field Sobriety Tests. This NHTSA manual is used to train officers around the country not just in Texas. A common defense strategy is to see how well the officer followed the procedures outlined in the NHTSA manual. After this became normal practice and prosecutors saw that officers frequently did not follow the guidelines of the manual strictly the following paragraph was added to the manual near the beginning.

"The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFST’s will not always be administered under ideal conditions in the field, because such conditions do not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some effect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid. "

This is used by the State to attempt to white wash failures to comply with their own stated guidelines.

Over the next few blog entries we are going to discuss each of the tests more in depth. Here we will have a brief overview.

  1. HGN - The horizontal gaze nystagmus is an eye test where the officer asks the person being tested to look at a pen or the officer's finger or some object that the officer holds in his hand and waves in front of the person's eyes. The officer is looking for involuntary jerking of the eye. This is caused by the introduction of alcohol or another central nervous system depressant into the body. The small muscles that control your eyes do not function at their optimal level. You can't feel it when it is happening to you and you will have no idea that the officer is seeing anything or not. Many officers do not have equipment to show the eyes of someone they are testing even if they have a body camera. So if you perform this test it will likely only be the officer's word against yours as to if you passed.

In the above photo below the eyes on the bottom are showing HGN. The eyes on the top are not.

2. The 9 step walk and turn test is performed by placing your left foot on an imaginary line and then placing your right foot in front of your left touching heel to toe. Then you must maintain that position until the remainder of the instructions are given to you by the officer. The officer will be watching to see if you lose your balance at this stage but will not tell you that is a clue for which he is looking. The original SCRI studies suggested individuals over 65 years of age or people with back, leg, or inner ear problems had difficulty performing this test. Less than 1.5% of the test subjects in the original studies were over 65 years of age. Also, the SCRI studies suggest individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. You may or may not be given this option. And if you have high heels as your only shoe you may have to walk barefoot on hard, cold, hot, or rocky gravel. This can all lead to a poor performance through no fault of your own. The officer will ask you to take 9 heel to toe steps touching your heel to toe each step and then when you reach your 9th step leave your lead foot planted and make a turn using a series of small steps and pivoting on your lead foot. Then take 9 steps heel to toe back down the line. The clues they will be looking for are:

1. Cannot keep balance in instruction phase

2. Starts too soon

3. Stops while walking

4. Misses heel to toe

5. Steps off line

6. Uses Arms for Balance

7. Wrong number of steps

8. Improper Turn

It only takes 2 of these 8 clues for the officer to believe you are intoxicated and arrest you for DWI.

3. The one leg stand test is performed by choosing one foot to lift six inches into the air with your toe pointed, looking at your toe and counting 1001, 1002, and so forth until the officer tells you to stop. The officer may also tell you to count 1, 1000, 2, 1000, 3, 1000 or some other format of counting. The original SCRI studies suggested individuals over 65 years of age, people with back, leg or inner ear problems, or people who are overweight by 50 or more pounds may have difficulty performing this test. High heels matter here too. The officer will be counting to 30 seconds but again won't tell you. If you put your foot down at all, sway, raise your arms to the side for balance, or hop on the one foot that you are standing on then you will be counted off for a clue. Have two or more of those and the officer will consider you intoxicated and may arrest you.

Other factors you may want to consider before deciding if you want to do these tests are the fact that if you refuse that can be used against you to show that you were intoxicated. Also in Montgomery County, Texas the District Attorney's Office may deny an application for pretrial diversion which can get the case dismissed and expunged if completed successfully. The DA's office has a policy that if you were uncooperative with the officer and refused to do tests or refused to provide a sample of your breath or blood then they may not extend this type of offer in your case.

If you have a leg injury or condition or balance or inner ear issue that makes it impossible for you to perform normal motor skills then you probably should not do these tests. In fact the officer show prevent you from doing the walk and turn or the one leg stand in such cases. Additionally if you are over 65 or greater than 50 pounds overweight the tests should not be given to you.

Sometimes the client's performance (good performance) on the standardized field sobriety tests is the best argument that can be made from the defense perspective. Even people who technically show clues on their video can get a favorable outcome in part because of their performance. For example people who make an improper turn because they have failed to leave their lead foot planted and take a series of small steps may look quite sober when they do an about face. I've even seen a video of a gymnast who does a back handspring to show the officer that she is not intoxicated. She was still arrested.

So take that information for what it is worth and call a lawyer if you end up being arrested for DWI or any other crime.


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.

For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.

For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.

17 views0 comments
bottom of page