What Are Field Sobriety Tests And How Can I Pass Them?
The standardized field sobriety tests were developed in the early ‘90s. In the past DWI has gone through a significant evolution in how it was prosecuted and what evidence was used to prove up the elements of the offense. In the middle part of the twentieth century, officers would come up with their own tests. They would drop a certain amount of change on the ground and ask people to pick up 78 cents to see if people could do it. They would ask people sometimes to recite the alphabet backward, all different types of tests. There wasn’t anything to say that these tests were actually showing intoxication, so in the ‘90s, the National Highway Transportation Safety Administration developed 3 different tests that they ran some validation studies on. Today, these field sobriety tests are widely used by officers and law enforcement to identify and arrest anyone who may be driving under the influence. Once someone is charged and arrested for DWI as a result of failing these tests, they will need help and legal assistance from an Austin TX DWI defense attorney. The DWI defense attorneys at Blackburn Betts PLLC in Austin, Texas fully understand the DWI laws in Texas. Our DWI defense lawyers and attorneys also know the strategies that can be used to successfully win your case, especially when field sobriety tests are involved.
I wouldn’t characterize them as scientific validations because the correlation that actual performance on these tests has to intoxication is a lot less than what you would want or accept in a true scientific study. Sometimes it’s about 70% accurate and you generally want much more than that in a scientific study. Nevertheless, that was reason enough to say that the combination of these tests after we’ve done these validation studies can show that a person may or may not be intoxicated. So there are 3 tests that they do.
There is the horizontal gaze nystagmus test that is otherwise known as the eye test where they put the pen in front of your face and the police officer is just waving it there. What they are doing is first going to check for basic things that don’t constitute clues of intoxication and they are going to look for smooth pursuit. They are going to look to see that your eyes are tracking the stimulus together and they are not going off in different directions so they can say they are actually looking at the stimulus and stimulus being the thing that causes the eyes to do this, normally a pen or flashlight. For a little bit of background, they are looking for nystagmus. Nystagmus is a natural condition of the eyes. It’s the jerking of the eyes as they track a stimulus. The easiest way to think about it is when you have your windshield wipers on in your car, if the windshield is wet and you run your wipers, they go smoothly all the way across but if there is dryness on the windshield then the blade is going to skip as it goes across and that’s what the eye does when it’s tracking the stimulus. When I say that’s what the eye does when tracking the stimulus I mean that the eye does that all the time regardless of whether or not you are intoxicated.
It’s just that it happens so quickly and in such minute steps that the naked eye of a person observing it isn’t able to see it as it happens but with the introduction of a central nervous system depressant like alcohol, or sometimes PCP as well, it can cause the eye to move slowly enough when tracking that it will bounce when it tracks the pen as it goes across. So that’s what they are looking for. They are looking for it in each eye. So if they see it in the right eye and they see it in the left eye they are going to count it as a clue of intoxication for each eye. So what is effectively one clue because they are making sure your eyes are tracking it, they count as two clues. So the first thing they are going to check for is lack of smooth pursuit in your eyes, if they are bouncing at all as they go across.
When I say clues of intoxication, that is going to be something important in understanding how all these tests work because these are not passable tests, they are not tests like you’ve ever seen before. They are tests which as the officer will tell you, that are meant to show clues of intoxication. So when we call them field sobriety tests, they are not field sobriety tests, they are field intoxication tests and so they don’t show clues of sobriety, they only show clues of intoxication. This is a good time to point out that when you hear what they say in the Miranda Warnings on television that “anything you say can and will be used against you in a court of law,” it’s not if it works out well for you, they won’t allow you to use that, they are only going to use the bad stuff and that’s what the substance of these tests are: just the bad stuff. If you fail in any of these tests, the officer will have enough proof to charge you and arrest you for a DWI. Once you are arrested and charged with DWI, you will need help from an experienced Austin TX DWI defense attorney to defend your case. For more information, call our office to speak with our DWI defense attorneys in Austin, Texas.
Going back to clues, they are going to look for lack of smooth pursuit in the eyes and then they are going to bring the stimulus all the way out to the right and the left side past a 45 degree angle and it will make your eyes stay at the periphery there, where they can’t see any white of your eye anymore, and they are going to see if for a period of 4 seconds but no more than 30 seconds, the eye bounces at the periphery and if it does they are going to count that as another clue of intoxication. The technical term for this is going to be distinct and sustained nystagmus at maximum deviation. So, out of 6 total possible clues that they have in this test, they are going to check both sides of the eyes and they are going to have 4 clues of intoxication. The clues kind of ramp up, so you would never see this second clue if you didn’t observe the first clue, and so on. The last clue they are going to check for is onset of nystagmus prior to 45 degrees.
You may have encountered someone in the past that are so intoxicated that as you are looking into their eyes, their eyes are kind of bouncing back and forth as they are looking straight forward. That’s called resting nystagmus and that indicates extreme intoxication but what the studies indicate is that as the stimulus moves out from the midline, the nystagmus will start to happen at a certain point and they do have studies that indicate a 0.10 which is a little more than what the legal limit occurs at 45 degrees. So they are going to estimate it about a foot from your shoulder and they are going to say that your shoulder was a foot out of alignment so that’s 45 degrees and they are going to check to see if the nystagmus sets in before that point and those will be 6 clues that they will show on that test.
They are also going to check for vertical nystagmus by moving the stimulus up and that is absolutely not admissible in court because what vertical nystagmus indicates is that it is a high dose of alcohol for that individual. It doesn’t specifically indicate intoxication. So if someone never drank and then just had a glass of champagne they might show vertical nystagmus. If someone drank every day and they had a six pack, they might be legally intoxicated but they might still not show vertical nystagmus and that’s why it’s not admissible because it can be misleading. So that’s the first of the 3 field sobriety tests that they are going to perform and according to the courts in Texas it is the only scientifically validated one. What that means for our purposes is if they do not perform it correctly, then the results of that test can be thrown out.
I don’t generally worry about the Horizontal Gaze Nystagmus test, the officers think that it is the golden standard. They say the eyes don’t lie but for most of the time, the jury is not going to see what the eyes actually look like. All they are going to see is a person standing there, an officer waving a pen in their face and then saying “You must be intoxicated.” While the officers do have the ability to record what the eyes actually look like while they are doing it, they generally say they don’t do it for officer safety which makes little sense considering that they are already in close proximity to the defendant in order to perform the test. So then they are going to move on to the next test which is the walk and turn test. In the walk and turn test, there are going to be 2 phases to the test. This is not a scientific test, this is a test where the average person will look at the performance on the test and would say whether or not that person looks intoxicated, basically a common sense test.
This test is designed to make people suspected of being intoxicated look as intoxicated as possible. So, in the first phase, they are going to have you put your right foot in front of your left foot and hold your hands at your side, which is a relatively uncomfortable position for some people especially if you are overweight or a little bit older and they are going to have you hold that position while they give you the rest of the instructions. What they don’t tell you is that the test has already begun at this point and while you are in that starting position they are looking to see two things: they are looking to see if you start the test while you are still being instructed. That’s going to be one clue of intoxication in the instructional phase and they are also looking to see if you break that position at any point.
If you stumble completely out or if you just naturally put your legs out from the assigned position it’s not going to matter one way or another, it’s still going to be counted as a clue against you. It really doesn’t matter how many times you exhibit any of these clues, if you exhibit them just once, it’s going to be enough to get that check mark on the report and counted as a clue against you. On this test, we need to show 3 out of an 8 possible total clues in order to demonstrate intoxication or that’s what the officers say according to their validation studies. In my experience, the reality of it is that the officer has already made a decision that they are going to arrest you regardless of your performance on these tests. Then we move on to the second phase of the test, the performance phase. In this one, they are going to have you take a series of 9 heels to toe steps along an imaginary or real line and they have you keep your hands at your sides and they are going to be looking to see if you take the correct number of steps and then they look to see if you step off the line at any time.
They are also going to be looking to see if you missed touching heel to toe, they are going to be looking to see if you stop at any point during the test, and they are going to be looking to see if you performed a proper turn. A proper turn is going to be one where you put your lead foot as you get to the 9th step, which would be your left foot, down and then you take a series of small steps around it pivoting around and not taking your feet off the ground. Many people get this wrong and it is a completely natural thing to do and it’s not something that I would put a lot of stock in. The last clue that they are going to be looking for is to see if you bring your hands away from your sides more than 6 inches at any one point, they are going to test. That’s a total of 8 clues and out of those 8, if they see 3 that’s going to be enough for intoxication. Then, at that point, they are going to move on to the one leg stand test.
The one leg stand test has a total of 4 possible clues of intoxication. Again, these are clues of intoxication and not sobriety and you cannot pass these tests, you can only fail these tests. So what they are going to be looking for as they have you lift either one of your feet, they are going to have you point your toe, they are going to have you look at your toe as you are doing this, keep your hands at your sides during the entire period and don’t move them any more than 6 inches away from your sides. They are going to say they are going to have you continue to do this until they tell you to stop, But it’s a 30 second test and you need to keep your foot up for 30 seconds, if you put your foot down at any point, that’s one clue of intoxication, if you hop on your other foot, that’s another clue, if you bring your hands away from your sides more than 6 inches at any one point, that’s a clue, and the last one is if you sway visibly at all.
In this test they need 2 clues in order to show intoxication. One thing that I see frequently in this is, even if the person looks great, the officer will put a check mark for swaying on the test and when you look at the video and put the officer on the stand and say “Look at the video, you can see that the defendant is not swaying,” the officer will say something like “I know you can’t see it on the video but I could see it while I was there.” It’s an issue of resolution and being close enough. So this test is again, very much an easy one to be able to fail and is certainly dangerous for them, but those people who can keep their leg up for the full 30 seconds, that’s the only thing that I look for out of these tests and I say this person doesn’t look intoxicated and one of the only things that may not be a botch if you can do that effectively. Those are the 3 field sobriety tests that they will ask you to complete in a DWI investigation.
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