A similar scenario occurs in many DWI traffic stops. The police pull over a vehicle for a traffic infraction. The officer approaches the window and smells an odor of alcohol coming from the driver. The officer asks the driver if he or she has been drinking and the driver acknowledges to having had a couple of beers at dinner. Despite the fact that there is absolutely nothing illegal with drinking a couple of beers (or cocktails, or glasses of wine, etc.) and driving home, the officer immediately asks the driver to exit the vehicle and initiates a DWI “investigation”.
The law in Texas, like every other state, is that it is legal to operate a motor vehicle with alcohol in your system as long as you are not intoxicated. Intoxicated in Texas is defined as having lost the normal use of your mental or physical faculties due to the introduction of alcohol or having a blood alcohol content (BAC) of .08 or higher. Of course, an officer can never know whether or not a person has a BAC of .08 when they are on the side of the road, so they are left to determine whether there is probable cause to believe someone has lost the normal use of their mental or physical faculties. How do they make this determination? They rely heavily on the so-called Standardized Field Sobriety Tests (SFSTs).
In theory these SFSTs are designed to provide officers in the field with reliable information to assist them in making a correct DWI arrest decision. However, in reality these tests provide nothing more than cover for an officer to justify the arrest they already intended to make.
What are SFSTs?
There are three basic Standardized Field Sobriety Tests. The Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). All three of these tests are designed to be taken together and the police are trained to look for “clues” of intoxication for each one. Each test has a certain number of “clues” that police are looking for and if they see a certain number then they will determine that the person failed the test.
Incorrectly Administered Tests are NOT reliable
As noted by the name, they are designed to be conducted in a standardized way with the same instructions given to everyone and they are designed to only be given to someone who is a proper candidate for these tests. For example, if someone has a history of back, neck, or head injuries then that person would likely not be a proper candidate and the test should not be given to them. This makes perfect sense since that person would likely exhibit the “clues” an officer would look for but the officer would have no idea if those “clues” were related to intoxication or the person’s physical limitations.
Unfortunately, in numerous cases the officer performs the tests incorrectly or they are given to people who are not proper candidates for the tests. Oftentimes, the police officer will acknowledge these mistakes and admit that due to these mistakes the validity of the test results are compromised. So what do prosecutors typically do in these instances? They present these invalid results to the jury anyway and argue that these “small mistakes” don’t really matter and that jurors should convict them based on these faulty tests.
Correctly Administered Tests are also NOT reliable
While many people may be surprised to learn that admittedly unreliable results are routinely used to convict people of DWI, people tend to believe that these tests if performed correctly are reliable. As an attorney who has handled hundreds of DWIs and who has tried many cases to juries, I would argue these tests are seriously flawed in a fundamental way.
Here’s an example. Let’s take the Walk and Turn (WAT) test and assume that it is performed 100% correctly by the officer and the person taking the test is an ideal candidate for the test. Essentially, the WAT requires someone to take 9 heel-to-toe steps down an imaginary line, turn around, and take 9 heel-to-toe steps back. The WAT has 8 “clues” the officer is looking for: (1) unable to maintain balance while listening to instructions, (2) beginning the test before you are told to begin, (3) stopping while walking the imaginary line, (4) taking a step entirely off the line, (5) missing heel-to-toe on one of the steps, (6) using your arms to balance, (7) making an improper turn, and (8) taking the wrong number of steps.
So imagine you are pulled over for DWI and you are asked to perform these field sobriety tests. It is dark and you are the side of the road where there are 2-3 police officers hovering over you and asking you pointed questions that make it clear that if you fail these tests you are going to jail. The officer properly instructs you on how to perform the test. You are excited and nervous and you start to take the 1st step. The officer tells you, “Hold on. I haven’t told you to start yet.” You relax and wait. He tells you to begin. You take 9 perfect steps. All on the line and all heel-to-toe. You never use you arms for balance, never lose you balance during the instruction phase, and never stop while you are walking. You make a perfect turn. You take 9 steps back. The first 8 are perfect – all on the line and all heel-to-toe. On the last step, the 18th total, your feet remain correctly on the line, but the gap between your heel and toe is ¾ of an inch. Otherwise, perfect.
Guess what? You just failed the WAT test. You started too soon and you missed one (yes, just 1 of 18) heel-to-toe steps. That is 2 “clues” you have exhibited. According to the standards the police follow, if you have 2 of 8 clues on this test then you have failed the test. Further, the officer will appear at trial and inform the jury how in his training and expertise these results support a DWI conviction.
Does this sound like a test that is designed to determine whether or not someone is actually intoxicated or does it sound like a test that is designed to convict anyone who is arrested for DWI?
Have questions? Need representation? Contact Us.