Failed Field Sobriety Test

Question: What happens when you fail a field sobriety test?

Answer:

In Texas, there are three field sobriety tests that are given for almost every single DWI. One is a nine-step walk-and-turn; one is a 30-second leg lift; and the other test is an HGN. What that stands for is horizontal gaze nystagmus. The problem with the horizontal gaze nystagmus is that there are numerous causes of it. I’ve had clients in my office, when I perform the test on them, they have the horizontal gaze nystagmus when we’re sitting sober in my office. An HGN test is when an officer takes a pen, moves it across in front of your face, and is looking to see if your eyes bounce. That’s what they’re looking for. If your eyes bounce or wiggle when he’s doing this test, you will be arrested. Jurors can’t see it and often don’t consider it good evidence. It’ll show the officer performed the test, but the movement in your eyes normally is not visible to the jury, so they’re going to be looking at the nine-step walk-and-turn and the one-legged stand. A lot of times, jurors go back and they say they couldn’t do that either. It’s very often that someone does well on those tests, and when they do well, the case is usually defendable.

If an officer asks somebody to perform other field sobriety tests – occasionally they ask somebody to do a 1-2-3-4, 4-3-2-1 with their fingers, that’s not a valid test. Sometimes they ask somebody to do the alphabet, start at the letter C, or do the alphabet starting at the letter Q; those aren’t valid tests either. Some judges will not allow that into evidence, some will, but NITS – the National Highway Traffic Safety Administration – only recognizes the three tests I’ve mentioned; the horizontal gaze nystagmus, the nine-step walk-and-turn, and the one-legged stand. You also have to realize the officer counts it as a failure on the nine-step walk-and-turn if your toes miss heel-to-toe by half an inch; that’s a failure. If you raise your arms up six inches for balance, that’s a failure. If at the start of the test he tells you to stand one foot in front of the other while he’s instructing you, if you get a little tired and you change and step with your feet shoulder-width apart, that’s a failure. No matter how good you are, those are all failures. When he asks you to perform the one-legged stand and one of the things he tells you is to point your toe down, if you don’t point your toe down, that’s a failure. No matter who good you are. Jurors usually don’t count that against clients, but the policeman did in making the arrest. Very often, people are arrested who look very sober, but they just failed the officer’s grading system. Another problem is that the officer does not tell you what he’s grading you on, so it’s kind of like you’re taking a test in school and you’re not told how the grading works. So you start off, you perform the test and you do well, but he fails you because you missed some minor aspects of the test. For example, when you’re doing the nine-step walk-and-turn, when you think of it, it’s 18 steps. It’s a failure if you just miss touching heel-to-toe a couple of times. It’s also a failure if when you do the turn you don’t take multiple steps. If you spin around and do a perfect ballet move, that’s a failure. The fact is, it is really hard to perform those tests. You’re set up for failure, but the fact that according to the officer you failed, doesn’t mean that you failed in front of a jury.