Field Sobriety Testing

Question: What types of field sobriety tests are administered in Texas?

Answer:

In Texas, multiple field sobriety tests can be given by the officer. It’s up to the officer to decide what field sobriety test will be given. However, if an officer is well-trained, he knows what he’s doing. If he is a DWI task force officer, he’ll perform just three tests. One is the HGN; that’s a horizontal gaze nystagmus. The horizontal gaze nystagmus basically means the officer takes a pen, he moves it in front of your face, asks you to follow it with your eyes, and if your eyes make any jerky motion, you fail that test. There are many of causes of HGN. If you’re tired, if you’ve taken some cold medicine, if you’ve had a prior head injury, all those things can cause you to fail the HGN. If you fail the HGN, he’s probably going to arrest you, even if you did the other tests perfectly. One of the other tests they give is a nine-step walk-and-turn. The nine-step walk-and-turn is where you touch heel-to-toe, turn around and come back, and touch heel-to-toe counting nine steps, but there are also other parts of that test that the officer is looking at, and he doesn’t tell you that he’s grading you on these other things. One of the things he does is he tells you to stand heel-to-toe while giving you the instructions. So he gets you to stand in a heel-to-toe position and he goes through a long description of the test. Because it’s uncomfortable, and it doesn’t feel natural, a lot of people then switch to stand with their feet shoulder-width apart; you’ve just failed the test according to the officer.

The other thing he looks for is when you walk heel-to-toe, he literally means touching heel-to-toe. If you are more than a half inch apart on any of the steps, it’s a failure. That’s very awkward. It’s very uncomfortable. You’re out at night. You might be cold. It might be windy, and he asks you to perform this test. The other thing that occurs is he really doesn’t take into consideration the ground. If you fail the test, you fail the test. However, there could be stones; there could be gravel; it could be unlevel. All those things make it difficult to perform that test. The other test they ask you to do is do a one-legged stand. During the one-legged stand, part of the instructions is to lift your foot up, tip your toe down, and look at your toes. The reason they want you to look at your foot or your toe is it makes it harder to balance. If you look out on the horizon, it’s easier to balance. But he asks you to do the unnatural act of looking at your toe and count. Very often, clients do very well at that, but the officer will fail them for not looking at their foot; he fails them for not pointing their toe down; or maybe once during the test, they drop their foot slightly. The officer grades all the tests and if you’ve failed any part of it, you’re probably going to be arrested for DWI. If you’re arrested for DWI, then he’s going to ask you to take a breath or blood test. Before he does that, he reads a form and he describes to you the ramifications of the test, and then it’s up to you whether to take the breath or blood test. If an officer asks you to perform other tests, it probably means to me, in most cases, the officer’s not well-trained, and that actually may help us.