Tuesday, July 10, 2012

Texas DWI - How Field Sobriety Tests May Affect Your Case

In this DWI article, we will discuss how field sobriety tests could impact your case. If you are ever pulled over by a police officer on belief of driving drunk, you may be asked to perform field sobriety tests. You should know that Texas law does not require that you take these tests and that you are within your rights to refuse. While refusal to participate in a field sobriety test could potentially be used against you, the truth is your refusal does not imply or indicate your guilt.

In fact, by refusing the field sobriety tests the state may have very little evidence against you, meaning your Houston DWI attorney may be able to have the charges dropped entirely. It is unlikely that the police officer who pulled you over will tell you that field sobriety tests are strictly voluntary and that the tests are designed with the goal of giving an officer probable cause to make an arrest. Field sobriety tests are meant to prove that your mental or physical abilities were compromised by alcohol or drugs in your system.

Which Field Sobriety Tests are Commonly Used?

The most frequently used field sobriety tests are the Walk and Turn, the Horizontal Gaze Nystagmus and the One Leg Stand. Like the Walk and Turn, the One-Legged Stand is split between the direction phase and the balance and counting stage. During the instructions, the subject is told to stand with their feet together, arms dropped, listening to the instructions. Next, they must follow those instructions and raise one leg or the other a few inches off the ground, pointing the toes out, leg level. As they look at their raised leg, they must count slowly from one to thirty seconds. Two of the following behaviors will cause the person to fail the test: swaying while balancing, using an arm for balance, hopping around or putting the outstretched foot down.

The term “nystagmus” indicates an unintentional twitching of the eyes with the theory that nystagmus will be readily apparent in the event an individual is driving drunk. The officer will have the suspect track the movement of a fingertip or penlight only with their eyes. The officer is looking for evidence that the eyes are moving slowly or jerking noticeably, most particularly that the eyes moved as far to one side as possible, stayed in that position and jerked distinctly. The primary problem with the nystagmus test is that many officers are untrained therefore fail to administer the test properly.

The Walk and Turn consists of the instruction phase and the walking phase. During instructions, the suspect is directed to remain in a heel-to-toe stance with arms hanging naturally by their side while paying attention to the instructions for the test. Once the instructions are complete, the subject must take nine steps, carefully matching the heel to toe during each step, then turn as directed and take another nine heel-to-toe steps back while saying the numbers aloud. Try this at home on a level floor while you are stone cold sober and you will quickly see the problem. The officer is looking for any indication that the subject cannot balance properly during the instructions, starts walking before the instructions are complete, halts in the middle of walking, fails to properly touch heel to toe with each step, steps out of a straight line, uses the arms for balance, takes more or less than nine steps, turns incorrectly or loses balance at any time. Any person who shows at least two of these behaviors will be judged to have “failed” the test, however the “scoring” is completely subjective, according to the officers mood and discretion.

Factors Which Can Negatively Impact Field Sobriety Test Performance

There are a wide variety of factors which can negatively impact the performance in a field sobriety test, resulting in an arrest for a person who truly was not unduly impaired. The age and weight of the driver, a pre-existing physical injury, exhaustion, illness, an inner ear disturbance, impractical shoes such as high heels, poor road or weather conditions, a physical or mental disability or a head injury can all factor in to a negative performance during field sobriety tests. A large number of people are completely unable to stand on one leg with the other outstretched for thirty seconds under any circumstances.

Why You Must Hire a Houston DWI Lawyer Immediately

A highly experienced Houston DWI attorney can challenge the field sobriety tests based on a wide number of factors. For instance, how did you exit your car? Did you need support? Did the officer properly ask if you had any injuries or illnesses which might cause problems during the field sobriety testing? Did you have any injuries to back, legs, knees or feet or have balancing problems, middle ear problems or chronic vertigo—all of which could cause you to fail the tests? Are you fifty pounds or more overweight or over the age of 65? Were you wearing appropriate shoes for the test and was your testing performed on a well-lighted, dry, flat, hard, non-slippery surface?

In truth, taking field sobriety tests is rarely of benefit to a person suspected of driving drunk and are most often used by police officers to strengthen their case after they’ve already determined to make an arrest. The NHSTA considered field sobriety tests to be from 65-77% accurate when they are properly administered according to the guidelines. This means there is a wide margin of error involved in these tests and is yet another reason why it is crucial that you hire a knowledgeable Houston DWI attorney as soon as possible in order to minimize the damage to your future.

Author: Sullo & Sullo Attorneys

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