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If a police officer gets you out of the car and starts asking you questions about whether you were drinking, chances are that indeed you are under suspicion for DWI. Texas DWI laws are entirely subjective in nature based on the ambiguous legal concept of what exactly constitutes the determination of the loss of “normal use.” This “opinion” evidence gathered by police officers usually consists of results administered of Standardized Field Sobriety Tests (“SFST’s”). These tests are standardized and must be strictly adhered to and administered exactly as specified by the National Highway Traffic Safety Administration (“NHTSA”).

The three tests are the Horizontal Gaze Nystagmus test (“HGN”), the Walk-and-Turn test (“WAT”), and the One Leg Stand test (“OLS”). Sometimes they may conduct other non-standardized tests after, such as what is called the Rhomberg, or “balance” test, possibly touching your nose, contacting backward, and/or reciting the alphabet. While these studies are listed in the NHTSA manual that governs how the DWI investigation and how it is conducted, usually they only do the three main SFST’s.

These SFSTs are strictly governed by guidelines set forth by NHTSA as to how they should be conducted nationwide. The SFST’s are the primary tool police use when making a DWI arrest. You should never agree to take the field sobriety tests. These tests are designed to give the police probable cause to arrest you and are designed for failure. It is vitally important that when they instruct, demonstrated and grade these standardized tests, they must strictly do so according to the standards NHTSA dictates. There is a manual published periodically that govern the exact protocol with which they should conduct these tests. It should be noted, rarely do they ever instruct them correctly. The problem is every individual is different and unique in some way, and we cannot put all into the same box. Thus, it is impossible for the same set of rules that are applied to everyone to consider specific traits for any certain every person. It is vitally important that when they instruct, demonstrate, and grade these SFSTs, it is done so strictly and according to the NHTSA standards. There is a manual published periodically that govern the exact protocol with which they should conduct these tests. However, NHTSA and the SFST’s do not take into account certain factors that may apply to individuals, such as disabilities, injuries, age, weight, even lack of basic coordination, and simply being nervous!

These SFST roadside agility tests are supposed to help an investigating police officer interpret whether, in their opinion, someone has consumed some substance to the degree where they have impaired their ability (and have lost the use of the “normal” mental and/or physical faculties) to operate a motor vehicle. It is vitally important for the SFSTs to be demonstrated and instructed correctly and must be administered in the absolute proper fashion according to the instructions outlined in the NHTSA manual. It is very important that the investigating police officer does not deviate, stray, or vary from the exact set of NHTSA instructions when demonstrating and administering the SFSTs. Often, some departure from the NHTSA guidelines occurs in an overwhelming number of DWI investigations, including when the instructions are given and/or possibly when the physical tests are demonstrated. Many police officers simply do not have the requisite and proper experience and understanding of how to administer the SFSTs according to the standards of NHTSA strictly mandates. If any of the SFSTs administered is NOT done strictly in accordance as specified in the NHTSA guidelines, there is a little scientific basis to assume that any of the conclusions or results have any validity whatsoever.

Standardized Field Sobriety Tests – Defined

The Standardized Field Sobriety Tests (SFST’s) consist of three different tests, and are used as a mechanism by police officers nationwide to attempt to identify individuals suspected of operating a vehicle while impaired, or intoxicated according to Texas law. NHTSA has set forth very strict rules, procedures, and guidelines to follow for all three of the main standardized field sobriety tests (SFSTs), which consist of:

  1. Horizontal Gaze Nystagmus (“HGN) Test: This is always called the “eye test, and most believe the task as if they can simply follow a stimulus such a pen or a little light with their eyes as it moves slowly. This is not what they are actually testing;
  2. Walk and Turn(“WAT”) Test: This is the second test usually conducted, and many instructions and directions are given to a person, while they are asked to stand in a very awkward and abnormal position/is the walk and turn, and the third is the one-leg stand;
  3. One Leg Stand (“OLS”) Test: This is the third test conducted and usually the last, and it is where the police officer will basically ask an individual to stand on one leg, while the other is raised approximately six inches above the ground for a period of thirty seconds. The officer will instruct you to look at your raised foot while performing the test and to count out loud while you attempt to perform the test.

The police officer is supposed to give you instructions on how to do each test, and then grade your performance. SFSTs are conducted and asked to be performed, in large part, as psychophysical tests, where a person is no doubt filled with anxiety, nerves, and stress, but nonetheless that utilize them in trying to assess whether a person is possibly legally intoxicated according to the law in Texas. This aggressive technique designed to apply pressure is done by the police officer often from the very beginning, as they are trained to use as a tactic, these psychophysical ploys, and manipulative tests when contact is made.

For instance, one of the items they will usually attempt is what is termed as a “divided attention” test, where they ask a person to conduct two tasks simultaneously at the same time. For instance, the police officer may ask for your driver‘s license and insurance at the same time, and while a person is trying to gather them they also may throw in other questions to see if they have the “normal” use of their mental faculties. In theory, any divided attention test that is done requires the driver to both mentally process one task, usually something that involves the mind like answering questions peppered at them, while also requesting items different in design, such as asking a person to retrieve a requested item (which would be a physical task).

There is absolutely no legal requirement for you to take these tests.  The reason the police officer requests you do these tests is because he thinks you are intoxicated.  However, there are many reasons other than intoxication that a person may not be able to do these tests, such as fatigue, nervousness, physical disabilities, road or street condition, wind, weather, weight, and age.

You should always be polite to the police. They’re good at trying to get people to do what they say. You should absolutely refuse the sobriety tests, no matter what the officer says. They are designed for failure. The law of DWI is the loss of normal use. However, these tests do not test normal use. You don’t walk in a straight line, heel to toe, with your arms down by your side and then put your leg in the air for a certain amount of time, normally. They also give instructions so fast that people have trouble following them. Even if they’re not intoxicated, they can’t follow the instructions. You absolutely can and should politely refuse all of the field sobriety tests.

Horizontal Gaze Nystagmus

The Horizontal Gaze Nystagmus (or the “HGN” eye test), does not test whether a person can follow a stimulus while it is moved around. It is supposed to help detect whether the police officer can observe any involuntary jerking (or nystagmus) of the eye during the test. Most people think that the HGN is just a test to see if they can follow the finger of the police officer, or a flashlight with their eyes with whatever instrument they are using to conduct the test. However, this is not what they are testing with the HGN. What they are testing is the involuntary movements of the eyes, which can be exacerbated by the consumption of alcohol since alcohol causes dehydration. You should refuse these tests and all of the field sobriety tests.

This test is fraught with problems, and I frequently have seen it done incorrectly. It is almost always done wrong, at least in some fashion. Nystagmus is defined as an involuntary jerking of the eyes.  It is not something the person being tested will notice during the administration of the test.  Involuntary jerking of the eyes will become more noticeable as a person‘s BAC level rises. Nystagmus actually occurs naturally in our eyes all the time, and it even happens simply when the eye gazes to the side. However, at least in the theory, if a person is intoxicated and the substance is alcohol, the nystagmus is supposed to be more pronounced or exaggerated.

There are certain impairment indicators that police officers are trained to attempt to look for in each eye. I personally believe that in a proper laboratory setting with a trained eye doctor, or an ophthalmologist, it could have some validity. However, the reality is that this is a very precise, medical test for police officers to attempt, and they are also ONLY TRAINED AND INSTRUCTED BY OTHER POLICE OFFICERS!!! In the initial NHTSA SFST training course, only one-day (approximately 8 hours) is devoted to this test and they learn how to properly conduct and assess anything they are trying to detect in the eye. Police officers simply do not have the medical training or background to properly qualify a person to be a candidate for this type of examination. It is not their fault, they are not doctors and they are employed by the government and have to do what they are told and required by NHTSA.

As such, numerous medical experts do not believe much credence should be placed on the HGN test. At most, it is commonly agreed upon that may indicate some consumption of alcohol by the person – but…by that time they have already told the officer usually that have had something to drink! So what is the point? It is obvious that without the medical experience, training or background to be able to distinguish involuntary movements of the eye caused by medical conditions or other non-impairing facts as opposed to being intoxicated due to alcohol. It has been judicially recognized how there are 38 scientifically documented causes of Horizontal Gaze Nystagmus, aside from the consumption of alcohol. In addition, it has also been judicially recognized how there are over 47 different types of nystagmus, other than Horizontal Gaze Nystagmus, but the police officers are only trained to see and try and detect one.

Walk-And-Turn Test

The second roadside test that will be asked to be performed is the Walk-and-Turn (“WAT”) test. The WAT should be administered and interpreted in a standardized manner, i.e., the same way every time. Initially, the police officer will have an individual assume a strict position that is heel to toe, while also giving numerous other instructions in rapid-fire succession. After they give the instructions, which are a lot for anyone to remember, the police officer is should then attempt to demonstrate the test for the person to see and observe. They are also supposed to take into account footwear a person may be wearing, such as boots, sandals, or if an individual is wearing shoes with heels more than two inches high, and if so, the option should be given of being able to remove them.  The NHTSA Manual also specifically states how according to the original research, persons with back or leg problems, middle ear problems, as well as persons over the age of 65, have had difficulty performing this test. I can say from experience that very rarely if ever, do police officers take any of these factors into account.

One-Leg Stand

The third standardized field sobriety test is the One-Leg Stand (“OLS”).  The OLS test requires that a person should stand with one foot about six inches off the ground, count out loud by one-thousands until they are told to lower their foot, while the police officer times the individual for 30 seconds. Police officers are trained to try and observe for the OLS test: any swaying observed during the test, the ability to maintain balance (or hopping, the use of arms for balance, and whether the foot is put down during the test. Obviously, this is another test of physical performance where any number of factors could potentially interfere with the performance, all of which would possibly be due to items independent of intoxication. For instance, individuals who have feet, back, ankle, knee, hip injuries may have problems performing with optimate results for this test. Age, weight, and/or footwear could also be potential factors which interfere with the performance of this test. Similar to the Walk-and-Turn test, drivers with heels in excess of two inches should be given the option of removing their shoes.  Drivers over the age of 65 will have difficulty with this test. Another distinction is that drivers with back, leg, or middle ear problems, or who are overweight by 50 or more pounds may also have difficulty performing it.

These are standardized tests, which require the officer to administer and score them in a very specific way. Other non-standardized tests may be conducted, as well. Examples are counting or alphabet tests, touching finger-to-nose or standing with eyes closed and head tilted back. This is called the Romberg test. Lastly, some police agencies use a portable breath test device (PBT). Even though the PBT results are not admissible in court, the police officer may ask someone to blow into the PBT to determine whether or not there’s evidence of alcohol consumption.

Finally, a person pulled-over is not required to submit to any field sobriety testing. However, sometimes good performance on roadside tests can be the difference between winning a DWI or getting convicted.

What Are Some Problems With The Roadside SFST Tests?

If the SFSTs are not conducted according to the proper instructions, all independent observations obtained and used as evidence from an investigating officer will generally be inherently unreliable. Any results obtained also would be subject to a wide variety of interpretations by experts in the field, many of whom would disagree with certain conclusions made.  For instance, bloodshot eyes can be the result of many conditions and/or situations independent of intoxication, including simply being tired, having allergies, contact lens problems, being in a smoky environment, or it just possibly being a genetic condition. Often nervousness observed by the investigating police officer is directly attributed to intoxication, to the exclusion of any other possible cause for why a person may act a bit tense. The reality is that everyone gets nervous (myself included) when pulled even for a routine traffic stop. Nervousness obviously intensifies greatly when an individual feels they are under suspicion for a charge of DWI and realize they may be arrested and taken to jail.

Many scholarly studies have shown that the SFSTs do not accurately predict impairment in an overwhelming number of people. People who have certain medical conditions, especially those with physical infirmities, those who are overweight by a certain amount according to the BMI index, and also people who just may not be very coordinated, etc., would not be suitable and proper candidates to administer the SFSTs to, yet many police officers ignored these variables and still strictly rely on results regardless of the many different factors which may be involved.  It is obvious that every individual is different, and it is impossible to put everyone in the same box as others, and it cannot be emphasized enough how the SFSTs do not account for the different variances between individuals.

Possibly issues and factors could include specific medical history information, such as if a person has had serious injuries in the past such as knee replacements, etc. In addition, environmental conditions are also factors that may interfere with the testing environment. Including whether it was windy and/or if the weather was extreme, such as very cold weather. Such factors are specifically listed in the NHTSA manual as possible interference with test results and even advised in those circumstances to employ other methods, such as some of the “non-standardized” field sobriety tests.

Attorneys should articulate what any of these specific factors may be involved and specific to any given individual, offering all possible innocent explanations for intoxication symptoms observed and noted by the police officer during his investigation. Doing so effectively is asking a jury to gauge and assess a person due to their own specific particularities. Usually, it is wise to advocate for the jury to consider all factors involved, many of which are perhaps outside the purview of the NHTSA guidelines, and/or outside the scope of the lens used by the investigating police officer. Again, every individual cannot and should not be placed in the same box as everyone else.

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