Fighting Field Sobriety Tests in DWI Cases - Part One

As a DWI defense lawyer I am usually asked for advice on how to handle a DWI investigation if you are pulled over. Most people are surprised to learn that in Texas, you have the absolute right to refuse field sobriety tests. That is, you don’t have to perform these silly roadside-balancing tests, and you shouldn’t. You also should never agree to perform the “magic pen” or HGN test. Let’s talk about why you should refuse, and how we fight these junk science tests if you did perform them.

First, field sobriety tests are not real science. Real science is peer reviewed and published in scientific journals. The federal government developed Field sobriety tests for the explicit purpose of maximizing DWI convictions. They needed something that sounded “scientific” to trick juries into convicting anyone who drinks. And out of that pursuit the field sobriety tests were born.

The balancing tests are difficult to perform for many reasons, which have nothing to do with being “intoxicated”. Most people would struggle to walk on a balance beam, which is about the same size as the “imaginary line” in the walk and turn test. Most people struggle to stand on one leg for 30 seconds, not because they are drunk but because they have bad balance. You’d think that “scientists” would understand this, and study the reasons people struggle with these tests. Instead, they train officers than unless you have back, leg, or neck problem, you should be able to perform these difficult balancing tests with nearly 100% accuracy, unless you are drunk.

Only the government could argue something so amazingly stupid. Let’s look at a few real life examples. Let’s pretend you had the flu, and we asked you to perform balancing tests. How would you do? Not well probably. Did the government scientists look into how someone who is sick will perform on field sobriety tests? Nope. They never even considered it.

How about someone who has bad feet? It can be difficult to balance if you have foot pain, or a foot injury, or even a broken foot! Did the government investigate how these issues affect field sobriety tests? Nope. They train officers to assume that the only reason you would struggle with these balancing test is because you are drunk.

How about someone with ADHD, or PTSD? How well can they handle the pressure of public balancing tests with the threat of arrest at the end? The government chose to ignore mental health concerns when developing these “tests”.

The good news is, jurors are not as stupid as government scientists. They understand that there are many reason someone who is already nervous from being detained, and who is forced to stand on the side of a highway with cars flying by, may struggle to perform balancing tests in front of an officer who has already decided to arrest them. By the time the officer asks you to perform field balancing tests, he has almost always made up his mind that you are drunk, so don’t do them!.