DWI Field Sobriety Tests

The 3 Standardized Field Sobriety Tests are:

• Horizontal Gaze Nystagmus (HGN) (Pen Eye Test)
• Walk and Turn (WAT) (Walking a straight line)
• One Leg Stand (OLS) (Balancing on one foot for 30 seconds)

These sobriety tests are standardized by NHTSA (National Highway Traffic Safety Administration).  All officers in Texas are trained with a version of the “NHTSA” manual.  The manual talks about these 3 tests, and the studies that were done on these three tests that make them think they are accurate enough to use to determine if someone is intoxicated.

The manual tells you the exact instructions that should be given, the exact demonstration that should be given, and it tells you what the clues of intoxication are.  I was fortunate enough to be certified to administer the standard field sobriety tests.  This gave me a deeper understanding of DWI law, what officers are looking for, and gives me an upper hand when watching videos of officers that are conducting SFSTs on my clients.

HORIZONTAL GAZE NYSTAGMUS – HGN TEST (typically the first test given)

Most of my clients think that when the officers are administering this sobriety test that they are looking at whether you can follow the pen (or their finger, or the light).  They will generally tell me, “Oh, I am not worried about that test.  I passed that one.  I followed the pen perfectly.”

But the officers are not looking to see if you can follow the pen.  They are looking for nystagmus.  Nystagmus is an involuntary jerking of the eyes.  Basically, when you are intoxicated your eyes will start twitching quickly as you move your eyes back and worth.  You can not feel your eyes twitching, and you cannot control it.  So this could be happening, and you would have no clue.  So while my clients tell me they passed this test, the police report claims that they failed miserably.

If I was ever pulled over, I would never take this sobriety test (I would never take any of them, but that is another story).  The reason I would never take this test is we cannot see the eyes jerking ourselves when we review the recorded footage of this test.  We will be able to see how the officer administered the test, and if he did it correctly, but we wont be able to see your eyes.

The HGN has 6 clues (3 in each eye).  A clue is basically something that tends to show you may be intoxicated according to the officers training.  If you get 4 clues on this test it is considered to be a fail.

The clues for HGN are:

1. Lack of Smoot Pursuit – do your eyes not move back and forth smoothly during the test?
2. Distinct Nystagmus at Maximum Deviation – when your eye is looking to the side as far as possible for at least 4 seconds, does it jerk considerably?
3. Onset of Nystagmus Prior to 45 degrees – as you move your eye slowly in one direction does the jerking start before 45 degrees?

As I stated prior, this is typically recorded and we always watch to make sure that the cop does it right.  Typically they don’t, and that gives us at least something to work with in trial.

Walk and Turn Test – (Typically the 2^nd test given)

The Walk and Turn test is what most people refer to as the “walking the line” test.  Most people think they are just seeing if I can walk a line straight.  But that’s not the case.  The officers are trained to look for 8 specific things (clues), and if you miss at least 2 you fail.

This test has an instruction portion where the officer needs to recite specific instructions and demonstrate.  Then it has the walking portion where you perform the sobriety test.

During instruction they tell you to put your left foot on the line and put your right foot in front of it touching heel to toe (if you ever move from this position it is already 1 clue against you).  They tell you to put your arms by your side and listen to rest of the intructions.

The officer tells the individual not to start until instructed to.  They tell them that they will be taking 9 steps, touching heel to toe, turn taking a small series of steps, and take 9 steps back touching heel to toe once again.  They are instructed to count the steps out loud and to watch their feet.

The 8 clues of this test are:

1. Can’t Balance During Instructions
2. Starts Too Soon
3. Stops While Walking
4. Misses Heel to Toe
5. Steps Off Line
6. Uses Arms For Balance
7. Improper Turn
8. Wrong Number Of Steps

The good thing about this sobriety test is that we can see how you performed because almost all DWI stops are recorded.  So if the officer does the instructions or demonstration wrong, or if the officer exaggerates on how “badly” you performed we will be able to call them out on it and put them in an embarrassing position at trial.

One Leg Stand – (Typically the last test given)

The One Leg Stand test is what most people refer to as the “balancing on one leg” test.  Most people think you just need to keep your foot in the air at all costs, but that is not the case.  The officers are trained to look for 4 specific things (clues), and if you miss at least 2 you fail.

The test has the instruction portion where the officer needs to recite specific instructions and demonstrate.  This it has the test portion where you actually perform the sobriety test.

The officer typically tells the person to put their feet together, arms at the side, and to listen to the instructions.  The person is then instructed to raise a leg of their choice 6 inches off of the ground, with the toe pointed out, keeping the leg straight.  The officer will also instruct them to look at their foot and count out loud in the following manner, “One Thousand One, One Thousand Two, One Thousand Three”, etc, until told to stop.  The person is never told this, but the test lasts roughly 30 seconds.

The 4 Clues of this Test are:

1. Swaying
2. Using Arms to Balance
3. Hopping
4. Putting Foot Down

Again, the good thing about this sobriety test is we can see how you performed and how the officer administered the test.  Again, if the officer chooses to stretch the truth, he is going to have problems in front of a jury when he is called out on his lies.

Other Sobriety Tests

The following are not standardized, but are often used by officers as additional aids in their evaluation of people they stop who they feel might be intoxicated.

Rhomberg Test – ask you to tilt your head back, close your eyes, estimate 30 seconds.  Typically, anything within 5 seconds is passing.  The officer will also note if you are swaying while standing

Alphabet Test – ask you to recite the alphabet from one point to another, example, “Please recite the alphabet from letter E to Letter U”

Finger to Nose Test – ask you to touch your finger to your nose as they instruct you on which hand to use, example, “Left, Right, Right, Left, Left, Left”

Counting Test – ask you to count backwards from one number to another, example, “Please count backwards from 88 to 67”.

These tests are not standardized, and obviously we always attack that at trial.  But if you do great they can be helpful, and if you do amazingly bad, it can hurt.  We evaluate each case individually and prepare the best strategy.

Should I Even Do The Tests?

No.  You shouldn’t, these sobriety tests are hard and in my opinion, are designed to make you fail.  I mean who in the world “normally” walks in a straight line, touching heel to toe, looking at their foot, and not using their arms for balance?  Who balances on one leg without being able to use their arms for balance?  Anytime you see a professional tight rope walker, what are they using to help them?  A long poll that they hold perpendicular to themselves.  They sure as heck don’t have their hands by their side because that makes it HARDER.

Unfortunately, by the time you read this, you have likely already been arrested.  And that is ok, we can still fight these sobriety tests.  But in the small chance that you are reading this and have never been in that situation, then don’t do the tests.

What should you do?  Be respectful (remember you are being recorded!) and politely say you would like an attorney and would not like to do any tests or answer any questions.

I don’t know what the exact statistics are, but I would strongly assume that most people who are asked to perform these tests are going to jail no matter what.  So why would you give them free evidence?  Especially evidence that could be FALSE, because these tests are designed to MAKE SOBER PEOPLE FAIL.

With that said, don’t say, “I couldn’t do that test sober”.  That makes it sound like you are drunk…got it?  Ok, good.