Field Sobriety Tests

Police use two types of tests to help develop probable cause to arrest for DWI. There are Field Sobriety Tests (FSTS) and Standardized Field Sobriety Tests (SFSTS). Depending on how a citizen performs on these tests can dictate whether they are arrested for DWI or not. There are many areas of attack that Montgomery DWI defense Attorney, Doug Atkinson, utilizes for his clients.

Field Sobriety Tests (FSTS)
There are two types of tests used by police to develop probable cause to arrest and to use at trial to show signs of intoxication to the jury. Non standardized field sobriety tests are administered without set rules or regulations and are not graded on a specific set of clues. Examples of non standardized tests commonly given are the Rhomberg (hold head back, close eyes, and estimate 30 seconds), hand clap, finger touch, abc’s, and others. These tests have a place in certain investigations especially when a citizen does not qualify to take one or more of the three Standardized Field Sobriety Tests (SFSTS). For example, if a person has serious leg or knee injuries they may not qualify for the walk and turn or one leg stand tests. It may be better or more fair to offer them a finger count, hand clap, or abc’s test.

Standardized Field Sobriety Tests (SFSTS)
Standardized field sobriety tests were funded by NHTSA (National Highway Traffic Safety Administration) and the United States Department of Transportation to aid law enforcement in arresting and prosecuting DWI. Basically, SFSTS are designed to be given with a specific set of instructions and graded on a specific set of clues. If a person exhibits the required number of clues in addition to other evidence, police will arrest for DWI. There are three standardized field sobriety tests: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). These are the most common tests given by police to arrest people for DWI. There are many successful attacks to the FSTS and the SFSTS.

1. Attacking the HGN test.
   The National Highway and Safety Administration has set out rigorous guidelines that law enforcement officers must follow to correctly administer the HGN. HGN stands for Horizontal Gaze Nystagmus. In simple terms the officer is looking to see if a set number of clues are present which he/she will use to help determine probable cause to arrest for DWI. Nystagmus is simply an involuntary jerking of the eye which is naturally present in most people’s eyes. Nystagmus is generally not visible to the naked eye. When a person consumes alcohol the jerking or nystagmus is exaggerated and visible.
   
   The officer will look for a total of 6 clues (3 per eye) in scoring a HGN test. First, the officer will look to see if the person’s eyes track smoothly. Second, the officer will look to see if nystagmus is present prior to a 45 degree angle. Third, the law enforcement officer will look to see if he/she sees nystagmus at maximum deviation (jerking of the eye when held at the far outside edge of the eye). There are many attacks available for the HGN. The officer must follow the guidelines to administer the test. An example is that a person must be screened for equal pupil size and equal tracking. If a person is not screened correctly, or at all, the results should be suppressed. Another attack is available when officers commonly have a citizen face the flashing lights of the patrol car or passing traffic when administering the HGN. This may invalidate the test because it may cause nystagmus rather than alcohol. Further, the officer may hold the object too close or too far away. The officer may not do the correct number of passes nor take the correct amount of time to do the passes.
   
   Remember law enforcement officers are not ophthalmologists or optometrists and under effective cross examination Doug Atkinson has had the test results thrown out of court. By not allowing the jury to hear the HGN test results the prosecution has one less tool to use against you.
   
   
2. Attacking the One Leg Stand and Walk and Turn Tests.
   What law enforcement officers commonly forget is that the field sobriety tests are designed to test your abilities not theirs or someone else’s. Each individual is different and has distinct abilities. Doug Atkinson has successfully convinced jurors that the tests were not fairly applied to his clients. For example, some people are overweight and have difficulty standing on one leg or walking heel to toe. It often has nothing to do with alcohol consumption. Others may have head injuries from an automobile accident or inner ear problems causing them to have balance difficulties. Many people are not candidates for standardized field sobriety tests because of injuries including, but not limited to, inner ear, lower back, knee, ankle, and foot. Further, many people are not proper candidates under the standardized field sobriety testing protocol because they are over the allowable age. Police often do not properly qualify candidates to take the tests or give tests to people who do not qualify for the tests. Additionally, these tests are often “scored” by the officer on the roadside in a manner that is hypertechnical and unfair. Therefore, many innocent people are arrested because the officer chooses to “detect” minor or non-existent clues on the tests and make the arrest. Subjective unfair scoring of field sobriety tests is one of the biggest areas of overreaching and unjustified arrests of innocent people for DWI.
   
   
3. Attacking the refusal to conduct field sobriety tests.
   You are not required to give evidence against yourself. The fact that you refused to perform the field sobriety tests does not mean that you are intoxicated. There are many reasons people refuse such tests such as fear, nervousness, lack of coordination, weight, injuries, inner ear problems, or other medical problems. The fact that you refused to do the tests can be used in your favor.

Portable Breath Testing (PBT)

Portable breath testing (PBT) devices are becoming more common. A PBT is a handheld device used by police to get a quick reading of a person’s breath alcohol content. These devices are not certified as accurate by the State of Texas and their results are not admissible into evidence unlike an intoxilyzer 5000 which is usually given at the jail. The real purpose of a PBT is to let the officer know if a citizen is intoxicated because of alcohol or perhaps drugs. It also is a quick way to determine if there is alcohol in a person’s system at all. While the courts do not consider the PBT reliable enough to allow the BAC readout into evidence, the fact that it showed alcohol at all is admissible. Unfortunately, many police rely on the readout even though it is not a certified instrument, thereby increasing the probability that innocent people will be arrested. Doug Atkinson has effectively dealt with the PBT for his clients before and during trials.

Contact Attorney Douglas Atkinson to discuss your DWI case today!