According to NHTSA (National Highway Traffic Safety Administration), the Standardized Field Sobriety Tests (SFST) are “a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest.”
Many times when I meet with a potential client, they tell me that they performed these tests and passed. They did not. Below is a description of each test and the correlating indicators of intoxication.
Horizontal Gaze Nystagmus
This is where the officer “checks your eyes.” The officer holds a stimulus, usually a pen, 12-15 inches from your eyes. He checks to ensure your pupil size is the same and that the eyes track evenly. He tells you to follow the stimulus with your eyes only. He then makes several passes across your line of vision. He is looking for an involuntary jerking of your eye muscle. You will likely fail this test and there is little that can be done to rebut the results. The test can be challenged if the officer does not administer it properly but typically your eyes cannot be seen on camera (an officer has the ability to zoom their camera in so that the jerking movement is caught on video but this is not done the vast majority of the time). The test results are based on the officer’s word that he witnessed the nystagmus.
Walk and Turn
The officer will ask you to place your left foot in front of your right foot, touching heel to toe. You must keep your hands by your side. You will be asked to take 9 heel to toe steps, walking a (typically) imaginary line. On your 9th step you will be asked to leave your lead foot planted and take a series of small steps in a circle and then walk 9 heel to toe steps back. You must keep your arms to your side during the performance of this test. Indications of intoxication are 1) stepping out of the starting position during the instructions (you must maintain the heel to toe position with your hands by your side for approximately 30 seconds while the officer demonstrates the test) 2) failing to touch heel to toe on any of the 18 steps 3) turning improperly 4) taking the wrong number of steps 5) stepping off the line 6) starting to walk before being told to do so 7) stopping during performance 8) using arms for balance (raising your arms more than 6 inches from your side).
One Leg Stand
The officer will ask you to stand with your feet together, lift the foot of your choosing at least 6 inches from the ground. Your foot must be parallel to the ground. You must look at your foot during the performance of the test. You must keep your arms by your side. The officer will then ask you to count out loud. Indications of intoxication are: 1) swaying 2) hopping 3)using your arms for balance (raising your arms more than 6 inches from your side) 4) putting your foot down before being told to stop. The officer will tell you stop once 30 seconds has passed.
This is not a standardized field sobriety test but many officers administer it. The officer will ask you to stand with your feet together and lean your head back with your eyes closed. He will then ask you to estimate 30 seconds in your head. Indications of intoxication are: 1) swaying from front to back, side to side, or in a circular movement. The officer also indicates how well you can estimate time.
There was a time when officers did not secure a warrant for your blood. But now, especially in Travis County, when securing a blood warrant is routine in a DWI arrest, the decision whether to perform the field sobriety tests can be complicated. Without blood, breath, or a person’s performance on field tests, the State was left with little to no evidence and securing a conviction was not easy. However, now if a person does not perform any tests and their blood results come back at a high blood alcohol content, attacking the blood results can be problematic. For example, if John is arrested for DWI and does not perform any tests and a warrant is issued for his blood, if the result is high there is no mitigating evidence. However, if John had performed the One Leg Stand and was able to maintain that position for 30 seconds or was able to walk a straight line and count there would be evidence to suggest that he had the normal use of his physical and mental faculties. It is always in your favor to refuse the horizontal gaze nystagmus (refuse to allow the officer to “check your eyes”) and always refuse to voluntarily give a sample of your breath or blood.