Can I Refuse Field Sobriety Tests in Texas?

Yes, and you should.  There is no reason to give the State additional evidence against you.  Even the most sober person can still have problems performing these
“tests”, and if you show any “clues” of intoxication, you are simply penalized for these clues and not given any credit for doing well on the tests.  Although your refusal might be presented as evidence against you, it does not ensure a conviction – and could end up helping in the overall defense.  Less evidence weakens the State’s argument, and could result in reduced charges and even dismissal.

In Texas, there are 3 “standardized” field sobriety tests (SFSTs) used by law enforcement in DWI investigations.

• Horizontal Gaze Nystagmus (HGN) Test: This is the only “scientific” test of the 3, but it’s prone for attack, as the police are not eye doctors nor experts on nystagmus.  The test checks for “nystagmus” or an involuntary jerking of your eye by asking you to track a moving object (a stimulus or pen) for an extended period.  The test relies on nystagmus worsening with increased alcohol intake.  There is a total of 6 possible clues of intoxication with the HGN test, where officers examine both eyes and look for smooth eye pursuit (2 clues), nystagmus (2 clues), and onset of nystagmus (2 clues).  If law enforcement finds 4 or more clues across both eyes, they will allege this is a positive indicator of impairment.  Although alcohol can cause nystagmus, there are other legal and medical reasons that nystagmus can occur, and these are ways to defend and challenge your case in court.
• Walk-and-Turn (WAT) Test:  The Walk-and-Turn (WAT) test assesses physical ability and attention span.  It’s designed to simulate the multitasking needed for safe driving.  Participants take nine heel-to-toe steps, a turn using small steps, and return with nine more heel-to-toe steps.  Officers check for eight clues during this test, such as balance issues or incorrect steps. 2 or more clues may signal impairment.
• One-Leg Stand (OLS) Test:  In the One-Leg Stand (OLS) test, you stand on one foot, while holding your opposite leg 6 inches up.  You must count aloud by thousands for 30 seconds.  Signs of impairment include swaying, using arms for balance, hopping, and foot placement.  It’s like the WAT, as it tests your balance and focus together.  2 or more clues indicate potential impairment.

With over 20 years of experience, the Westbrook Law Firm has successfully defended all types of DWI cases, including those where our client performed SFSTs. The key is to review the video evidence and counter the State’s alleged “clues” with everything you did well on the tests.  In many cases, the positives outweigh the negatives, and this can help resolve the case.  To discuss your case, and the impact of any SFSTs you performed, please call the Westbrook Law Firm at 281-888-5581.