FJ Journal No. 3 - Driving While Intoxicated - Part 2: DWI Field Investigation
5/13/2024
Welcome back to the FJ Journal! In this article we will begin to get into the finer details of a formal DWI investigation and how that can affect you and your case. The prosecution of a DWI can succeed or fail based entirely on the investigation conducted by the officer, as such this discussion of the investigation will likely take up multiple articles, in order to cover the topic in adequate detail. As always, if you or someone you know seeks legal advice, please contact our office and schedule a free consultation.
A thorough DWI investigation can be generally divided, in my opinion, into four parts: 1) the stop, 2) the initial interview, 3) the administration of Standardized Field Sobriety Tests (SFSTs), and finally 4) further testing of breath or blood. In Parts 1 and 1.5, we covered the stop, so in this part I will attempt to cover parts 2 and 3. Part 4 of the investigation is often not necessary for a prosecutor to be able to secure a conviction, but it does involve its own set of complexities that are worth discussing in a separate article.
These days, almost everyone is familiar with the infamous SFSTs, and they are likely the most significant source of evidence in all DWI investigations. However, a surprising amount of incriminating information can be obtained from the person stopped by the police during the initial interview, before the tests are even administered. While the officers gather IDs and insurance information, they will often sneak in questions such as “Where are you coming from? Did have anything to drink? Is that alcohol/marijuana that I smell?” It is easy for someone to slip during these questions and say something that they believe is harmless, but the officer will take it as an indication that the person may be intoxicated. It should go without saying that the safest option in these situations is to give the officer your identifying information, but refuse to answer any other questions and call us right away!
Once an officer gets enough information during the initial conversation to believe that someone is under the influence, they will ask the person if they are willing to submit to the Standardized Field Sobriety Tests, or SFSTs. You will be relieved to hear that, in Texas, participation in the SFSTs is not mandatory! This means that there is no legal penalty for refusing to participate for any reason. However, this will not stop officers from threatening citizens with arrest and jail time if they refuse to participate. Unfortunately, this is lawful, as the refusal to participate in the SFSTs can provide probable cause to arrest someone.[1] Do not let yourself be intimidated by these threats.
Assuming you, like most people, did not feel comfortable refusing to perform the tests and agreed to participate, let’s take closer look at the three SFSTs[2]:
·HGN: The Horizontal Gaze Nystagmus (HGN) test is typically the first test administered by officers. It consists of the officer holding up an object (i.e. a pen) or a light, and moving it slowly from side to side while the subject stands still and attempt to follow the object with only their eyes. Contrary to popular belief, officers are not actually testing your ability to follow the object with your eyes, but are instead looking for a subtle shaking in your eyes that add up to 6 “clues”. Unfortunately, because this shaking is involuntary, it is very difficult to beat this test.[3] However, there may be other factors that could affect the test, but that is a question better left to an attorney familiar with your case.
·Walk and Turn: The walk and turn (WAT) test consists of the subject taking 9 heel-to-toe steps, then taking a series of small steps with one foot to turn around while keeping the other foot on the ground, then taking 9 steps back. During this process, the officers administering the WAT test will be on the lookout for 8 different “clues”. Due to the large number of clues, ensuring that the WAT test is administered accurately and honestly by the officers often requires attorneys to examine the footage of the test multiple times and from multiple angles
·One Leg Stand: The one-leg stand (OLS) test consists of the subject holding one foot 6 inches above and parallel to the ground, while counting out loud. Officers administering the OLS will be searching for 4 “clues”.
To be qualified to administer these tests, officers are required to undergo specialized training involving both theory and hands-on practice in controlled environments. Additionally, officers are required to renew these qualifications. However, as you may have guessed from reading the descriptions above, with so many moving parts in the SFST battery, it is possible for even experienced DWI officers to make mistakes in the administration of the tests or may not count the "clues” accurately. Similarly, determining the accuracy and validity of these tests requires an experienced and watchful eye which even some attorneys have not developed. As a former chief prosecutor, I carefully studied these tests and participated in training police recruits, enhancing my ability to identify significant discrepancies.
Finally, a common misconception regarding the notorious SFSTs is that you can pass or fail them. There is no such thing: as mentioned in the descriptions above, the officers are trained to look for certain “clues”, and there is no pre-determined number of clues at which the officer will conclude that a person is intoxicated. Even if you are stone-cold sober, if you do not feel confident in your ability to perform the tests, contact us immediately.
That will conclude FJ Journal No. 3. The next article will be the last in our DWI series for now, and it will discuss the testing of breath and blood samples. See you then!
Arturo J. Reyes
Attorney and Counselor at Law
[1] Maxwell v. State, 253 S.W.3d 309 (Tex. App. – Fort Worth 2008, pet. ref’d).
[2] “Development of a Standardized Field Sobriety Test,” NHTSA, Nov. 2008.
[3] “Colorado Validation Study of the SFST Battery,” Marcelline Burns & Ellen Anderson (Nov. 1995)