Getting pulled over on suspicion of drunk driving can cause stress and worry for many different reasons: fear of arrest, confusion about your rights, and, most of all, anxiety about the Field Sobriety test. However, while many people have heard of Field Sobriety tests, very few understand their rights and just how important their performance of this test can be.
One thing that many people do not know, and officers often do not mention, is that taking a Field Sobriety test is not mandatory. It is completely up to you whether or not you decide to take it. However, there are a few things you need to know before you decide:
Your words and actions are very important
Even if you agree to take the Field Sobriety test, your actions and words are still a strong determining factor in whether or not the officer will arrest you on DWI charges, so be smart about what you say. Do not try and talk yourself out of the situation, and more importantly, do not lie about whether or not you have been drinking. Telling the officer that you had a beer or two is not enough by itself to get you arrested. Also, it will help to explain the smell of alcohol that may be on your breath or in your car.
What many people do not understand is that the number of drinks you’ve had is not nearly as important as when you had those drinks. Studies have shown that healthy people metabolize alcohol at a fairly consistent rate. The average male will eliminate around one drink (or 15 ml) per hour. Therefore, if the officer asks how much you had to drink, five beers over the course of five hours sounds a less incriminating than just saying five beers.
You do not have to take a Field Sobriety test
Texas state law does not require that you perform any type of test if you are pulled over. However, you should know that if you refuse to take a Field Sobriety test, it is very likely that the officer who pulled you over will arrest you. With that being said, if you know that you can pass a Field Sobriety test, taking into account all the circumstances surrounding the request, it is recommended that attempt it. If you pass, the officer should let you continue on your way.
However, if you are completely unsure of what to do, consider responding to the officer by stating, “Officer, I would like to contact a lawyer before deciding whether or not to take these tests.” It is very unlikely that the officer will grant you this request, but at least you did not outright refuse to perform.
When someone refuses to take a Field Sobriety test, the argument that many prosecutors try to make is that this was because you knew you could not perform well due to your intoxication level. However, if you first asked to contact a lawyer, you could make the argument that you made a logical decision by exercising your normal mental capability in wanting legal advice.
You can be arrested even if you pass your Field Sobriety test
The only thing that an officer needs to arrest you is Probable Cause―the state of Texas states that Probable Cause exists when “facts and circumstances within (an) officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense.”
In short, DWI is an opinion crime, so if in the officers opinion, you did not pass the Field Sobriety tests, he or she can arrest you. The reason behind this could be something as simple as swaying while standing on one foot, something that people do all the time while sober.
The bottom line is that many police officers would rather be safe than sorry when it comes to drunk driving, regardless of how well you performed the Field Sobriety test. This is one of the most vital reasons, among many other, that it is important to hire an experienced DWI lawyer.
The following is what can happen when a law enforcement officer has a reason to suspect a driver is intoxicated. Some possible reasons are erratic driving, poor coordination, and/or the presence of the smell of alcohol.
About Field Sobriety Tests
The officer will administer one or more field sobriety tests (FSTs). Some common FSTs include having the driver:
- try to walk in a straight line, heel-to-toe.
- tip his or her head back with eyes closed and try to touch the tip of the nose with the index finger.
- stand on one foot.
- reciting all or part of the alphabet.
FSTs are better at determining the level of impairment than they are at estimating the driver’s BAC.
The (US) National Highway Traffic Safety Administration has scientifically determined that three FSTs are statistically reliable in detecting impaired drivers. These three “standardized” tests (SFSTs) are the “Walk and Turn” test, the “One-leg Stand” and “Horizontal Gaze Nystagmus” in which a law enforcement officer observes the discrete movements of a person’s eyes when tracking a stimulus across their field of vision.
If arrested, the driver is brought to the police station, and given one or more chemical tests: breath, urine, and/or blood. Breath test results are usually available immediately and are sometimes given before the actual arrest takes place; urine and blood samples are sent to a lab to determine the BAC. In some jurisdictions, refusing to take a breathalyzer test is an offense in itself, often creating an automatic assumption of guilt under the law.
Chemical tests are better at determining the driver’s BAC than they are at estimating the level of impairment, but their accuracy is disputed by some (see blood alcohol test assumptions). In any case, tests can only determine the BAC at the time the test is taken, which sometimes can be higher than when the vehicle was actually operated, in the case of a driver who drank a large volume immediately before driving.
If it is determined that the person is not legally intoxicated, they might be released without any charges. However, many jurisdictions have charges which don’t require a particular BAC, and tests for some drugs (such as GHB) will not show up in a test designed for alcohol.
Most of the time, the driver will either be kept in a holding cell (the “drunk tank”) until they are deemed sober enough to be released, or sent to jail to wait for their first court hearing (or until they can get bailed out).
Breath & Blood Testing FAQ
Blood and Breath testing is a very complicated aspect of DWI. It takes dedication and education to fully comprehend how these processes work. By understanding these testing procedures, we also know how inaccurate and unreliable they can be. The following are the most common questions we have been asked concerning these tests. The lawyer’s knowledge in this area of DWI litigation is often the difference between a conviction versus being found Not Guilty.
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How accurate are the chemical testing procedures?
Texas law provides that DWI suspects can have their alcohol concentration tested either by a Urine, Blood, or Breath Test. Urine testing is the least accurate and is rarely ever performed. In the scientific community, it is considered to be the least reliable method of testing.
Blood Testing is thought of by the majority of the scientific community to be the most reliable and accurate method of determining a person’s alcohol concentration. Although this is the least desirable method for the police due to its inconvenience, Blood Testing allows the arrested person to have his or her own expert re-test the blood sample for accuracy.
Breath Testing is the most convenient method for the police. However, the reliability and accuracy of Breath Testing is continually debated in the scientific community. In addition, breath samples are not preserved for a subsequent test to check the first test’s reliability and accuracy. Therefore, it is impossible to use subsequent testing to prove that the breath test was faulty, which could result in an innocent person being unjustly convicted. The State of Texas could save each breath sample for less than $2.00, but they choose not to do so!
In short, the police like to use the cheapest, most convenient, non-preserved, scientifically-debated chemical test when your freedom is on the line!
How is Breath Testing done?
The State of Texas uses a machine called the Intoxilyzer 5000, which is commonly referred to as the “breathalyzer.” The Intoxilyzer 5000 (I called it the Intoxicator or Intoxiliar because of its inaccuracies) costs about $7,500 and can last as long as 10 years. It works on the theory of Infrared Spectrosphopy, which is the absorption of infrared light. Different compounds will absorb different frequencies (wavelengths) of light. The machine has a light bulb positioned at one end of a cylinder. There are filter wheels in the cylinder, and on the other side of the filter wheels is a light receiver. Alcohol is supposed to absorb certain wavelengths of light and the machine is supposed to only detect wavelengths of light absorbed by alcohol.
The machine shines a light through the cylinder and the filter wheels will be turning. The filter wheels are designed to filter out potential contaminants. The breath sample enters the cylinder and passes through the filter wheel. The amount of light received at the other end of the cylinder is then recorded. The difference in the starting and ending amounts of light is the result. Interesting enough, the amount of light that is absorbed is not alcohol specific!
The amount of the breath sample and any reading of alcohol are very minute. The machine must make a multiplication conversion to an amount great enough for us to understand. The difference in light emitted and received is computed through a computer program in the machine to come up a value that can be compared to a .08. The conversion the machine makes on the differences in light would be the equivalent of taking the paper towel tube and increasing its size to that of a 55 gallon drum! Any error would then be exaggerated by that amount.
How reliable is the Breath Test?
There is much debate on the intoxicator; I mean the intoxiliar; I mean the intoxilyzer. Proponents of it state that the machine will only read light absorbed by alcohol, while opponents state the machine often misreads other commonly found substances in the breath as alcohol, thus giving an inaccurate high reading.
Neither DPS (Department of Public Safety) nor the manufacturer of the machine will allow anyone other than law enforcement to test the machine for its accuracy and reliability. It is generally understood that for a procedure to be accepted as accurate and reliable in science, it must be open and available for the scientific community to test and retest the procedure. This is not permitted with the intoxilyzer. What are they trying to hide?
The manufacturer does not warrant the intoxilyzer for any particular purpose. The machine is not warranted for accurate and reliable breath testing. Would you buy a car without a warranty?
The intoxilyzer is capable of preserving breath samples, but DPS purposefully fails to preserve these samples. The cost of preserving breath samples would be less than $2.00, and would allow arrested persons the opportunity to have their breath sample checked for accuracy. If found to be inaccurate, it could prevent an innocent person from being unjustly convicted. Further, re-testing of the breath sample could be done by a process know as gas chromatography, which is considered to be a more accurate and reliable method of testing breath samples for alcohol than the intoxilyzer. Why do they not preserve samples when your freedom is on the line?
The intoxilyzer also assumes that everyone who is tested has a blood/breath ratio of 2100/1. (i.e. 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath). If a person has a higher blood/breath ratio (e.g., 2400/1), this assumption has no effect on the test. A person with a lower blood/breath ratio, on the other hand, will be harmed because the intoxilyzer will erroneously read too high, resulting in a person who should test at.05 or.06 actually testing well above a.10. Furthermore, people with blood/breath ratios as low as 1100/1 have been documented by scientists. Do you want to take the chance that the intoxilyzer will harm you inadvertently, resulting in a conviction on your record?
A person that has a fever will have a higher Breath Test reading than an identical person without a fever. As a result, your body temperature can influence what the intoxilyzer reads, and your body temperature has little to do with the amount of alcohol you have or have not absorbed.
The experts continue to testify that the intoxilyzer was “functioning properly and capable of giving accurate results.” This sounds good, but what do they mean by capable? (If I buy a ticket, I too am capable of winning the lottery…)
The bottom line is that the intoxicator/intoxiliar/intoxilyzer is fast and cheap. Further, if a person passes a Breath Test, some police agencies will release the individual arrested and not file any charges. It is much easier to do this than file a DWI, request a blood test, and later have to explain why they arrested a person whose Blood Test came back under the legal limit.
This is not an all-inclusive list, but it is obvious that there are many problems with the machine.
Should I agree to take a chemical test? What happens if I don’t?
If you do not want to take the test, or are unsure whether to take it or not, ask the officer for permission to call a lawyer before you make your decision. They most likely will not give you the opportunity. I have only had 1 police officer who has ever honored this request.
Being that the officer will not give you this opportunity, the debate will begin. You have not refused to take the test. You need to be polite and courteous and just stand firm with your request to talk to a lawyer before deciding whether to, or not to, take a test. The officer will continue to tell you that you are not entitled to a lawyer at this point in time, and that the decision is yours and yours alone. Just keep requesting to speak to a lawyer. The officer will eventually tell you that if you do not agree to take the test, he will consider your actions to constitute a refusal. That is his job, but you will have set the stage for a jury trial. First of all, the prosecutor cannot argue that you refused to take the test because you knew you would fail. Secondly, the majority of jurors I have spoken with have sympathized with my clients who have made this request. Jurors have told me that if they were arrested, they would want the opportunity to talk with a lawyer too.
The reality is that even if you pass the chemical test, you could still be charged with DWI. You were arrested because the officer formed the opinion that you had lost the normal use of your physical faculties and/or mental faculties when he stopped you. At this point, the officer did not know what, if any, the alcohol level was in your body. Even if you pass the chemical test, the officer can still charge you with DWI. However, if you pass the test, you will not lose your driver’s license.
If you fail the test, you will be charged with DWI. Depending upon the outcome of the ALR (Administrative License Revocation) hearing, you may or may not lose your driver’s license. If you fail, the officer shall immediately take your driver’s license from you and issue you a temporary driving permit. It is important to request an ALR hearing.
If you refuse to take the chemical test, you will be charged with DWI. The officer already formed the opinion that you had lost the normal use of your physical faculties and/or mental faculties when he or she stopped you. If you refuse, the officer will immediately confiscate your driver’s license and issue you a temporary driving permit. Again, depending upon the outcome of the ALR (Administrative License Revocation) hearing, you may or may not lose your driver’s license.
Finally, most police officers I know would not take a Breath Test.
Can I choose to have a blood test rather than a Breath Test?
Texas law gives the officer the choice of which test to offer. If the officer asks you to take a Breath Test, and you say that you will only take a Blood Test and they do not give you the opportunity to take a Blood Test, they will count your Blood Test request as a Breath Test refusal. The officer will then confiscate your driver’s license, and your license will be subject to suspension. However, if this happens, the officer does not look fair in not giving you a Blood Test. Simply put, a Blood Test requires more work for the officer. (Why would the officer work harder if they do not have to?)
Section 724.019 of the Transportation Code states:
(a) A person who submits to the taking of a specimen of breath, blood, urine, or another bodily substance at the request or order of a peace officer may, on request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse selected by the person take for analysis an additional specimen of the person’s blood.
(b) The person shall be allowed a reasonable opportunity to contact a person specified by Subsection (a).
(c) A peace officer or law enforcement agency is not required to transport for testing a person who requests that a blood specimen be taken under this section.
(d) The failure or inability to obtain an additional specimen or analysis under this section does not preclude the admission of evidence relating to the analysis of the specimen taken at the request or order of the peace officer.
(e) A peace officer, another person acting for or on behalf of the state, or a law enforcement agency is not liable for damages arising from a person’s request to have a blood specimen taken.
May a police officer force me to take a Breath or Blood Test?
The police can never compel a Breath Test. An officer can compel a Blood Test only if there has been an accident where serious bodily injury, potential fatality or death has occurred, and the arrested person refused the test.
Does a person have the option not to take a Breath or Blood Test?
Yes. Even though Texas has the implied consent law, a person arrested for DWI may refuse the test requested.
This refusal can result in the following penalties:
- a 180-day suspension of your driving privilege if this is your first DWI arrest,
- a 2-year suspension of your driving privileges for a subsequent arrest within 10 years if you refused to submit to a test in your first arrest, and
- the prosecutor can admit your refusal into evidence in your DWI trial. The prosecutor will then argue that you refused the test because you knew you were intoxicated and that you would fail the test.
If you submit to a test and fail, your driving privileges can be suspended and the following penalties may occur:
- a 90-day suspension of your driving privilege if your driving record shows no prior alcohol related arrests,
- a 1-year suspension of your driving privilege if you have a prior conviction or suspension with the preceding 10 years, and
- the prosecutor can admit the results of the test into evidence at your DWI trial.
If you do not want to take a test, it is better to tell the officer that you want to talk to a lawyer before making the decision, as opposed to just refusing. Again, they most likely will not give you the opportunity to talk to a lawyer, but no test will be given.
Do they have any specific Field Sobriety Test training?
Any lawyer you hire should be able to answer your DWI questions and have completed both the NHTSA approved Field Sobriety Test Student Course to be a practitioner and the NHTSA approved Field Sobriety Test Instructors Course to be an Instructor. Valuable knowledge on how to properly cross examine an officer is gained when the lawyer is trained exactly how an officer has been. If a lawyer is not dedicated enough to obtain this intensive training, do you think they really have your best interest at heart when representing you?
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