In Texas, Driving While Intoxicated, or DWI, (also known as DUI, or Driving Under the Influence, in other states) is a serious offense. Regardless of whether you are stopped by a local Police Officer in Houston or San Antonio, or by a County Sheriff in Dallas or Austin or a State Trooper in Fort Worth or El Paso, or one of the thousands of law enforcement officer in any of Texas’ twelve hundred-plus towns, your Field Sobriety Test matters. As a matter of fact, one the District Attorney’s key pieces of evidence when presenting the case against you in court is the same evidence the arresting officer used to assess your sobriety.
The very name, Field Sobriety Test, hints at the many difficulties inherent in it: this assessment is done “in the field,” wherever the officer pulls you over. Even Standardized Tests given by doctors in laboratories can be subject to challenge. So one can just imagine the potential difficulties involved in administering a test roadside in varying conditions.
Before discussing these challenges, first we will review the serious punishments associated with for DWI convictions in Texas (as outlined in the Texas Department of Public Safety’s website at www.txdps.state.tx.us). Texas enacted the Administrative License Revocation (ALR) Program on January 1, 1995 to “suspend the driver licenses of dangerous drivers in a swift and sure manner.” The ALR sets forth two different sets of penalties, based on whether or not the suspect willingly provided the specimen (blood, urine or breath) requested by officers to determine the level of intoxication.
- First DWI Conviction**:
- Refusal to provide specimen: An automatic driver’s license suspension for one hundred eighty days.
- Provided a specimen with an alcohol concentration of 0.08 or greater: An automatic driver’s license suspension for ninety days.
- Second and Subsequent DWI Convictions (if prior DWI conviction was in last ten years):
- Refusal to provide specimen: An automatic driver’s license suspension of two years.
- Provided a specimen with an alcohol concentration of 0.08 or greater: An automatic driver’s license suspension for one year.
In addition to the above driver’s license suspensions, drivers who receive a DWI conviction for offenses that occur on or after September 1, 2003 are required to pay an annual surcharge for three years from the date of conviction.
- First DWI Conviction: – $1,000 annual surcharge for three years
- Second and Subsequent DWI Convictions - $1,500 annual surcharge for three years
- DWI with Blood Alcohol Content .16 or greater – $2,000 annual surcharge for three years
Each of these above surcharges collected will be remitted to the Texas State Comptroller’s office. The Trauma Center and Texas General Revenue Funds receive ninety-nine percent of the revenue collected, while DPS receives the remaining one percent for the administration of the Driver Responsibility Program.
**NOTE: In some states, the terms DWI and DUI may be synonymous. In Texas, this is not the case. DWI refers to drivers age twenty-one and older arrested for driving while intoxicated. When minors (drivers under the age of twenty-one) commit the same offense, Texas refers to it as DUI. The penalties listed above are for DWIs committed by adults; the penalties for minors are identical for those refusing to provide a specimen, and slightly less stringent for those providing a specimen with an alcohol concentration of 0.08 or greater.
If you did not see the importance of consulting with an experienced DWI attorney before reading these penalties, hopefully you do now. If you have been arrested for DWI in Texas, how can you afford not to hire a DWI attorney? A DWI conviction means thousands of dollars in fines over the next three years plus loss of your license. Rest assured that the State of Texas will have plenty of attorneys at its disposal while preparing its case against you. Shouldn’t you have a DWI attorney preparing your case?
What Happens Before an Officer Makes a DWI Arrest
In all likelihood, a local Police Officer, County Sheriff or Texas state trooper pulled you over because you were driving unsafely. Perhaps you were you speeding or changing lanes erratically. Perhaps your vehicle was not completely road ready, missing a valid inspection or registration sticker. Perhaps an important a safety feature of your vehicle, like your lights or turn signals, was malfunctioning or not being used properly. Or you could have been part of a routine traffic stop, during which police stop all traffic moving thru a checkpoint.
Once pulled over, if the officer suspected that alcohol or drugs (either prescription or illegal) might have impaired your driving, he probably gave you a Field Sobriety Test. This psychophysical test measures your basic motor and cognitive skills to determine if they have been compromised, either by alcohol or another substance.
From watching movies or television shows, most people know what happens during a Field Sobriety Test. Many states, though, do not have clear, written guidelines mandating that every Field Sobriety Test be administered in exactly the same fashion under controlled conditions. Texas is one of those states lacking specific controls for the Field Sobriety Test. In fact, here is the treatment of the subject in the Texas Department of Public Safety’s Web site in the
After contact with the individual is initiated, the officer develops probable cause to arrest the person for DWI. Specifically, if the officer has reason to believe that the driver is impaired, a set of field sobriety tests may be administered. If the driver performs poorly, the driver is arrested for DWI and transported to the police station.
Since Texas DPS doesn’t offer clear-cut guidelines for officers administering the test that will determine whether or not you are arrested for DWI, we will review the guidelines established by United States National Highway Traffic Safety Administration (NHTSA). Just remember that a test given by a police officer in Arlington can be very different from a test given by a state trooper in Corpus Christi or from a test given by a county sheriff in Plano.
In any city, the officer may ask the suspect to complete any or all of these three tests:
- Horizontal Gaze Nystagmus (HGN): HGN refers to a normal, involuntary jerking of the eyes when looking sharply to side or the other. Under the influence of alcohol or any drug, HGN can occur when the subject is looking straight ahead or just slightly to the side. During this test, the officer will ask the suspect to visually track a slow moving object (such as the officer’s pen or finger) and while watching for jerking of the eyeballs. Questions about the HGN test are compelling:
- Results of this test are highly subjective and almost never video taped (if the officer’s squad car has videotaping capabilities, it will not be able to zoom in on the subjects eyes an the object being tracked).
- Officers frequently administer this test at night, which makes close examination of the suspect’s eyes in poorly lit conditions difficult.
- Walk-and-Turn (WAT): During the WAT, the officer asks the suspect to walk nine paces, heel-to-toe, along an imaginary line. Then the suspect pivots on one foot and repeats the test in the opposite direction. The officer watches for eight possible indicators of alcohol and/or drug influence:
- taking an incorrect number of steps
- making an improper turn
- not touching heel-to-toe,
- stepping off the line,
- failure to keep balance during the instructions,
- starting before the instructions are completed,
- stopping while walking to steady oneself, or
- using arms to balance.
Several factors could adversely influence the outcome of this test:
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- The surface of the suspect’s shoes: a suspect’s rubber soles can “grip” the pavement during a turn, also causing him to lose falter. Conversely, slick leather soles can cause the suspect to turn too quickly, causing him to lose balance.
- Weather conditions can make balance difficult. For example, roadside pavement being slick from rain or snow or oil can create challenges to balance while turning.
- High heels, whether on a woman’s shoe or a man’s boot, can make heel-to-toe walking difficult in any circumstance.
- A suspect’s chronic leg or back problems may make balance during a turn difficult, as can obesity.
- One-Leg Stand (OLS). During the OLS, the officer asks the suspect to stand with one foot approximately six inches off the ground and count aloud from one thousand (one thousand one, one thousand two, etc.) until told to stop, usually for about thirty seconds. The officer watches for these four indicators of impairment:
- swaying while standing on one leg,
- excessive use of arms to balance,
- hopping to maintain balance,
- and lowering the foot before instructed to do so.
As with other elements of the Field Sobriety Test, important complications can arise during the administration of the OLS:
- For a suspect not fluent in English, counting aloud may be difficult under ideal circumstances, especially counting in the thousands.
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- Suspects not guilty of DWI can be extremely jittery when confronted by police officers. Their anxiety may cause them to perform poorly on any type of test administered by an officer.
As familiar as most Texans think they are with the Field Sobriety Test, many are ignorant of some basic facts:
- As noted above from the Texas Department of Public Safety website, once the officer observes you driving unsafely, he may begin to form an opinion about your sobriety before he even asks you for your license and proof of insurance. Although unsafe driving is never tolerable, it may have been caused something other than impairment by alcohol or drugs, like:
- A driver’s conversation, either with passengers or via a cell phone;
- A driver being focused on something inside the vehicle, like the music or temperature controls, a map or children in the backseat.
So you may have just been a poor driver prior to being pulled over, not a driver guilty of DWI.
- Field Sobriety Tests are voluntary. No Texan can be forced to participate in one, although officers rarely advise drivers of this.
- Any observations an officer makes before pulling you over, while interacting with you or during the Field Sobriety Test can be admitted in court, even though the officer does not read you your Miranda rights until arresting you.
- For any Texas driver who has difficulty hearing, due to advanced age or a medical condition, complying with an officer’s verbal instructions on the roadside of a busy, noisy highway can be difficult.
- Even something as simple as leaning on or pulling against your car door while exiting the vehicle can be interpreted by the officer as proof of impairment. But what if you needed assistance getting out of the car due to chronic back pain or sore muscles from a strenuous workout the day before?
This is just a brief discussion of why a Field Sobriety Test may not always be an accurate assessment of your sobriety. In a court of law, it will be your word against the arresting officer’s. Make an informed decision by contacting a Texas attorney experienced in Texas DWI law today. Your future could depend on it.
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