May I Legally Refuse Field Sobriety Tests if Stopped for DWI?

By August 19, 2016DWI

Yes. You may legally refuse field sobriety tests in Texas. This article explains why you should consider refusing.

Field Sobriety Tests Can Be the Best Evidence for the State in a DWI Trial

Field Sobriety Test Fort WorthWhen a driver is stopped in Texas and the officer suspects that the driver may be intoxicated, the officer will typically run through a standard DWI roadside investigation. This investigation begins by simply observing the driver (bloodshot eyes, odor of alcohol) and asking some questions:

  • “Where are you coming from this evening?”
  • “Have you had anything to drink tonight?”
  • “Is that urine all over you pants?” (Just kidding, okay not kidding)

If the officer sees enough to warrant a further investigation, they will ask the driver to step out of the car.

“Let’s Make Sure that You’re Okay to Drive Tonight.”

Once the driver steps out of the car, the officer will typically position them in front of the squad car so that the dash cam can capture the interaction (to be used later at trial if needed). The officer will then explain that they are going to do some tests just to “make sure that you’re okay to drive.” Note: The officer WILL NOT ask permission to conduct the field sobriety tasks.  He will jump right in and hope that you just go along with it.  There are 3 standard tests that are explained in more detail on our DWI page.

The Field Sobriety Tests are Not Designed for You to Pass

The 3 standard tests are (1) the HGN test (Horizontal Gaze Nystagmus), which is the “light-in-the-eyes-test,” (2) the Walk the Line test, and (3) the One Leg Stand test. I don’t have enough time to go into the many problems with the tests, but to list a few:

  • The Eye Test requires the officer to conduct it perfectly and the camera can never capture the test so we are left with officer testimony alone;
  • The Walk the Line test is difficult even for sober people because it requires the person to take tiny heel to toe steps on an imaginary line in all weather conditions; and
  • The One Leg Stand test is also difficult for a sober person to maintain for 30 seconds and if the person puts their foot down at 27 seconds it is a strike against them.

Throughout the years, the tests have been debunked and challenged by experts as unreliable, but the courts are still allowing them as proof of intoxication (the loss of mental or physical faculties).  In short, the tests set you up to fail. So why would a driver who is suspected of DWI take the tests if they didn’t have to?

You DO NOT Have to Submit to Field Sobriety Tests in Texas

Even though the officer might act as if you must take the tests, you don’t. If he asks you to exit the vehicle then you must get out of the car. But as soon as he tries to start the HGN (eye test) on you, you can (and probably should) politely refuse to take the test. Take note of what I said…Politely Refuse. Do not be a jerk about it and go into a diatribe about how you read this blog and you know these test are no good and that you will not do them. Remember this is all being captured on audio and video; audio and video that will be exhibit #1 at a trial if it goes that far. Simply inform the officer that you do not wish to participate in the field sobriety tests.

Can I Still be Arrested if I Refuse to Perform the Field Sobriety Tests?

Yes you can (and probably will) be arrested if you refuse to perform the FSTs. If the officer already felt like he had enough evidence to administer the tests, then he will probably go ahead and arrest you for DWI if you refuse to take them. But hey, you were probably going to get arrested anyway. Now, however, there will be less evidence against you.  You have an absolute right not to give evidence against yourself.  This constitutional right applies equally in the DWI context.

Should I Take the Tests if I Haven’t Had that Much to Drink?

You are an adult, so it is really up to you, but our advice (from over 10 years of handling DWI cases) is NO. You should not perform the field sobriety tests. Your DWI case becomes tougher to defend if you look intoxicated on the video. Even if you haven’t had that much to drink, there are many reasons why you might appear intoxicated on the video:

  • Your footwear (high heels, flip flops, etc)
  • The wind is blowing hard
  • It is cold outside and you are shivering
  • You have an old injury that causes you to limp
  • You have bad balance (even on a good day)
  • You are extremely nervous

We have seen each of these scenarios on actual DWI videos.

Next Time, Please Take an Uber

We hope you will listen to our advice regarding DWI field sobriety tests. Better yet, we hope that you’ll just pay the $40 for an Uber or taxi from the bar or restaurant and avoid this altogether. But if you didn’t take our advice and you didn’t call and Uber, call us and we’ll be happy to be your advocates.

*This article did not discuss whether you may legally refuse a Breath Test or a Blood Test. We’ve written on that many times and the answer is YES. You may refuse breath and blood tests UNLESS the officer has a warrant for your blood. If they have a warrant, you may not refuse.

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