"I thought I passed the tests": Myths and Facts about Standardized Field Sobriety Tests

“I thought I passed the tests”:  Some myths and some facts about the Standardized Field Sobriety Tests


I’m going to do a quick little “fact v fiction” on the Standardized Field Sobriety Tests here.


1.        These are not pass/fail tests. These tests are not graded on an objective “pass/fail” scale.  The tests are conducted and the officer looks for “clues” on the tests.  There’s no set number of clues that result in a DWI arrest. You could show one clue on each test (which isn’t a lot) and still get arrested for DWI. 


2.       There are three standardized field sobriety tests.  These are:


a.       The Horizontal Gaze Nystagmus – your eyes will be tracked following a stimulus to see if there’s nystagmus (an involuntary jerking of the eye.

b.       The Walk and Turn – you are asked to take nine “heel to toe” steps in a straight line with one foot in front of the other and turn with a series of small steps.

c.       One Leg Stand – you will be asked to hold one foot up at an angle and look at it and count 30 seconds.


The “Rohmberg” test, in which you look at the sky and try to stay steady, is not a standardized test but it is still used.  It is not correlated with intoxication.  I wonder at the legality of using it. Also, “ABCs” or “finger to nose” are not standardized tests.


3.       You can refuse the standardized field sobriety tests.  However, you may be arrested anyway as your refusal may be considered a sign of intoxication.


4.       The SFSTs are not correlated to an actual Blood Alcohol Concentration.  No officer should ever testify that a certain number of clues means you had a BAC of X (a .08 or higher, for example).


5.       These are divided attention tests.  They are meant to be hard.  They are meant to utilize a lot of different skills at the same time.  You will be tested on your mental faculties (ability to listen to and do the test as instructed, and remember the instructions), and many physical faculties (balance, for example).


6.       Saying “I can’t do that sober” is a VERY BAD IDEA!!! (You are essentially saying you aren’t sober when you say that and it doesn’t make a good argument for not doing the tests or doing badly).



I thinkyou should have a plan if you get stopped and you have a few drinks in you (or drugs).  Figure out before hand if you are going to do the SFSTs.  You may still get arrested if you don’t do them, but the officer may not have enough probable cause to get a warrant for your blood.  And:  don’t get so drunk and then drive that you don’t have the mental acuity to follow your plan.

No Refusal Weekends: What you should know

“No Refusal Weekends”:  What You Need to Know


Austin Police Department has declared every weekend from now until September “No Refusal Weekends”.  I am going to explain what this is here.


A “No Refusal” Weekend or time period is a time in which police officers will seek warrants for blood draws for every single person who refuses to provide a breath specimen when arrested for DWI or intoxication related offenses.  When arrested for DWI, each person is given the option of providing a legal breath specimen (on an Intoxilyzer at the jail, not at the side of the road) to be tested for alcohol.  No Refusal means if you do not agree to do this (it’s impossible to force a good breath specimen – you can’t forcibly make someone exhale, at least not legally) then the police officer will get a warrant for your blood.


This happens within an hour or so.  There is 24 hour magistration at the jail, so a judge is always available to sign blood search warrants at any time of day. 


It is possible that a judge could find there is not probable cause for an arrest and will not sign a blood search warrant, but this is rare. Don’t count on it. 


If you resist the blood draw after a warrant is signed, it will be forcibly taken from you.  The blood draw is done by a phlebotomist or some qualified tech, not by the police officer or a corrections officer.  It is taken to the central evidence room if it’s an APD case and then taken to the lab and tested.  This usually takes 4-6 months.


Now, most people want to know if they “should” blow or not.  That is a very complicated question and there’s not really a clear answer.  What you should know for Travis County is that cooperation IS taken into consideration by the prosecution, especially if your blood alcohol level is found to be relatively low.  On a “No Refusal” Weekend, it may be worth it to cooperate because they are going to get a sample either way.  If you are intoxicated on another substance other than alcohol, you maybe should blow to keep them from taking your blood and running it for illicit drugs, but blowing zeros into the Intoxilyzer may or may not stop the officer from getting a blood specimen if he suspects an illicit substance. 


APD is the only jurisdiction in Travis County that does No Refusal.  Travis County Sheriff and the smaller PDs (Bee Cave, Sunset Valley, etc) do not have a similar program.



Alcohol Monitoring: How it helps; how it hurts

Alcohol monitoring: what it means to your freedom and how it can help your case


Alcohol monitoring devices are very commonly imposed by judges in Travis County and throughout Texas when an offense involves alcohol.  Driving while intoxicated, intoxication assault, intoxication manslaughter, and aggravated assault with a vehicle are all the kinds of offenses in which a defendant may be required to comply with alcohol monitoring. 


Alcohol monitoring is semi-controversial.  People opposed to court overreach say that it is being abused by judges and used to restrict Defendants unneccesarily.  Defendants may be very inconvenienced by alcohol monitoring in that it not only limits the ability to get intoxicated on alcohol but it is usually used by courts to force Defendants to abstain from alcohol completely.  Is it necessary for Defendants accused of an alcohol related crime to quit drinking completely?  Maybe not, in that Defendants without serious alcohol dependency may be accused of an alcohol offense that is an abberation, a one time mistake --- or that Defendant may be completely innocent.  An accusation of DWI may not mean that the Defendant has an alcohol abuse problem but it is politically unpopular to argue against light consequences for people accused of alcohol related offenses.


On the other hand, with the realization that Defendants on alcohol monitoring devices are almost always expected to completely abstain from alcohol, if Defendants are not able to abstain even with the realization that they face jail if they do not, that may be evidence of an alcohol dependency.  If you cannot abstain even if you’ve been ordered to do so by a court, it may be time to think about seeking professional help and support for chemical dependency. 


Alcohol monitoring devices usually come in three forms:


  1. Ignition Interlock Device:  This is a device installed on a car that prevents it from being started by a person who registers a blood alcohol level over the legal limit in his or her breath.  It must be blown into in order for the car to start.  It usually has a camera and takes a picture of the person blowing into the device so that the Defendant cannot use someone else to start the car.  The device can sense any amount of alcohol in the breath and there will usually be consequences if the agency monitoring the device reports to the court that there was an “alcohol positive” – any alcohol detected – on the device.


  1. Portable Alcohol Monitor:  This is a device ordered when either the Defendant does not have a vehicle, shares a vehicle, or has not been compliant with the Ignition Interlock.  It is blown into several times a day by the Defendant to detect alcohol.  Again, usually the court will administer consequences if any alcohol is detected, even if it is a non intoxicating level.  It also has a camera so that the agency monitoring the device can ensure that only the Defendant is blowing into the device.


  1. SCRAM: This is a device worn on the ankle by the Defendant.  It is the highest level of alcohol monitoring and can detect the slightest amount of alcohol in the sweat of the Defendant.  It is ordered when the Defendant is absolutely not supposed to drink.  Lots of courts use this as the highest consequence when the Defendant is not compliant with anything else or when the Defendant has many alcohol accusations, such as multiple DWI accusations or an intoxication manslaughter accusation.


These devices can be ordered pre-trial as a condition of bond.  In Travis County, Pretrial Services will assign an officer to monitor the data generated by the device who will report to the court if there is an “alcohol positive” on the device.  If it is ordered pre-trial, the judge may revoke the Defendant’s bond if there is a report of alcohol detected by the device. In order to get back out of jail, the court may order a step up of the device – PAM instead of IID, or SCRAM instead of PAM to make the Defendant “understand” that s/he cannot drink.


Complying with alcohol monitoring pretrial, while your case is pending, may help with the resolution of your case.  The prosecution may be more open to a beneficial deal in your case if you can show them that you have been compliant with alochol monitoring for several months following an alcohol related accusation. 


These devices can also be ordered as a condition of probation.  If that is the case, the probation officer will monitor the device and the Probationer may be up for revocation if there is an “alcohol positive”.


These devices cost money.  For Defendants and Probationers who cannot afford the device, Travis County has some funding to pay for devices to “help” Defendants with “recovery”.


Lastly, there are times when these devices malfunction or give false positives because of an issue with alcohol in some food or medications.  Your attorney should get data from the manufacturer if you claim the device is malfunctioning, and there are some objective sources out there that can explain false positives.  However, these are incredibly hard sells to judges.  Do not be surprised if your judge is not completely convinced that your toothpaste set off your device. 


I think these devices are being imposed at an unnecessarily high rate, but I don’t see that changing.  If you have been ordered to use one of these devices, you will have to earn being released from it by having several months of no positives on the device.  If you cannot stop drinking alcohol even when jail may be a consequence if you do not, I think you need to do some self-examination and hard thinking about the role alcohol plays in your life and if it is doing more harm than good.  There are programs out there that can help you maintain sobriety and recover from alcohol addiction and abuse, and you may be surprised at how happy you can be living a sober life. 



What is an Obstruction of a Passageway?

What is a DWI reduction and what is “obstruction of a passageway?”


In this article, I will attempt to explain what it means when we defense lawyers tell our clients their DWI charges will be “reduced” and what happens when a reduction takes place.


It is very common for misdemeanor DWI charges to be “reduced”.  Not everyone who gets arrested and charged with DWI actually gets convicted of DWI.  If the DWI is a weak case for the state, meaning that the prosecution does not believe that they could prove beyond all reasonable doubt that the Defendant was intoxicated, or the state finds other good reasons to not recommend that the Defendant plead guilty, they may offer to “reduce” the DWI.


What this most often means is that the state will offer to let the Defendant plead guilty or receive deferred adjudication on an “obstruction of passageway” charge. 


An obstruction of a passageway charge is a Class B misdemeanor.  Unlike DWI, it is a non-intoxication offense.  It is essentially a charge of blocking a roadway or sidewalk. 


When a “reduction” is done, the state will actually file a new charge against the Defendant for obstruction of a passageway.  It has a cause number, a charging instrument, and a court date just like the DWI.  At that point, the Defendant will have two cases pending against him or her – both the DWI and the obstruction of a passageway. 


At that point, the Defendant will then plead guilty and either get a final conviction for obstruction of a passageway or be placed on deferred adjudication probation.  For a final conviction, the Defendant can either get days in jail as a punishment or be placed on a DWI-like probation requiring counseling and community service.  For a deferred adjudication, the Defendant will not get a final conviction as long as the probation is done properly.  This probation will include counseling and community service and may include alcohol monitoring, like an interlock device. 


Once the Defendant has resolved the obstruction of a passageway charge, the DWI is dismissed, meaning that there is no final conviction for that DWI. 


This can be a very good result if a Defendant appears somewhat intoxicated in the evidence taken from the DWI arrest but would like to keep the DWI off his or her record. An obstruction of a passageway does not carry a statutory license suspension, a surcharge, or the social stigma of a DWI.  Having an obstruction on a criminal record may not have the economic consequences of a DWI.  Lastly, and importantly, it is not enhanceable.  If one has an obstruction of a passageway on his or her record, if s/he is accused of DWI a second time, it will still be charged as a 1st time DWI.   


I have a great deal of experience in negotiating obstructions for my clients who have DWI charges with some evidence of intoxication.  Call me today if you are charged with DWI.