"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.