By Collin County Criminal Defense Lawyer Jeremy Rosenthal
When people are visiting with me about their recent DWI arrest in I’m often asked what constitutes passing or failing the standardized field sobriety tests.
I start by telling them that at least according to the grader– they probably failed — but the officer’s opinion ultimately isn’t what counts. It’s the jury’s opinion that matters and if the tests aren’t done to standard (and they often aren’t), then the jury may give the officer’s tests and opinions very little weight.
The truth is that there are three tests that are typically utilized by police and they are highly subjective in how they are graded. Not only that, but they must be given in the manner prescribed by the officer’s training or the results can be compromised. So when the officer says you failed — I tend not to worry.
In fact, the police officer’s own training manual has very strong language about how critical it is to do the test correctly. The Manual issued by the National Highway Training Safety Association (“NHTSA”) says in uppercase, bold letters:
IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES
THE TESTS ARE ADMINISTERED IN THE PRESCRIBED,
THE STANDARDIZED CLUES ARE USED TO ASSESS THE
THE STANDARDIZED CRITERIA ARE EMPLOYED TO
INTERPRET THAT PERFORMANCE.
IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST
ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.
While I won’t go into the details of each test just this moment; the horizontal gaze nystagmus (the eye test), the walk-and-turn (the walking the line test) and the one-leg-stand must each be done in the prescribed and standardized manner. If they’re not done that way then the jury can give the tests far less weight at trial — regardless of how the police office thought you did.
So whether you passed or failed ultimately not be the right question to ask. How the tests are done is critical too.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice you should consult an attorney directly.