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  • Ruben Restrepo

Can I Refuse to Take the Standard Field Sobriety Test?

The Simple answer is YES. Yes you have a right to refuse the Standard Field Sobriety Test (SFST). You should refuse. Thank you for attending my TED talk.

Okay, okay...You have more questions like, "Who walks like this? How is standing on one leg showing anything? Why is he waiving this in front of face?" The answer is simple, the SFSTs are designed for people to get arrested, which leads to more evidence for a DWI convictions. Sober people cannot pass these SFSTs.

The scenario is simple. You are driving to your destination. You get pulled over. It is night time, and most people are coming from bars and restaurants. The officer suspects you may have been drinking. Should you take the test just for giggles? Nope. No way. This is because the results do not really matter. Does it make sense that having 6 out of 8 signs of being sober or not intoxicated equal intoxication? Of course it doesn't make sense, but that is the impossible burger they are serving you.

Let discuss this a little more, and see how ridiculous the SFST is to start with.

What Exactly is the Standard Field Sobriety Test?

The SFST consists of three tests created by the National Highway Traffic Safety Administration (NHTSA) to be used by police officers to determine if an individual is under the influence of alcohol and establish probable cause for an arrest. The tests are complicated and difficult to grade, especially in a scenario after sundown, and the officer and the individual attempting to successfully perform the SFST are just a few feet away from oncoming traffic. Again, the tests have very little to do with determining if a person is intoxicated; their purpose is to create a situation where the officer can find a reason to make an arrest. Remember, that’s not same as proving in court that the driver was operating a vehicle while intoxicated. The results of the SFST can still be used as evidence against you in court.

( An officer can legally order you to get out of the car/truck/vehicle. This isn't part of the test, so you have to comply. Just comply safely on slowly. Doing what the officer orders you to do is not an admission of guilt.)

The SFST includes horizontal gaze nystagmus (HGN) testing (popularly known as “the pen test”), and two types of divided attention testing, the walk-and-turn (WAT) test, and the one-leg stand (OLS) test.

The HGN test is based on the assumption the eyeballs of an intoxicated individual will visibly jerk while attempting to follow a moving object. The many problems with this test include the fact that some people have natural nystagmus, or jerking of an eye, headlights from oncoming cars can produce a false nystagmus, and the officer attempting to observe millimeter-sized ticks of the eye without knowing what is natural for you and your eyes. There are literally 38 different reasons to have nystagmus. Additionally, there is no definition of how far the eyes must move or how many times the eyes must move.  It’s a “trust me, I saw it” grading system.  (The overwhelming majority of the time, they always say you got all 6 out of 6 possible clues. Like really?!!).

The walk-and-turn test consists of 15 different instructions! (People don't even read the manual if there more than 7 instructions, this has 15.) Walking a straight line may sound simple, but when the walk is broken up into over a dozen different actions, and your failure to precisely perform just two of them means you’ve failed the test, it’s apparent that the test isn’t measuring anything other than how nervous and frustrated the testing officer can make you feel.

The one-leg stand test has just 13 different instructions, which all boil down to determining whether or not you can hop on one foot and count at the same time. Make it make sense, sorry not possible. More accurately, it is a test that is designed for you to fail as well as provide the officer with cause to arrest you and evidence to convict.

What Happens if I Refuse to Take the SFST?

Refusal to take the SFST cannot be used against you in a trial, but during the stop, your refusal may prompt the officer to seek out other forms of probable cause. You also can refuse a blood or breath test. However, refusing a blood or breath test comes with certain repercussions, and unlike the SFST, you won’t be asked to take a blood or breath test until after you have been arrested.

Houston DWI Defense

If you have a DWI charge, and you already took the SFST, Ruben Restrepo law can help. I have the experience necessary to successfully fight DWI charges and any SFST results presented as evidence at your trial. Contact me for a free consultation.

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