TYSK: Standardized Field Sobriety Tests (SFST)

Image cropped from original source: Ayden Cocktails on Flickr, used under Creative Commons license.

Axiomatically, every man is presumed to know the law. This is, of course, a falsehood.  But it’s a legal fiction that allows courts to avoid the problem of dealing with a defendant whose main defense is “well, shoot, if I’d a’ known it was illegal to kick a horse, I probably wouldn’t a’ done it…” After all, if everyone could avoid criminal penalties by claiming ignorance, well… we would have a lot fewer people in the criminal justice system.

To that end, I’ll be doing some posts under the general banner of “Things You Should Know” (TYSK) which will, I hope, shed a little light on things that have a huge impact on people from a legal perspective.  This post, for example, addresses DWIs and Standardized Field Sobriety Tests (SFST) and three reasons why you should never try to perform them.

TYSK about SFSTs

1.  SFSTs are not just about performance; they are also about following instructions.  I’ve had a number of clients tell me with pride how well they did on the Walk & Turn portion of the SFST. “I was able to walk in a straight line all the way to thirteen!” one might say, or “During the turn, I did a crisp military swivel just like I learned in marching band in High School; I stopped, planted, and spun around, without even falling over!” might say another. Unfortunately, going the extra mile, or executing a fairly complicated turn registers as a fail. This is because the paperwork the officer fills out for the W&T looks like this:

Image adapted from firm's files.
Image adapted from firm’s files showing some of the cues an officer is looking for when he conducts the SFSTs.

Notice how there isn’t a check box for “went the extra mile” or “can do a fancy pirouette”? What matters on these tests is whether you do what you you’re told to do, not that you’re trying to get extra credit.

2. The officer’s subjective belief about your state of intoxication matters a whole lot more than it should, and Texas judges are keen to give a lot of deference to law enforcement officers. After all, officers are seen as performing a valuable service to society (keeping us all safe from criminals), while exposing themselves to occupational hazards (getting shot at or run over in the middle of the night). So they get a lot of leeway when it comes to their testimony at trial.  Even if he completely botches the administration of the SFSTs, an officer who testifies “I could just tell that dude was drunk because he couldn’t keep his foot elevated for thirty seconds” is going to be believed more often than an officer who doesn’t have any demonstrable evidence. Why give them that kind of ammunition?

3. You’re almost never going to be able to perform your way out of these tests.   Officers will always testify that not every person pulled over and asked to perform SFSTs will end up getting arrested for DWI. (These officers are also never able to give an exact number of such releases, but they insist that they let some people go.) Here’s the thing: if you’re asked to perform a SFST, it’s because the officer feels he is able to establish probable cause to ask you to consent to some sort of intoxication testing. He will say something to the effect of “the individual had glassy bloodshot eyes, and I could detect the odor of alcohol on his breath.” Once that happens, and you’re asked to step out of your vehicle, you’re almost assuredly not getting back in it that night.  Yes, you’re going to be facing a lot of expenses from that moment forward because you’re getting arrested for DWI, but refusing to do the SFSTs just might mean you get your case dismissed or an acquittal at trial instead of a conviction.

Obviously, if you’re going to go out drinking, it’s always better and safer to secure a sober drive.  But if you do get pulled over for DWI, do yourself a favor and don’t perform the SFSTs.