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If you’re pulled over in Texas and an officer suspects you of driving while intoxicated (DWI), you will be asked to perform field sobriety tests. But can you refuse a field sobriety test? The short answer is yes. Do you know what the consequences for refusing to do field sobriety tests are? This article will explore your rights, police tactics, and how to navigate this complex situation.

Your Right to Refuse Field Sobriety Tests in Texas

In Texas, you have the legal right to refuse field sobriety tests. The standard battery of field sobriety tests include:

  1. Horizontal Gaze Nystagmus (HGN) Test
  2. Walk-and-Turn Test
  3. One-Leg Stand Test

These tests are discussed in more detail in the webinar linked below.

Unlike chemical tests (breath, blood, or urine), field sobriety tests are not covered under Texas’ implied consent laws. This means refusing them does not result in a license suspension.

Officer Tactics and Your Right to Refuse

Officers are trained to make these requests sound like requirements. They are figures of authority asking you to do something. The truth is, if you asked them, they’d admit you don’t have to do them. They certainly want you to. And there’s certainly scientific evidence that backs up properly administered field sobriety tests. The real problem is you don’t know who is administering the test – and more often than not, these tests are administered incorrectly. I’ve watched thousands of DWI tapes as a lawyer, and only a few of these videos have an officer who does field sobriety tests properly. (There are exceptions. For example, some cities have dedicated DWI units, and as a result, these officers can get very good at DWI investigations. It is all they do.) So here’s what you should remember:

  1. You have the right to refuse, regardless of how the officer phrases the request.
  2. Officers are trained to gather evidence, and these tests are designed to help them do that.
  3. Politely but firmly stating, “I do not consent to any field sobriety tests” is within your rights.

Why You Should Consider Refusing Field Sobriety Tests

There are several reasons why refusing field sobriety tests may be in your best interest:

  1. Not Entirely Objective: While the tests are designed to be objective, some subjectivity is built in. “Stops while walking,” is a clue of intoxication on the Walk and Turn test. What’s the line between a pause and a stop? “Sways while balancing” is a clue on the One Leg Stand. What’s a sway and what’s not. At the scene, it’s up to the officer to decide.
  2. Reliability Depends on Administration: If the officer doesn’t administer the tests correctly, the value of those tests are diminished immensely. It’s also something that’s easy to miss as an attorney, if you don’t know what you are looking for.

Potential Consequences of Refusal of Refusing Field Sobriety Tests

While refusing may be beneficial, it’s important to understand the potential consequences:

  1. The officer may still arrest you based on other evidence.
  2. Your refusal can be used as evidence of consciousness of guilt in court, though this can be challenged.
  3. The officer may seek a warrant for a blood test.
  4. Refusal might strengthen the officer’s suspicion of intoxication.

Everything You Need to Know if You’ve Been Arrested for Driving While Intoxicated in Texas


Exiting Your Vehicle vs. Field Sobriety Tests

It’s crucial to distinguish between an officer’s request to exit your vehicle and a request to perform field sobriety tests. These are two separate issues with different legal implications.

When an Officer Can Order You Out of Your Vehicle

In Pennsylvania v. Mimms, the U.S. Supreme Court ruled that an officer can order a driver to exit their vehicle during a lawful traffic stop. This is allowed for officer safety reasons and applies regardless of whether the officer suspects impairment. You must comply with this order.

Key points about exiting your vehicle:

  1. It’s a lawful order that you must follow.
  2. Refusing to exit can lead to charges of resisting or obstructing an officer.
  3. This order does not require probable cause or reasonable suspicion of a crime.

Exiting Vehicle vs. Field Sobriety Tests

While you must exit your vehicle if ordered, this does not mean you must perform field sobriety tests. Here’s the distinction:

  1. Exiting the Vehicle: A mandatory order for officer safety.
  2. Field Sobriety Tests: Voluntary tests that you can refuse.

Once you’re out of the vehicle, the officer may ask you to perform field sobriety tests. At this point, you can (and often should) politely decline.

what to do if you are stopped by the police

What to Do If Stopped

If you’re pulled over and suspect the officer believes you’re intoxicated:

  1. Be polite but firm in asserting your rights.
  2. If ordered, exit the vehicle as requested.
  3. Clearly state “I do not consent to any searches or tests” if asked to perform field sobriety tests.
  4. Remember you have the right to remain silent beyond providing license and registration.
  5. Do not physically resist if the officer decides to arrest you, but continue to assert your right to remain silent.

Breath and Blood Tests

While you can refuse field sobriety tests without automatic penalties, the same is not true for breath or blood tests. Texas has implied consent laws, meaning refusal of these chemical tests can result in license suspension. However, it’s important to note:

  • Refusing a specimen test results in a 180-day license suspension.
  • Failing the test leads to a 90-day suspension.

Despite the longer suspension for refusal, it is almost always the best decision not to voluntarily give a specimen. Let the officer do their job and obtain a warrant if they have probable cause. This approach limits the evidence against you and preserves your rights.

If the officer does obtain a warrant for a blood draw, you should not physically resist. At this point, the blood draw is legally authorized, and resisting could lead to additional charges.

Conclusion

Understanding your rights, the difference between lawful orders and voluntary tests, and the potential consequences can help you make an informed choice if you find yourself in this situation. Remember, field sobriety tests are designed to gather evidence against you, and in many cases, refusing these tests may be the best course of action to protect your legal interests.

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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