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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

December 16, 2005

The other day a guy called me and asked “how does it help me if you are certified to administer field sobriety tests?”

Here was my answer: sometimes the best defense is a good offense.  If the state attacks you (or your sobriety) because of how you performed on the field sobriety tests, then why not attack how the police officer administered those tests?  The tests are only valid if they were administered right. 

He asked me for some more explanation, so I asked: “did you blow?”
“No.”
“Well, you did the right thing by not blowing.  The state will try your case using the videotape of how you performed the field sobriety tests. 

Prosecutors use the grading methods that the police use in evaluating your performance on the field sobriety tests.  They rely on that, and if they expect to convict you for failing their test, then they better have given you the test correctly.”

I gave this example: “One time I was watching a video and the police officer was explaining and demonstrating the walk and turn test.  He demonstrated the turn completely wrong.  He pivoted on his back foot when he should have pivoted on his front foot.  He demonstrated the movement he wanted my client to make completely wrong.  How could he expect my client to do the test right?”

When I review a videotape I watch it many times.  First I grade the police officer’s performance.  I listen for whether the police officer gives the correct instructions and whether he gives them in the right order.  I am watching the tape to see if the police officer demonstrates the test correctly. 

I watch to see whether the police officer administers the test correctly.  Here are a couple of examples of incorrect administration of the field sobriety tests.  One would be that the officer, during the “pen” test (horizontal gaze nystagmus test) moves his hand too quickly in front of my client’s face.  If he does, then my client is more likely to exhibit a false positive. 

Another example would be if the police officer interrupts my client’s performance on any given test.  Officers should not interrupt a suspect while he is walking during the “walk and turn” test.  But they interrupt frequently. 

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