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As defined by the National Highway Traffic Safety Administration, the Standardized Field Sobriety Test (SFST) consists of a battery of three tests: the Horizontal Gaze Nystagnus, Walk and Turn, and the One Leg Stand. These tests were developed by the NHTSA to establish a nationwide standard for DWI detection and prosecution, with formal accreditation and administration of the program provided by the International Association of Chiefs of Police (IACP). The tests are administered systematically and graded based on predetermined and measured responses of the suspect.
Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater. NHTSA research found that this test allows proper classification of approximately 88 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants. This field sobriety test has been proven to have a number of problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, this test is not widely accepted by the medical community, and it is not admissible in several states. Unfortunately, it is admissible in the state of Texas and continues to be the most popular test used by the Texas law enforcement profession.
The Walk-and-Turn test and One-Leg Stand test are "divided attention" tests that are easily performed by most unimpaired people. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.
In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps. NHTSA research indicates that 79 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.08 or greater. That means that 1 out of every 5 people who perform this test will fail even though they are not intoxicated.
In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater.
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An officer may not force or compel you
to submit to breath, blood, or chemical
tests under most circumstances. This includes
coercing or threatening you to submit to
these tests. If an officer does coerce or
threaten you, and it is caught on camera,
than this will give you and your dwi lawyer
or criminal attorney some excellent material
to fight your charge in a court of law.
The only exception to this rule is if you are involved in a fatal accident or an accident where a death is expected, then the law requires you to submit to this type of test unconditionally. Note that if you refuse at this point, an officer has the authority to use physical force in order to conduct this test.
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Absolutely not. Texas law stipulates that no person in a private vehicle may consume alcohol, no matter where in the vehicle they sit. The only exceptions to this law are in taxis, limousines, and certain private busses.
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Yes and No. The United States Constitution
(Amendment VI) stipulates that every person
has the right to an attorney, but this is
only after you are arrested. Before told
that you are under arrest, you have no legal
right to an attorney. When you are pulled
over for DWI, you might be under arrest,
even if not told so. A good question to
ask the officer is "Am I under arrest?"
If he says yes, than you have the right
to request a DWI attorney, and this will
be explained to you when the officer reads
you your Miranda rights.
Thus, you do have an absolute right to
a DWI attorney, but this law is enforced
at the discretion of the arresting officers
and/or their law enforcement agency. More
than likely, you will have only have the
opportunity to speak with you DWIr lawyer
once you have been booked at the county
jail.
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Driving While Intoxicated (DWI) is a very complex field that can result in extremely harsh consequences. The DWI field encompasses many complex procedural, evidentiary, constitutional, sentencing, testing, and administrative issues that are just too vast for someone to overcome their first time in court. What can an average lawyer do for you? Nothing, or worse, have you sent directly to jail if he or she is not trained in this highly specialized field. A qualified DWI attorney can navigate your case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for breath machines, have blood samples independently analyzed, negotiate for a lesser charge and/or reduced sentence, obtain expert witnesses for trail, contest the administrative license suspension, properly contest the statements or conduct of the arresting officer, etc.
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The true reality of the field sobriety test can be sobering, to say the least. The reality is that you will be asked to perform this test in less than ideal conditions when you are extremely nervous about being arrested. It can be assumed that ideal conditions are a dry, flat surface in perfect daylight with few distractions. In reality, most people are asked to perform the test under one or more of the following conditions:
- Early in the morning or late in the evening
- Fatigued from the daily stresses of life
- Nervous and/or scared of being arrested
- Nighttime and/or poor light
- Poor weather conditions, such as rain, sleet, snow, ice, high winds, extreme cold or heat
- Standing on a poor surface, such as the shoulder of a highway or street, that is curved, cracked, or uneven.
- Dirt, sand, or general debris on the testing surface
- Traffic:
- Headlights to distract you
- Cars, trucks, and Semi's barreling
within inches of you at 70-plus miles
per hour. ( I have been at some of these
places in broad daylight in perfect
conditions while investigating a case
and it was unnerving even for me).
- Wind from the passing of these vehicles, which can affect several of the approved field tests.
- The police strobe lights flashing in your face
- An officer's flashlight being indirectly used to distract you
- One (or both officers) may be standing right beside you, thus distracting you from performing the test with menacing stares and/or voices.
- An officer who has already made up his mind that you are intoxicated, thus his or her "self-fulfilling prophecy" will lead you down the road to an arrest.
Also, if you are wearing contact lenses or have any type of visual impairment, this may lead to a failure of the Horizontal Gaze Nystagmus (HGN) test. This test is generally accepted as the most accurate indicator of intoxication, due to the fact that an intoxicated person may be coherent enough to perform all of the tests required of their motor skills, but their involuntary reaction to external stimuli cannot be masked. If you have contact lenses in, or any other impairment, you may be at a disadvantage when the test is administered.
The National Highway Traffic Safety Administration has stated that "Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results." However, they do not state what the "slight variations" are. A well-trained officer will be able to distinguish the differences in these variations, but once again, this is a judgment call. Many officers have testified under oath, that the surface on which they administered the tests was appropriate, when in fact it was subject to one or more of the above unacceptable conditions.
A good DWI attorney will be able to evaluate the conditions and surroundings in which you performed the field soberity test, and make the appropriate actions necessary to ensure your continued freedom.
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If you refuse a breath/blood or chemical
test or submit to these tests and fail (meaning
you have a BAC of more than 0.08%), than
you face an immediate suspension via an
Administrative
License Revocation (ALR). This will
result in your license being suspended for
months, or even years, unless you challenge
the suspension by requesting an ALR hearing
within 14 days of your arrest. A good DWI
lawyer will always request this hearing
in order to save your driving privileges.
Even if you lose this hearing and your license
is suspended, then it is still important
to attend this hearing so that your DWI
lawyer can gather information that will
be vital to the success of your criminal
trail.
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It is of the utmost importance to request a hearing because the license suspension is automatic. This means that, if you do not request the hearing, your license will be suspended without fail, and you will be subject to certain surcharges as well.
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This offense is called Driving While License Suspended (DWLS), and it is a class "B" misdemeanor, and is punishable by 3-180 days in the county jail and a $100-$500 fine for each violation. If you are caught more than once, the offense is increased to a class "A" misdemeanor, thus increasing the penalties.
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The rules have changed for DWI convictions and the State Legislature has decided that they can punish a person convicted of DWI and raise revenues at the same time. Texas law has recently added a surcharge to the driver's license of every person convicted of a DWI that was arrested after September 1, 2003. These surcharges go together with the ALR suspension, and both have the possibility of being avoided through an ALR hearing. You are subject to this surcharge as a result of one of the following:
- Refuse a breath/blood/chemical test
- Submit to the test and fail with a B.A.C. of over 0.08%
Click here for more information.
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If you are under 21 years of age and are stopped for suspicion of driving wile intoxicated, and you have a BAC of 0.08 or greater, than you will be charged with DWI. You will also receive a DWI charge if you have a BAC of less than 0.08, but the arresting officer determines that you have lost the use of your faculties. If you have any detectible amount of alcohol in your system, but have a BAC of less than 0.08 and have full use of your faculties, than you may receive an alternate charge of DUI. While the penalties are not as harsh as an adult DWI, it still comes with some pretty stiff consequences.
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