Tuesday, May 1, 2018
Jennifer Luette Staff Reporter (2017-2018)
Did you know that you can refuse a sobriety test? Many Americans do not realize that it is well within their rights to refuse a police officer’s request to perform a sobriety test. In fact, many people may be unsure of what their rights are when stopped by police, or whether the sobriety test the police officer “asked” them to take is admissible in court. Before addressing whether sobriety tests are admissible in court, it is important to understand your rights when stopped, and to know whether police officers can force you to perform a sobriety test.
Field Sobriety Tests A common sobriety test that you may have seen in the movies or on T.V. is the Standardized Field Sobriety test recommended by the National Highway Traffic Safety Administration. The Standardized Field Sobriety test is made up of three separate tests: 1) Horizontal Gaze Nystagmus (the “follow my finger” test); 2) One-Legged Stand test; and 3) the Walk-and-Turn test.¹ Have you ever wondered how accurate these field sobriety tests really are? While these tests are not meant to indicate a specific blood alcohol concentration in an individual, there are many critics that question their accuracy for generally determining whether an individual is legally intoxicated.² Although validation studies have been conducted by researchers in an attempt to validate the accuracy of the Standardized Field Sobriety test, its critics suggest that these validation studies are outdated and contain many major scientific flaws.³ One critic went so far as to say that “no field sobriety test in use today by police is correlated to driving impairment.”⁴ Therefore, to protect yourself from the unreliability of these tests, many lawyers recommend that you decline a field sobriety test and request to speak with your lawyer if you find yourself in this situation.
Blood Draws If you are under suspicion of driving while intoxicated, another form of sobriety test that may be requested by a police officer is a blood draw to determine your blood alcohol concentration, or “BAC.” In 2013, the United States Supreme Court ruled that the fact that alcohol metabolizes in the body is not an exigent circumstance that would allow a blood draw without a warrant or consent.⁵However, the Texas Transportation Code currently states that an “officer mayapply for a warrant authorizing a specimen to be taken from the person.”⁶ In Texas, we have implied consent laws which deem that a person has consented to the taking and analysis of a blood specimen if that person is arrested for allegedly operating a motor vehicle in a public place while intoxicated.⁷ Texas law essentially says that while it may be a good practice for Texas police officers to obtain a warrant before taking a blood draw, it is not required if the person is under arrest for driving while intoxicated because the person has already impliedly consented under Texas law. However, the Texas legislature will likely have to reevaluate the Transportation Code as a result of a 2016 U.S. Supreme Court case that ruled in a 7-1 decision that a police officer must obtain a warrant before taking an involuntary blood draw from someone suspected of driving while intoxicated. To do otherwise would violate a person’s 4th Amendment right against an unlawful search.⁸ But the Supreme Court also concluded that the 4th Amendment permitted warrantless breath tests because they were less invasive.⁹
Your Rights While many people might think that these sobriety tests and blood draws are required, you have a choice whether or not to consent to them. Forcing you to take a field sobriety test would be against your 5th Amendment right not to be a witness against yourself.¹⁰
Therefore, you have the right to decline a police offer’s request and ask for your lawyer. However, in Texas, your right to refuse a sobriety test is waived if a police officer believes that you caused an accident when driving while intoxicated and as a result, any individual has died or will die, another person has suffered serious bodily injury, or another person has suffered bodily injury and was transferred to a medical facility for treatment.¹¹ While refusing a sobriety test may keep you from incriminating yourself, if you refuse a field sobriety test or the taking of a blood specimen, the Texas Transportation Code gives the Department of Public Safety the authority to suspend your driver’s license for 180 days for your first suspected offense.¹² If it is your second or third offense, your license will be suspended for 2 years for refusing a sobriety test.¹³
So . . . Are They Admissible? The three field sobriety tests contained in the National Highway Traffic Safety Administration’s Standardized Field Sobriety test are generally admissible in Texas. In fact, the results of field sobriety tests are admissible even if a police officer coerced you into taking the test in the first place.¹⁴ If you refuse to take a field sobriety test, that fact is also admissible in Texas courts to show that there was probable cause for your arrest and can be used as evidence of guilt.¹⁵
It has been well established in Texas that the Horizontal Gaze Nystagmus (HGN), more commonly known as the “follow my finger” test, is admissible against the defendant in court, even if the test was not videotaped.¹⁶ Texas courts have further found that a police officer does not have to be an ophthalmologist or hold a practitioner certification to testify as an expert witness about the rendering of an HGN test, although the requirements for expert testimony must be met.¹⁷However, for an HGN test to be admissible, a police officer must have some certification from a training course qualifying him or her to administer the HGN test.¹⁸ Slight changes in the administration of an HGN test will generally not affect the admissibility of the test, but it may affect how much weight the fact finder will give the results of that test.¹⁹ Unlike the HGN test, police officers may only testify as lay witnesses about the rendering of the One-Leg Stand and Walk-and-Turn tests.²⁰
Blood draws are also admissible in Texas courts to show evidence of intoxication, so long as a person’s constitutional rights have not been infringed. As discussed above, the 5th Amendment’s protection against self-incrimination allows people to refuse blood draws, unless a police officer believes that your actions have caused death or bodily injury.²¹
However, Texas’s implied consent laws allow a police officer to take and analyze your blood if you have been arrested under suspicion of driving while intoxicated.²² While Texas hasn’t always required that agencies obtain a warrant before drawing blood, that practice will likely have to change after the U.S. Supreme Court’s decision in 2016 that held blood specimens taken without a warrant were unconstitutional, and therefore inadmissible, because they violate a person’s 4th Amendment right against an unlawful search of their body.²³
Therefore, for the results of a blood draw to be admissible, a prosecutor would have to show that the defendant agreed to the blood draw, that a warrant was obtained, or that there were exigent circumstances under which a warrant could not be obtained.²⁴ The natural dissipation of alcohol in the body does not qualify as an exigent circumstance.²⁵
In summary, the decision of whether to submit to a field sobriety test or blood draw is complicated. In certain situations, a person may not have a choice but to succumb to a blood draw in Texas if they have killed or seriously injured another.²⁶ In many cases, the results of those tests will be admissible against you in court. Although you have the option to refuse sobriety tests in most cases, the refusal itself can be admissible against you in court and carries its own set of consequences. In any event, if you find yourself in the difficult situation of being accused of driving while intoxicated, you should immediately contact a lawyer to discuss the choices that are right for you. Sources ¹ "Field Sobriety Test Review," Texas District & County Attorneys Association (last visited February 25, 2016) ² Webster v. State, 26 S.W.3d 717 (Tex.App.—Waco 2000, pet. ref’d) ³ William C. Head, “Field Sobriety Tests Explained,” (last visited February 25, 2016). (Also footnote 4) ⁵ Missouri v. McNeely, 133 S.Ct 1552 (2013). (Also footnote 25) ⁶ TRC Sec. 724.015(3) ⁷ TRC Sec. 724.011 ⁸ Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). (Also footnotes 9 and 23) ⁹ See also Debra Cassens Weiss, "Supreme Court says warrantless blood draws in DUI arrests are unconstitutional," ABA Journal (June 23, 2016) ¹⁰ U.S. Const. amend. V ¹¹ TRC Sec. 724.012(b)(1) ¹² TRC Sec. 724.035(1) ¹³ TRC Sec. 724.035(2) ¹⁴ Oguntope v. State, 177 S.W.3d 435 (Tex.App.—Houston [1st Dist.] 2005, no pet.) ¹⁵ Maxwell v. State, 253 S.W.3d 309 (Tex.App.—Fort Worth, 2008, pet. ref’d);Lonsdale v. State, No. 08-05-00139-CR, 2006 WL 2480342 (Tex.App.—El Paso, 2006, pet. ref’d); see also Dawkins v. State, 822 S.W. 2d 668, 671 (Tex.App.—Waco, 1991, pet. ref’d) ¹⁶ Quinney v. State, 99 S.W.3d 853 (Tex.App.—Houston [14th Dist.] 2003, no pet.); Campos v. State, No. 09-14-00481-CR, 2015 WL 6745419 (Tex.App.-Beaumont 2016) ¹⁷ Gullatt v. State, 74 S.W.3d 880 (Tex.App.—Waco 2002, no pet.); Tex. R. Evid. § 702. ¹⁸ Ellis v. State, 86 S.W.3d 759 (Tex.App.—Waco 2002, pet. ref’d) ¹⁹ Cox v. State, No. 04-12-00224-CR, 2013 WL 1850781 (Tex.App.—San Antonio) ²⁰ McRae v. State, 152 S.W.3d 739 (Tex.App.—Houston [1st Dist.] December 02, 2004, pet. ref’d); Plouff v. State, 192 S.W.3d 213 (Tex.App.—Houston [14 Dist.], 2006) ²¹ U.S. Const. amend. V.; TRC Sec. 724.012(b)(1) ²² TRC Sec. 724.011 ²⁴ John Gioffredi, "DWI Arrests: When Can the Police Take Your Blood Against Your Will?" Dallas Bar Association (Apr. 27, 2016) ²⁶ TRC Sec. 724.012(b)(1)
