How to Defend Against a Failed Sobriety Test

There are a huge number of ways that even a sober person could fail a sobriety test. Find out how you can defend your DWI in court. It is possible to defend a failed sobriety test!

It’s common knowledge that a failed sobriety test means you will be arrested for a DWI, which is why many people refuse to take it.

However, prosecutors will then try to make a lot out of the fact that the client refused to take the standardized field sobriety tests (SFSTs). They argue that their refusal was because they were drunk and did not want to fail.

That is why I always strive to convince the jury that no one should ever consider taking the field sobriety tests, because everyone is unlikely to pass, sober or drunk. Once they see how biased the tests are, you have a fighting chance even with a bad SFST video. However, even a failed sobriety test can be defended in the courtroom by a good DWI attorney.

Here are just a few ways I can defend against a failed sobriety test.

The HGN Test

DWI guru Gary Trichter refers to the HGN test as “here goes nothing” and juries always get a kick out of that.

Based on the video evidence I have observed in most of my cases, I have seen police officers perform the Horizontal Gaze and Nystagmus (HGN) test correctly in about 5 out of 100 cases—often because they were taught incorrectly. And if one officer is conducting the test incorrectly and he teaches ten other officers how to do the test, they are all going to do it incorrectly. Even if an officer was taught correctly, officers also get lazy and don’t follow the protocol they were taught.

There are plenty of medical, environmental, and biological reasons for you to fail the HGN test that have nothing to do with your alcohol consumption, but the police (and the prosecution, for that matter) are not going to take these into consideration during your DWI case. If your eyes jerk, no matter what the cause, you are probably going to jail.


The Walk and Turn

During the walk and turn test, you must first stand heel to toe with your arms at your side; then you put your right foot in front of your left foot, heel to toe, walking with your arms at your side. You also must maintain the heel to toe position during the time it takes the officer to explain the test instructions, which may take as long as ninety seconds, while fatigue builds up.

If you step out of the correct position at any time, the police can use that as evidence of intoxication. You only need to display two “clues” (errors) out of eight for them to bring intoxication charges against you. In addition, your heel and toe have to be within one half inch of each other. This is very difficult when you are taking a test on the side of the road with gravel and broken glass around you, 18-wheelers driving by, and a cop shining a light in your face.

The main problem with this test, much like all of the field sobriety tests, is that it is hard to say what your performance is based on. Simply put, if the officer does not know how you would perform on the walk and turn test when you are totally sober, how would they know that your failed sobriety test was because of alcohol?


The One-Leg Stand

When performing the one-leg stand test, you need to stand with your arms at your sides and your feet together; then you must pick up one leg and raise it until your foot is six inches off the ground, with your toe pointing forward. You then need to count out loud and the officer will tell you when to stop. The officer is supposed to be timing you for thirty seconds; during that time, they will record how many intoxication clues you display.

You could conceivably score one of the four clues during any one of the thirty seconds. You could put your foot down or sway or use your arms or hop during any of the second count marks. The officer will not tell you what he is looking for; he only tells you what he wants you to do. He will simply say, “If you put your foot down just pick it back up,” and he will not mention that putting your foot down is evidence of intoxication. I tell the jury panel that I think that sends a message that it is okay to put your foot down if you begin to lose your balance. It actually encourages you to score a point against yourself. It is unfair to do so.

Analyzing Blood or Breath Test Evidence

In addition to the above sobriety tests you may also be asked to take a blood or breath test to check your blood alcohol level.

It is important to keep in mind that there are national protocols with respect to the scientific evidence in blood and breath cases, as well as police protocols, which are generally of a lesser standard than the national protocols. Therefore, it is essential to either find out as much as you can about the blood and breath testing procedures in DWI cases, or hire an attorney that knows more than the police lab rats do.

A good breathalyzer is supposed to have filters that will keep other chemicals from being read and interfering with the results, but many times there are issues. Both human error and machine malfunctions can cause the results to be inaccurate. There are also medical conditions as well as simple body functions, like burping, that cause the machine to report inaccurate readings. Additionally, if the machines are not maintained or any human error is overlooked, your results could be wrong.


As an attorney in this practice area, it is important to make the jury aware of these issues. Most people are taught to assume that law enforcement is always out to help them, but this is not always the case. Make sure you have a qualified DWI attorney on your side who will look out for you.



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1 Comment

  • Chris Jade Hall Reply

    Great post and very well explained. I believe in professionals so this is a very useful post for everyone. Many thanks for sharing.

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