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Attacks That Can Be Used Against DWI Field Sobriety Tests

During your DWI trial, your Travis County, TX DWI attorney will have the opportunity to cross-examine the arresting officer.  During that time, the attorney might choose to point out the issue of cross-contamination of field sobriety tests by bringing up a specific issue with respect to one particular field sobriety test, and not mentioning that the same issue also applies to other field sobriety tests.  The attorney, as part of his or her trial technique, might decide to allow the jurors to determine on their own that the same issue would affect the other tests.  Doing so will help the cross-examination of the officer to develop on its own.

There are a few cross-contamination attacks that can be used against field sobriety tests, and those are: 1.) the existence of a sloped testing area; 2.) no baseline; and 3.) the arresting officer can’t answer the “why” of the test.

The area used to test in is sloped

Any Travis County, TX DWI attorney will tell you that regardless of whether the field test given is the Romberg test, the “walk the line” test, or the one-leg stand test, it should be given on a level surface; however, there is hardly ever a level surface to use because there is almost always a little incline, and actually, there will be times when the test area slopes in two different directions.  That said, if an area wasn’t level during the administration of the “walk the line” test, it certainly couldn’t have been level during the Romberg test.

There’s no baseline

Without the officer having a sense of how you would have done on a field sobriety test without having consumed alcohol, he or she cannot realistically claim that your poor test performance was caused by you being impaired by alcohol.  There could be any number of reasons for poor performance that are not alcohol-related, such as an overall lack of coordination or being tired in general.

The arresting officer can’t answer the “why” of the test

To be sure, the prosecutor will hype up the experience, training and knowledge of the arresting officer because he or she will be offered as an expert at trial.  However, your Travis County, TX DWI attorney can challenge this so-called expertise by posing a question to the officer with respect to why the test was given in a particular way.  For instance, very few police officers know why the head has to be tilted back and the eyes have to be closed during the Romberg test; thus, this would be a great area in which to use the cross-contamination dynamic.

If you have questions about your upcoming DWI trial and you need a Travis County, TX DWI attorney, please call Bristol Myers at (512) 478-2100 for a free consultation.

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