By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Introduction
Part 1: Horizontal Gaze Nystagmus
Part 2: Walk and Turn
Part 3: One Leg Stand

WHAT IS THE WALK AND TURN TEST

The Walk and Turn Test is the second of the three field sobriety tests and the name is incredibly deceiving. Despite the simplicity of its title, the Walk and Turn test requires scrupulous attention to eight very specific instructions. You may have grown up thinking that 75% is a passing grade but mess two instructions and, voila, you are now drunk according to the National Highway Traffic Safety Administration. To demonstrate its simplicity, officers will frequently step down from the witness stand and attempt to give a demonstration in court. Like Nastia Liukin they take their 9 steps heel to toe and knock it right out of the park. Fortunately for the officer, practice makes perfect–unfortunately for you, your field sobriety testing ability won’t be as polished when you are on the side of the road with cars screaming by. The point is this: an unwitting sober person may easily find himself or herself a victim of false impressions and premature conclusions. With a general understanding of how the test works and common officer mistakes in administering the test you may realize that fighting your case is not a bad idea.

WHAT ARE YOU BEING TESTED ON?

Police officers are trained to deliberately hide the ball on this question. It is not by coincidence that many people don’t even realize they messed it up until they are sitting in a courtroom. If you are looking forward to that kind of surprise, then the rest of this article is not for you. For those out there who like to read the last page first, here it is: the test requires individuals to perform “divided attention” tasks and there are 28 ways to fail (8 total instructions with any combination of 2 or more errors is a failure).

A divided attention is a test is a test which requires a person to perform two or more tasks at once. Law enforcement use divided attention tests because most intoxicated individuals have significant difficulty performing them. The Walk and Turn Test requires a person to divide attention during two separate stages: (1) the Instruction Stage, and (2) the Walking Stage.

During the Instruction Stage, an individual is instructed to imagine a straight line and place his or her right foot in front of the left foot, heel-to-toe, along the imaginary line. The individual is further instructed to keep his or her arms at his or her side and to maintain the position until instructed to begin the walking stage. The officer will then give instructions for the walking stage where the individual must take 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back. The final instructions include keeping arms at the side while walking and not stopping until the test is completed.

There are a total of 8 possible errors which an officer will mark off for. Law enforcement describe these errors as “clues” or “clues of intoxication.” According to the creators of the test, a person who exhibits a clue demonstrates an inability to follow instructions while performing a physical task that requires balance at the same time. The clues include:

1. Cannot keep balance while listening to instructions
2. Starts before the instructions are finished
3. Stops while walking
4. Steps off the line
5. Does not touch heel to toe
6. Uses arms to balance
7. Improper turn
8. Incorrect number of steps

Exhibiting two or more clues amounts to a failure (intoxication).

MISTAKES AND ISSUES

Probably the most troubling issue with this test is that it presumes that every person who performs the test is good at paying attention in the first place. For those who have spent any amount of time in the real world with real people, this presumption is a little bit optimistic about human nature. When you add to the equation the fact that the ability to follow directions could and should be impaired by the multitude of other things running through the mind of a person who has been hauled from his or her vehicle and asked to perform field sobriety tests, the basic assumption of the test becomes even more troubling. These very logical concerns can easily be ignored without an attorney who can point them out on your behalf–the State is not in the business of calling their sobriety tests into doubt.

In addition to logical flaws, there are a number of ways the test may be administered improperly. Prior to performing the test the officer should screen individuals to determine whether or not they would be a “good candidate” to perform the test. Officers are trained that individuals over 65 years of age, or with back, leg, or inner ear problems have difficulty performing the Walk and Turn. Additionally, the test should be conducted on a reasonably dry, hard, level, nonslippery surface. Most officers are good at routinely asking these questions. Unfortunately, many officers will have already decided whether you are intoxicated by the time you have reached the Walk and Turn Test. Being a bad candidate will not prevent the officer from asking you to perform the test anyway. Most officers will do the best they can with the tools at their disposal to put build their DWI case, and a frequently they can’t control the circumstances surrounding the test. Unfortunately, doing the “best they can” sometimes becomes an excuse for selling a flawed field sobriety test to the jury.

As a citizen, we take comfort that officers are doing the best job they can–that is all we can ask. This does not change the amount of proof required to convict someone of a crime. Because officers are conducting tests which require them to render conclusions about human physiology and psychology, DWI investigations conducted by even the most well-meaning and thorough officers can have significant flaws–don’t expect that the State will faithfully point them out on your behalf.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.