Texas DWI Stops Explained: Traffic Stops, Officer Observations, and Field Sobriety Tests
Texas DWI Stops Explained: Traffic Stops, Officer Observations, and Field Sobriety Tests
A Texas DWI investigation often begins with something that appears completely unrelated to intoxication.
A driver speeds.
A tire briefly crosses a lane divider.
A turn signal is not used.
A car rolls slightly beyond a stop line.
An officer responds to a minor accident.
The driver may not feel impaired. The officer may not initially know whether the person consumed alcohol, took medication, or used any other intoxicating substance. But within minutes, an ordinary traffic stop can turn into a roadside DWI investigation and an arrest.
In Episode 6 of Andrew & Andrew on Texas Criminal Defense, attorneys Andrew Herreth and Andrew Decker begin a two-part discussion of Texas DWI law. Part one focuses on the period between the officer’s first observation of a vehicle and the completion of standardized field sobriety tests.
The hosts explain why DWI can affect people from nearly every background, what officers look for after approaching a vehicle, how dash and body-camera recordings influence a case, and why the field sobriety exercises may be more subjective than many drivers realize.
Their message is not that anyone should drink and drive.
Both attorneys repeatedly emphasize that impaired driving is dangerous and avoidable. Decker describes routinely volunteering to serve as the designated driver, and the hosts close the episode by urging listeners not to risk their lives, the lives of others, or the serious legal and financial consequences associated with a DWI arrest.
The purpose of the episode is different.
It is to explain how quickly a DWI investigation can begin, how officers form opinions, and why the evidence must be evaluated carefully rather than accepted uncritically.
Why DWI Is an “Every Person’s Offense”
Decker describes DWI as an “every person’s offense.”
Unlike crimes usually associated with a particular motive, environment, or type of conduct, DWI can involve professionals, students, parents, retirees, and people with no previous contact with the criminal justice system.
Anyone who consumes alcohol and later drives may face scrutiny if stopped.
The person does not have to feel drunk.
The person does not have to be falling down, confused, or unable to speak.
Texas law does not limit intoxication to alcohol either. A person may be accused of driving while intoxicated because of:
marijuana;
prescription medication;
over-the-counter medication;
illegal drugs;
a combination of substances;
or alcohol combined with medication.
Decker uses diphenhydramine, commonly sold as Benadryl, as an example. A person who rarely takes it might experience drowsiness, dizziness, or impaired coordination after taking an ordinary dose. If that person drives while affected, the investigation may look similar to an alcohol-related DWI case.
This is one reason DWI cases cannot be reduced to a breath-test number.
The prosecution may attempt to prove intoxication by alleging that a person lacked the normal use of mental or physical faculties, even without a result showing an alcohol concentration at or above the statutory per se level.
The relevant questions may include:
What substance was involved?
How much was consumed?
When was it consumed?
How did it affect this particular person?
What evidence shows a loss of normal faculties?
Were the officer’s observations accurate?
Were the roadside tests properly administered?
Does the video support or contradict the written report?
What Causes an Officer to Stop a Driver?
Before an officer may conduct a traffic stop, the officer generally needs a lawful justification.
The hosts identify several common reasons:
speeding;
running a red light;
failing to stop properly at a stop sign;
failing to signal;
weaving outside a lane;
committing another observed traffic violation;
or being involved in an accident.
The officer ordinarily does not need proof that the driver is intoxicated before initiating the stop.
A legitimate traffic violation may provide the legal basis to stop the vehicle. The officer may then observe additional facts that cause the encounter to expand into a DWI investigation.
Context matters.
An officer who stops a driver for speeding at two o’clock in the afternoon may initially view the situation differently from an officer conducting the same stop shortly after bars close.
The hosts note that officers may consider:
the time of day;
the location;
whether the vehicle was seen leaving a bar or entertainment district;
the driver’s conduct before the stop;
holidays;
and periods of increased DWI enforcement.
Holiday Enforcement and “No-Refusal” Periods
The episode discusses increased DWI enforcement around holidays such as:
Christmas and New Year’s;
Memorial Day;
the Fourth of July;
and Labor Day.
Texas communities frequently announce “no-refusal” initiatives during high-risk periods.
The phrase does not mean drivers lose the ability to refuse a requested breath or blood specimen. It generally means law enforcement has arranged additional resources to seek warrants efficiently when a driver refuses.
Those resources may include:
judges available to review warrant applications;
prosecutors assisting officers;
phlebotomists or medical personnel;
mobile testing resources;
and additional patrol officers.
The practical result is that an officer who develops probable cause may be prepared to request a warrant and obtain a blood specimen even after the driver refuses voluntary testing.
Drivers should not assume that a holiday, afternoon stop, or family gathering prevents a DWI investigation. If an officer observes a traffic violation and later believes there are signs of intoxication, the investigation can proceed regardless of the setting.
The Officer’s Initial Legal Basis: Reasonable Suspicion
The hosts use the phrase “reasonable suspicion” to describe the standard generally required for an investigative traffic stop.
Reasonable suspicion must be based on specific, articulable facts and reasonable inferences rather than an unsupported hunch.
A valid stop may be straightforward when an officer measures a vehicle traveling above the speed limit or observes it run a red light.
Lane-related stops can be more complicated.
Herreth offers a hypothetical in which a driver’s passenger-side tires briefly cross a dotted lane divider on Interstate 20 before the vehicle returns to its lane.
Decker turns to Texas Transportation Code Section 545.060, which addresses driving within a single lane.
The statutory language requires a vehicle to remain “as nearly as practical” entirely within one lane and restricts movement from that lane unless it can be done safely.
Those words matter.
The law does not necessarily make every brief contact with a lane marker a traffic offense.
The circumstances may include:
debris in the roadway;
weather;
road construction;
faded lane markings;
avoiding another vehicle;
the presence or absence of nearby traffic;
or another reason why perfect lane maintenance was not practical.
The safety component may also be disputed.
Who was endangered?
How close was the nearest car?
Did the driver force anyone to brake or swerve?
Was the movement momentary or repeated?
Did the dash-camera video capture it?
A Successful Motion to Suppress Based on Lane Movement
Herreth describes litigating a suppression motion in a case where an officer claimed that the defendant’s lane movement was unsafe to the officer.
During the hearing, the officer acknowledged that he was behind the vehicle, traveling in the same direction, and was not positioned where the driver’s movement could have caused a sideswipe.
The defense challenged whether the facts actually established an unsafe movement or a violation justifying the stop.
The judge granted the motion to suppress.
The example demonstrates why the video and the officer’s testimony must be examined closely.
A written report may describe “failure to maintain a single lane.”
That phrase sounds definitive.
But the legal question is not resolved by the label in the report.
The court may need to determine:
what the vehicle actually did;
whether the conduct violated the Transportation Code;
whether the movement was unsafe;
and whether the officer possessed reasonable suspicion at the moment the emergency lights were activated.
If the stop was unlawful, evidence obtained as a result may become subject to suppression.
Weaving Within a Lane
The hosts also distinguish crossing a lane marker from weaving while remaining inside one lane.
An officer may interpret weaving as a possible indication of:
fatigue;
distraction;
cellphone use;
a medical problem;
or intoxication.
But suspicion that something may be wrong is not always the same as reasonable suspicion that a particular offense occurred.
The precise driving behavior matters.
A vehicle moving slightly from side to side within its lane may not have violated the lane statute.
On the other hand, the totality of the circumstances could still become relevant if the movement is pronounced, repeated, dangerous, or connected to another observable offense.
Defense review should not begin and end with the officer’s characterization.
The lawyer should examine the actual recording whenever it exists.
When Does the Dash Camera Begin Recording?
Once an officer activates the patrol vehicle’s emergency lights, the in-car recording system commonly preserves video from a short period before activation.
The hosts describe systems that retain approximately thirty seconds of pre-activation footage.
That feature can be extremely important.
It may show the driving conduct the officer claims justified the stop.
The pre-activation segment may not contain audio because the system is continuously buffering video rather than permanently saving every moment. When the emergency equipment is activated, the system saves the buffered segment and continues recording in real time.
The resulting recording may contain:
silent video from immediately before the stop;
a tone indicating activation;
and synchronized audio beginning after activation.
Officers may also be able to activate recording manually before initiating a stop, such as when following a car to observe possible weaving.
For the defense, the opening seconds can answer crucial questions:
Did the alleged traffic violation occur?
How severe was it?
Was the driver speeding?
Did the vehicle actually cross a lane?
Was another vehicle endangered?
Was the officer following too closely?
Did the driving look more like distraction than intoxication?
Does the video match the report?
Why Body-Camera and Dash-Camera Evidence Matters
The hosts strongly favor video transparency.
Video can protect officers from false allegations and defendants from exaggerated or mistaken accounts.
It may confirm that a driver:
staggered;
spoke incoherently;
became belligerent;
ignored instructions;
or obviously struggled with basic coordination.
It may also show the opposite:
clear speech;
calm behavior;
steady balance;
respectful cooperation;
quick production of documents;
and driving that does not appear impaired.
Decker candidly describes showing clients videos that contradict their memories.
A client may enter his office insisting that he performed perfectly and was treated unfairly. After watching only a few minutes, the client may realize that the recording shows severe balance problems, slurred speech, hostility, or other damaging behavior.
Defense lawyers do not help clients by ignoring unfavorable evidence.
They must evaluate the case honestly.
At the same time, a written report should not be treated as more reliable than the recording when the two conflict.
The Officer Approaches the Window
After the vehicle stops, the officer begins gathering observations.
Certain phrases appear repeatedly in DWI reports:
red or glassy eyes;
slurred speech;
odor of an alcoholic beverage;
nervousness;
difficulty locating a driver’s license;
difficulty producing insurance;
and fumbling with documents.
The hosts question how much weight each observation should carry.
Red or glassy eyes may result from:
fatigue;
allergies;
crying;
smoke;
contact lenses;
irritation;
or being awake late at night.
Texas allergy conditions can make red eyes especially common.
Speech patterns may also have innocent explanations.
An officer meeting a person for the first time does not know the driver’s normal manner of speaking. An accent, speech impediment, dental condition, nervousness, or naturally deliberate speech could be described inaccurately as slurring.
What Does the Odor of Alcohol Prove?
Officers frequently describe detecting a “strong odor of an alcoholic beverage.”
That observation may establish that alcohol is present, but odor alone does not establish how much a person consumed or whether the person lost the normal use of mental or physical faculties.
The hosts give the example of beer being spilled on someone’s clothing.
That person may smell strongly of alcohol without having consumed any.
Even when the odor comes from the driver’s breath, alcohol concentration cannot reliably be measured by smell.
The odor may support further investigation, especially when combined with other facts. But it should not automatically be treated as proof of intoxication.
Relevant questions include:
Did the report say the odor came from the breath, the person, or the vehicle?
Was the odor described as slight, moderate, or strong?
Were passengers present?
Were open containers present?
Could alcohol have spilled?
Did the driver admit consuming alcohol?
Did the video show normal conduct inconsistent with intoxication?
Nervousness and Difficulty Finding Documents
A driver stopped late at night may have an armed officer standing beside the window, emergency lights flashing, traffic passing nearby, and a camera recording the encounter.
Nervousness is unsurprising.
The officer may ask for a driver’s license and proof of insurance.
The driver must then remember whether the current insurance card is:
in the glove compartment;
in the center console;
stored on a phone;
inside a wallet;
or mixed with older documents.
A momentary delay may be written down as fumbling or difficulty following instructions.
The hosts ask whether that conduct truly shows intoxication or merely reflects stress and unfamiliarity.
Most people do not retrieve proof of insurance every day.
Many rarely remove their licenses from their wallets.
When an officer has already begun suspecting DWI, ordinary nervous behavior can be interpreted as another sign confirming that suspicion.
That is why the totality of the encounter matters more than any isolated phrase.
When the Traffic Stop Becomes a DWI Investigation
After observing the driver and asking preliminary questions, the officer may request that the person step out and move to an area visible to the patrol camera.
The officer often says the purpose is to perform “a few tests” to make sure the driver is safe to continue.
Decker questions that phrasing.
By the time the driver is directed to the rear of the vehicle, the officer is generally conducting a DWI investigation, not neutrally checking whether the person is comfortable enough to drive.
The softer language may make the driver more willing to participate.
A person who believes he is safe to drive may assume that successful completion of the exercises will end the encounter.
But the officer is collecting evidence.
Every movement, statement, hesitation, and departure from instructions may appear in the report.
The Standardized Field Sobriety Tests
The National Highway Traffic Safety Administration developed a standardized battery commonly consisting of three tests:
Horizontal gaze nystagmus
Walk-and-turn
One-leg stand
The hosts refer to these collectively as standardized field sobriety tests, or SFSTs.
The word “standardized” is important.
The officer is expected to administer the exercises according to prescribed instructions and procedures.
If the officer changes the instructions, moves too quickly, omits qualification questions, conducts the test on an unsuitable surface, or fails to demonstrate it properly, the reliability of the resulting opinion may be challenged.
The exercises do not work like ordinary pass-or-fail school tests.
The officer is looking for particular clues.
The driver usually does not know what those clues are.
A person can believe he performed well because he remained standing and completed the instructions, while the officer records enough clues to characterize the performance as consistent with intoxication.
Horizontal Gaze Nystagmus: The Eye Test
The first standardized test is commonly horizontal gaze nystagmus, or HGN.
An officer holds a stimulus—often a pen, finger, or small light—and instructs the driver to follow it with the eyes while keeping the head still.
Drivers often believe the objective is simply to keep watching the object.
That is not what the officer is primarily evaluating.
The officer is looking for involuntary jerking of the eyes as they move from side to side.
The hosts note that drivers cannot evaluate their own performance because the movement is involuntary and not necessarily perceptible to the person being tested.
Before administering HGN, the officer should generally ask or observe matters that may affect the test, including whether the driver:
wears glasses or contact lenses;
has an eye injury;
has a medical condition;
has unequal pupil size;
can track the stimulus equally;
or displays resting nystagmus.
The officer must also position and move the stimulus properly.
Timing, distance, speed, and the number of passes matter.
A defense lawyer reviewing the recording may examine whether the officer complied with the standardized procedure.
The Limits of Video in an HGN Case
HGN creates a particular evidentiary problem.
Dash-camera footage often does not capture the driver’s eyes clearly enough for the judge, jury, or defense lawyer to see the movement described by the officer.
The officer may testify that all clues were present.
The recording may show the driver standing still and following instructions, but not the eye movement itself.
This leaves the factfinder relying heavily on the officer’s description.
Body-camera footage may provide a closer view, but it is not always positioned correctly or recorded at sufficient quality.
The hosts explain that they have rarely seen footage clear enough to independently observe what the officer claimed to see.
Still, the video may reveal whether the officer:
administered the proper number of passes;
moved the stimulus too quickly;
skipped qualifying questions;
held the stimulus at the proper level;
instructed the driver appropriately;
or compressed the test.
Decker recalls trying a case in which an experienced DWI officer failed to complete part of the qualification procedure correctly. He used the departure from standardized administration to challenge the reliability of the officer’s conclusion.
The point was not that the officer intentionally fabricated evidence.
Good officers can make mistakes.
When liberty, a criminal conviction, and long-term consequences are at stake, those mistakes must still be examined.
A DWI Investigation Is an Accumulation of Opinions
By the time the officer completes HGN, the investigation may contain a chain of observations:
an alleged traffic violation;
the time and location;
red or glassy eyes;
an odor of alcohol;
nervousness;
difficulty producing documents;
admissions about drinking;
and claimed HGN clues.
Each fact may appear to strengthen the next.
But each fact must also be evaluated independently.
Did the lane movement violate the law?
Were the eyes red because of fatigue?
Was the speech truly slurred?
Did the odor come from a spilled drink?
Was the driver unable to find insurance, or merely checking several locations?
Was the HGN test administered correctly?
Does the video support the officer’s report?
DWI cases are often built through accumulation.
The defense must therefore examine the foundation of every step.
A conclusion that sounds powerful in summary may become less certain when the individual observations are tested against the recording, the law, the officer’s training, and ordinary human experience.
The second half of this article will examine the walk-and-turn and one-leg-stand exercises, physical and medical limitations affecting performance, why sober people may exhibit “clues,” and the dangers of treating technical departures from instructions as proof of intoxication.
The Walk-and-Turn Test
After horizontal gaze nystagmus, officers commonly administer the walk-and-turn test.
It is sometimes called the “walk the line” test.
The officer usually instructs the driver to stand heel-to-toe, keep the arms at the sides, remain in that position while listening, take nine heel-to-toe steps along a line, turn using a series of small steps, and return with nine more heel-to-toe steps.
The exercise appears simple when described quickly.
In practice, it combines several tasks:
listening to lengthy instructions;
maintaining an awkward starting position;
remembering the number of steps;
counting aloud;
staying close to a real or imaginary line;
turning in the prescribed manner;
and continuing until the exercise is complete.
The driver is expected to divide attention among all those tasks while standing on the shoulder of a road, facing flashing emergency lights, worried about arrest, and being observed by an armed officer.
The officer, meanwhile, already knows every instruction and every clue being evaluated.
A Driver Can Accumulate Clues Before Taking the First Step
One of the hosts’ central criticisms is that a person may exhibit clues during the instruction phase before the walking portion begins.
The officer directs the driver to stand with one foot immediately in front of the other.
That is not a natural resting stance.
The driver must remain in that position while the officer gives a detailed explanation and demonstration.
If the driver loses balance during the instructions, that may be counted.
If the driver moves out of the heel-to-toe position and returns to an ordinary stance, that may also be counted.
As Decker explains, a person can accumulate enough clues to be characterized as failing before taking a single walking step.
That does not necessarily mean the person is intoxicated.
The driver may have:
misunderstood the instruction;
become uncomfortable;
shifted weight naturally;
experienced anxiety;
been standing on an uneven surface;
or believed the officer had finished demonstrating.
The distinction between inability and misunderstanding is critical.
A driver who can physically complete the exercise but does not follow a technical instruction exactly may still be scored unfavorably.
What Officers Look for During the Walk-and-Turn
Standardized administration of the walk-and-turn typically asks the officer to look for specific clues.
Those can include:
inability to maintain balance during instructions;
starting too soon;
stopping while walking;
failing to touch heel to toe;
stepping off the line;
using arms for balance;
making an improper turn;
and taking the wrong number of steps.
The driver may not know any of these details.
Most people believe success means walking forward, turning around, and returning without falling.
The officer applies a more technical scoring system.
A person may complete all eighteen steps and still be described as displaying clues because the heels and toes were separated by slightly more than allowed, the arms moved away from the body, or the turn did not match the demonstration.
That gap between ordinary understanding and standardized scoring is one of the most important themes in the episode.
Heel-to-Toe Does Not Always Mean What Drivers Think
An officer may tell the driver to place the heel of one foot against the toe of the other.
The standardized criteria allow a limited gap, but drivers usually are not told exactly how close the feet must be.
Video quality may also make it difficult to determine whether the driver missed heel-to-toe contact by a meaningful amount.
A report may simply state:
“Did not touch heel to toe.”
The recording may show a generally steady walk with only a small space between the feet.
The defense should examine whether the officer’s written characterization fairly reflects what happened.
Questions may include:
How many steps allegedly missed heel to toe?
By how much?
Could the camera angle show the gap?
Was the driver wearing boots, heels, sandals, or another type of footwear?
Was the surface level?
Was the line visible?
Did the officer give clear instructions?
A small technical deviation should not automatically be treated as equivalent to severe physical impairment.
Real Lines Versus Imaginary Lines
Sometimes an officer uses a painted parking line or another visible marker.
Other times the driver is told to imagine a straight line.
An imaginary line creates an obvious problem.
The driver and officer may not visualize the same path.
A person may appear to step “off the line” even though no objective line exists.
Road shoulders may also contain:
gravel;
cracks;
slopes;
standing water;
debris;
traffic vibration;
or insufficient lighting.
Conditions matter because the test assumes a reasonably dry, hard, level, and non-slippery surface.
A defense review should ask whether the testing location gave the driver a fair opportunity to perform.
The Prescribed Turn and the “Improper Turn” Clue
At the end of the first nine steps, the officer usually demonstrates a particular turn using a sequence of small steps.
Drivers often turn in a way that feels more natural.
A former service member may pivot in a military style.
A former marching-band participant may execute a sharp turn.
An athletic person may spin smoothly.
Decker describes seeing a woman perform a controlled pirouette-like turn, land back on the line, and continue without losing balance.
The officer still counted the turn against her because it did not follow the prescribed method.
That example illustrates the difference between literal compliance and actual physical ability.
If the purpose is to assess balance and coordination, a more difficult but controlled turn may suggest strong faculties.
Yet under standardized scoring, failure to perform the specific turn can still become a clue.
At trial, the defense can ask the jury to compare the technical mistake with the person’s actual physical performance.
Counting Errors and Natural Human Behavior
The driver is often instructed to count each step aloud.
A person may take ten steps because ten is a more familiar stopping point than nine.
Another may pause briefly to regain footing.
Someone may count silently out of habit.
A driver may forget whether the officer wanted “one, two, three” or a different form of counting.
These departures may be recorded as clues even when the person remains steady and coordinated.
The defense should distinguish:
failure to understand;
failure to remember;
ordinary nervousness;
and actual loss of mental or physical faculties.
Not every instruction error proves intoxication.
The One-Leg-Stand Test
The third standardized exercise is the one-leg stand.
The officer generally instructs the driver to stand with feet together and arms at the sides, raise one foot approximately six inches from the ground, keep the raised foot parallel to the surface, look at the elevated foot, and count aloud until told to stop.
The exercise ordinarily lasts approximately thirty seconds.
The officer may demonstrate it for only a few seconds.
That contrast matters.
The officer has practiced the exercise repeatedly and knows the precise stance expected.
The driver may never have attempted it before and must perform for much longer than the demonstration while under significant stress.
The Officer Is a Professional at the Test
Herreth emphasizes that specialized DWI officers may administer and demonstrate field sobriety exercises routinely.
They receive training.
They practice the instructions.
They know where to stand.
They know what movements to avoid.
They may demonstrate the same exercise many times each month.
The driver is an amateur.
That difference can affect how a jury perceives the recording.
The officer’s brief demonstration may look effortless, while the driver’s thirty-second attempt appears less polished.
The comparison is not necessarily fair.
A more useful question is whether the driver’s overall performance actually demonstrates loss of normal faculties.
Medical and Physical Limitations
The one-leg stand is particularly sensitive to physical limitations.
The hosts mention factors that may affect suitability, including:
age;
knee injuries;
hip problems;
back problems;
balance disorders;
neurological conditions;
and significant weight.
Footwear and surface conditions can also matter.
A person with an old knee injury may compensate well during daily life but struggle when forced to stand on one leg.
Someone with back pain may raise the arms instinctively.
A person with an inner-ear condition may sway while completely sober.
The officer should ask qualification questions and consider whether the person is an appropriate candidate for the test.
When officers administer the exercise despite obvious limitations, the resulting clues may say more about health than intoxication.
What Counts as a Clue on the One-Leg Stand?
Officers commonly look for conduct such as:
swaying;
using the arms for balance;
hopping;
and putting the foot down.
The hosts also discuss counting and instruction errors that may appear in reports.
Again, the person usually does not know the scoring system.
Someone may lift the arms slightly because that is the body’s natural balance response.
Another may briefly touch the foot down and immediately continue.
A driver may hop once to avoid falling.
Those actions may be counted even if the person remains upright for most of the exercise.
The question for a jury is not simply whether a clue exists.
It is what that clue means in context.
Why Sober People May Show Clues
Decker describes administering the field sobriety exercises to several running friends after an eight-mile run.
They were fit, experienced athletes.
Three of the five reportedly displayed enough clues to be characterized as failing.
They were not intoxicated.
They were tired, somewhat dehydrated, unfamiliar with the scoring criteria, and did not know what Decker was watching for.
The informal exercise was not a scientific study, and it should not be treated as one.
But it illustrates a practical point:
Balance tests do not isolate alcohol as the only possible cause of imperfect performance.
Other explanations include:
exhaustion;
dehydration;
anxiety;
unfamiliarity;
injury;
age;
footwear;
uneven terrain;
wind;
flashing lights;
and misunderstanding.
Field sobriety evidence must be interpreted rather than merely counted.
Two Clues Do Not Mean the Person Failed Every Part
The hosts compare the scoring system to a school examination.
A driver performs many individual actions during the walk-and-turn and one-leg stand.
Yet a relatively small number of clues may be enough for the officer to characterize the result as indicating intoxication.
Decker argues that a student who missed two or three questions out of thirty would ordinarily earn a high grade, not fail the test.
The comparison is rhetorical rather than technical, but it highlights how the phrase “failed the field sobriety tests” can mislead jurors.
A person may have:
followed most instructions;
completed all steps;
remained upright;
communicated clearly;
and displayed only a small number of technical clues.
The report may compress that mixed performance into a single conclusion:
“Subject failed standardized field sobriety testing.”
The defense should unpack the conclusion.
What exactly happened?
How serious were the departures?
Do they reasonably demonstrate intoxication?
Standardization Cuts Both Ways
Prosecutors rely on standardization to argue that the tests are validated and professionally administered.
But standardization also creates rules officers must follow.
If the government wants the benefit of standardized testing, the defense may examine whether the officer:
gave the correct instructions;
demonstrated the exercise properly;
used the required timing;
asked qualification questions;
checked for medical limitations;
selected a suitable surface;
used an appropriate stimulus;
administered the correct number of passes;
and scored only recognized clues.
An officer’s mistake does not necessarily prove bad faith.
It may, however, reduce the reliability of the conclusion.
The Importance of Reviewing the Entire Video
A proper defense review does not watch only the field sobriety portion.
The entire encounter may contain evidence of normal or impaired behavior.
Important moments include:
driving before the stop;
pulling over;
locating a safe stopping place;
lowering the window;
answering questions;
producing documents;
exiting the vehicle;
walking to the testing area;
standing during instructions;
performing each exercise;
communicating with officers;
and conduct after the arrest decision.
A person who safely pulls over, speaks clearly, follows complex instructions, and remains balanced may present differently from the officer’s summary.
Conversely, a person who drives erratically, struggles to exit, repeats questions, and cannot stand without support may appear more impaired than the client remembers.
The video is often the most important evidence because it allows the judge or jury to observe the encounter directly.
Written Reports Can Sound More Damaging Than Video
Police reports are written in legal and investigative language.
Common phrases include:
“strong odor of alcoholic beverage”;
“bloodshot and glassy eyes”;
“slurred speech”;
“failed to maintain balance”;
“used arms for balance”;
“failed to touch heel to toe”;
and “exhibited clues consistent with intoxication.”
The phrases may be accurate.
They may also omit degree.
A driver who moved one arm briefly may be described as using arms for balance.
A single missed heel-to-toe step may appear alongside a report that the driver failed the exercise.
The jury should see the conduct, not merely hear the conclusion.
Field Sobriety Tests Are Evidence, Not a Verdict
The tests are one component of the State’s case.
They do not independently determine guilt.
A complete DWI evaluation may involve:
the reason for the stop;
driving behavior;
officer observations;
statements;
field sobriety performance;
breath or blood results;
toxicology;
medical conditions;
body-camera footage;
dash-camera footage;
and witness testimony.
The State must still prove every element of DWI beyond a reasonable doubt.
The defense may concede that the driver consumed alcohol while disputing intoxication.
Drinking and driving are not automatically synonymous with driving while intoxicated.
The legal issue is whether the State can prove intoxication as Texas law defines it.
“Opinion Crime” Does Not Mean the Law Is Meaningless
The hosts repeatedly refer to DWI as an “opinion crime.”
That phrase captures the substantial role an officer’s interpretation plays before chemical evidence is available.
The officer forms opinions about:
the driving;
the eyes;
the speech;
the odor;
the driver’s mental state;
balance;
coordination;
and field-test performance.
But the phrase should not be misunderstood.
DWI remains a statutory offense with defined elements.
The officer’s opinion is evidence, not the final legal decision.
The defense can challenge:
the basis for the stop;
the expansion of detention;
the administration of tests;
the reliability of observations;
the existence of alternative explanations;
and whether the total evidence proves intoxication beyond a reasonable doubt.
Courtesy Helps Even When the Stop Is Unfair
The hosts note that belligerent conduct can damage a defense.
Being rude to an officer is not the same as being intoxicated.
It is not ordinarily a separate crime merely to be unpleasant.
But jurors are human.
They may sympathize with an officer who appears calm while the driver is insulting, combative, or aggressive.
A driver should avoid arguing the case on the roadside.
The safer approach is to remain calm, comply with lawful commands, avoid physical resistance, and preserve legal challenges for court.
The episode does not offer a detailed guide to whether a driver should agree to field sobriety exercises, and the answer may depend on current law and the circumstances.
The broader point remains:
Hostility rarely improves the evidence.
The Defense Lawyer’s Role in a DWI Case
The defense lawyer is not simply looking for a loophole.
The lawyer must determine whether:
the stop was lawful;
the detention was reasonably related to the original reason;
the officer had grounds to expand the investigation;
the field tests were appropriate;
the tests were standardized;
medical limitations were considered;
the recording supports the report;
and the State can prove intoxication.
Sometimes the video is devastating.
Sometimes it is exculpatory.
Often it is mixed.
The attorney’s responsibility is to give the client an honest assessment and then develop the strongest lawful defense.
Why Early Review Matters
DWI cases begin producing evidence immediately.
A defense lawyer may need to obtain and preserve:
dash-camera video;
body-camera video;
dispatch audio;
accident footage;
nearby surveillance;
witness information;
medical records;
medication history;
road-condition evidence;
and maintenance or calibration records.
The sooner the defense begins, the more likely it is that favorable evidence remains available.
Surveillance footage can be overwritten quickly.
Witnesses forget.
Road construction changes.
Weather data becomes harder to reconstruct.
Prompt investigation can reveal facts that are invisible in the officer’s report.
What Happens After the Field Sobriety Tests?
The hosts intentionally stop Part 1 at the conclusion of roadside testing.
Part 2 of their DWI series was planned to address what happens next, including the arrest decision and the consequences associated with a DWI charge.
After the field exercises, an officer who believes probable cause exists may arrest the driver and request a breath or blood specimen.
Additional issues may include:
statutory warnings;
consent or refusal;
blood warrants;
license suspension proceedings;
bond conditions;
vehicle towing;
occupational licenses;
and the criminal case itself.
Those subjects fall beyond this episode, but the roadside investigation shapes everything that follows.
Conclusion
A Texas DWI case may begin with conduct as ordinary as speeding or briefly touching a lane divider.
From there, the encounter can develop rapidly.
The officer observes the driver’s eyes.
The officer listens to speech.
The officer notes an odor.
The driver searches for an insurance card.
Nervousness becomes a reported clue.
The driver is moved in front of the patrol camera and asked to complete exercises that the officer has practiced repeatedly but the driver may never have performed.
Each step generates evidence.
That evidence can be legitimate and persuasive.
It can also be subjective, incomplete, or affected by innocent explanations.
The walk-and-turn and one-leg stand are not simple demonstrations of whether someone can remain upright.
They are divided-attention exercises with technical instructions and predetermined scoring criteria.
A person may accumulate clues by changing stance during instructions, taking the wrong number of steps, turning naturally instead of using the prescribed method, lifting the arms, pausing, or briefly touching a foot down.
Those actions may be relevant.
They do not interpret themselves.
Age, injury, anxiety, exhaustion, dehydration, footwear, surface conditions, and misunderstanding can all affect performance.
That is why video matters so much.
The officer’s written report presents conclusions.
The recording allows judges, lawyers, and jurors to observe the conduct behind those conclusions.
Sometimes the video confirms obvious impairment.
Sometimes it shows a person who appears normal despite technical clues.
Sometimes it reveals that an officer administered the tests incorrectly.
The legal system should not assume that every traffic violation indicates intoxication, every red eye proves alcohol use, or every imperfect step establishes guilt.
Nor should it ignore genuinely dangerous driving or clear evidence of impairment.
The correct approach is careful evaluation.
Was the stop lawful?
Did the officer expand the detention for valid reasons?
Were the field tests standardized?
Did the driver have physical limitations?
Does the video support the report?
Does the total evidence prove intoxication beyond a reasonable doubt?
Herreth and Decker close the episode with the most important practical advice:
Do not drink and drive.
Use a designated driver, rideshare service, taxi, or another safe option.
A DWI arrest can produce major financial, professional, licensing, and personal consequences even before the criminal case is resolved.
But when an arrest occurs, the government must still follow the law.
A person accused of DWI is entitled to a careful review of the stop, the investigation, the testing, and every opinion used to support the charge.
Key Takeaways
A Texas DWI investigation may begin with an ordinary traffic violation rather than obvious intoxicated driving.
DWI allegations can involve alcohol, illegal drugs, prescription medication, over-the-counter medicine, or a combination of substances.
“No-refusal” initiatives generally involve expedited warrant procedures; they do not eliminate a driver’s ability to refuse voluntary testing.
An officer generally needs reasonable suspicion based on specific facts to initiate a traffic stop.
Not every brief movement across a lane marker necessarily establishes a violation of Texas Transportation Code Section 545.060.
The safety and practicality components of lane-maintenance law may be important in suppression litigation.
A successful motion to suppress may exclude all evidence obtained after an unlawful stop.
Dash-camera systems may preserve video from approximately thirty seconds before the officer activates emergency lights.
Dash and body-camera recordings can confirm or contradict both the officer’s report and the client’s memory.
Common observations such as red eyes, nervousness, slurred speech, and delayed production of insurance may have innocent explanations.
The odor of alcohol may support an investigation but does not establish how much a person drank or whether the person was intoxicated.
Once the driver is removed from the vehicle for roadside testing, the officer is ordinarily gathering DWI evidence rather than conducting a neutral safety check.
The standardized field sobriety battery commonly includes HGN, walk-and-turn, and one-leg stand.
HGN is difficult to independently verify because recordings often do not show the driver’s eyes clearly.
Standardization gives the defense a basis to challenge tests that were administered incorrectly.
A driver can accumulate walk-and-turn clues during the instruction phase before taking the first step.
The walk-and-turn evaluates technical instructions such as heel-to-toe spacing, counting, arm position, and the method of turning.
A controlled but nonstandard turn may still be counted as an improper turn.
The one-leg stand may be affected by age, weight, back problems, knee injuries, hip conditions, balance disorders, and unsuitable surfaces.
Sober people may display clues because of fatigue, dehydration, anxiety, unfamiliarity, or medical limitations.
The phrase “failed field sobriety tests” may conceal a mostly successful performance with only a few technical errors.
Field sobriety tests are evidence, not a legal verdict.
Consuming alcohol before driving is not automatically the same as legally proven intoxication.
The State must prove intoxication beyond a reasonable doubt.
Belligerent behavior can negatively affect how jurors interpret a recording even when rudeness itself does not prove intoxication.
A complete DWI defense should examine the stop, detention, officer observations, test administration, video, medical limitations, and chemical evidence.
Early investigation is important because surveillance footage, witnesses, road conditions, and other favorable evidence can disappear.
The best practical advice remains to avoid driving after drinking or after taking any substance that may impair safe operation of a vehicle.
Andrew Herreth 0:18
Hello, everyone. Welcome to episode six of Andrew and Andrew on Texas criminal defense. Andrew, how you doing, man?
Andrew Decker 0:26
I'm good. How are you, Andrew?
Andrew Herreth 0:27
I'm fantastic.
Andrew Decker 0:28
Excellent.
Andrew Herreth 0:28
So today, let's kind of talk about a pretty heavy subject. Let's talk about DWIs. Oh, I
Andrew Decker 0:36
thought you were going to talk about my weight.
Andrew Herreth 0:38
No, no, not today. At least maybe episode seven. So DWI, you know, everybody for all of you listening, this is not an easy topic. We've decided to kind of go over some things today, not in the hopes that we're making making all of you better drunk drivers. Yeah, we
Andrew Decker 1:02
don't like drunk drivers.
Andrew Herreth 1:03
We really don't. Don't do it. Always have a designated driver.
Andrew Decker 1:08
My friends will tell you anytime we go out that they know unless we have like a chauffeur or something like that. That I'm going to designate drive. I've done that before I became an attorney. I've done it basically as long as I've been able to drink. I just well, one, I don't like being intoxicated. I've only done that a few times. Didn't like the way it felt, but I really don't like drunk drivers. So I just say, hey, I'll drive and I drink iced tea and and water and and and just yeah, I think it's smart.
Andrew Herreth 1:40
You know now certainly as a as a criminal defense attorney, just how easy it takes for the average person to get arrested for DWI. This is probably the only crime in the state of Texas that's an opinion crime, and it's the only crime in the state of Texas that affects every individual, or could potentially affect every individual, regardless of class or race or gender.
Andrew Decker 2:07
Right. I call I call it. It's an every person's offense.
Andrew Herreth 2:11
Yeah.
Andrew Decker 2:11
Because if you've ever had a drink and then driven your car, you are potentially DWI.
Andrew Herreth 2:18
Right.
Andrew Decker 2:19
And and I've talked to a lot of people about this subject, you know, professionals, working people, any adult, college students, and I said, "Have you ever driven home and the next morning you thought, 'Oh, maybe I shouldn't have done that? You basically are admitting to yourself DWI. You just didn't get caught,
Andrew Herreth 2:39
right? Yeah, and you, and in fact, it doesn't even have to be because of alcohol. I mean, you can be intoxicated on any substance, any foreign substance in your body,
Andrew Decker 2:49
right?
Andrew Herreth 2:49
Yeah, marijuana, prescription pills, non-prescription pills, non-prescription pills, water, anything. Right.
Andrew Decker 2:58
You you take you take a couple of Benadryl, which you know people take as a sleep aid or as an allergy medicine, my brother and I have taken it all of our life. It doesn't really bother us. You take it, you don't take it normally. You take a couple of Benadryl, and you're suddenly woozy, and the room's a little shaky. And my friends, you could have a DWI on your hands from two Benadryl that you got at the HEB or the Tom Thumb or wherever you get your your allergy medicine.
Andrew Herreth 3:28
So, Andrew, what are what are some reasons why you know what would what would be a reason why somebody like an officer would pull somebody over and be immediately thinking DWI?
Andrew Decker 3:41
Well, I think I think. Wow, that that that's a lot of question. Let's start with why someone could get pulled over. Right. All right. Obviously, if you're what
Andrew Herreth 3:50
I was trying to spit out.
Andrew Decker 3:51
Right. Okay. So if I'm if you're speeding,
Andrew Herreth 3:54
yeah,
Andrew Decker 3:54
you can get stopped. If you don't make a proper stop at a stop sign, you can get you can get pulled over. What does that
Andrew Herreth 4:00
mean?
Andrew Decker 4:01
Well, that that's a whole nother talk. If
Andrew Herreth 4:04
you don't actually stop behind that white stripe, right? Well, that
Andrew Decker 4:08
I've I've got a case working on that right now, and and that's a whole nother topic on on stop signs. All right, don't don't get me started. If if you are weaving outside. outside your lane. If you if you fail to maintain a single lane, they could pull you over. If you're in a if you're in an accident,
Andrew Herreth 4:29
yeah,
Andrew Decker 4:30
obviously that's a reason for to call law enforcement to your attention.
Andrew Herreth 4:37
But if you're stopped for speeding, if you're stopped, you know, for a moving violation, you didn't use your blinker or whatever. You
Andrew Decker 4:44
ran a red light.
Andrew Herreth 4:45
You ran a red light. I mean, they're not imme like an officer is not immediately thinking, I got an I got a DWI here.
Andrew Decker 4:51
Probably not, but it's going to depend on time of day, location, where they saw you. If they saw you leave someplace. We'll get to that as we go through this. Well, even the time
Andrew Herreth 5:02
of year, right? Time of year. So if
Andrew Decker 5:04
it's if it's basically, there are called no refusal weekends throughout our state. Any time between about the 15th of December and about the third of January, most counties have a no refusal weekend. They're going to automatically assume you could be DWI. Memorial Day, Labor Day, Fourth of July weekend are the big ones. Those are probably the big four. And so it could be 2o'clock in the afternoon, and you're driving home from Christmas dinner. Well, if you're a family that that enjoys some red wine and some mulled cider while opening presents and in carving your turkey on Christmas Day. It's 2o'clock in the afternoon. The weather's lovely, and you're headed over the hills and through the woods to grandmother's house, and suddenly you're going to see the inside of a county jail.
Andrew Herreth 5:59
Yeah, that's a different kind of Santa. Yeah. So yeah, right. So, so it's it's important to note that because DWI is an opinion crime, by that we mean the officer has to make an opinion based on his investigation or the traffic stop, or whatever, that that it could affect literally anybody for doing just you know seemingly normal activities, right? Like speeding. I have a bad problem with speeding on the interstate, and that that could put me in in jeopardy of going to jail for DWI.
Andrew Decker 6:40
Right.
Andrew Herreth 6:41
So immediately when an officer sees a traffic violation or sees some reason to pull you over, he has reasonable suspicion to stop you to perform a traffic stop. That dash cam is on. You are being recorded. Hopefully, their audio is working on their on their uniform, their body cams now, those are pretty prevalent throughout the state. Hopefully, those are on. But your that dash camera comes on roughly 30 seconds prior to the officer turning his lights on. So
Andrew Decker 7:15
activating those overhead emergency lights, as they call them in their reports.
Andrew Herreth 7:19
Right. So they're they're constantly recording whenever. whenever whenever an officer is on duty, they just you know the the triggering effect of turning those stoplights on, those red and blues or red and whites, whatever they are. They're red and blues. Red and blues, right? They trigger the that tells the the onboard computer the the that controls the dashcam to to record, start recording that from 30 seconds prior to that event.
Andrew Decker 7:44
Right, and it's interesting. You, we watch those all the time. But if you if you don't, you'll notice it it goes back 30 seconds. There's no sound during that 30 seconds, and then you hear this beep beep. And I know that was loud and annoying, but that's exactly how it is in the video. And suddenly the audio comes on because basically it's picked up from that previous loop to live time recording, and
Andrew Herreth 8:06
and even sometimes an officer can turn those on manually. The the recording or start recording that video manually if he sees, for instance, some weaving on a car, but doesn't want to turn his his traffic lights. Right, he's trying
Andrew Decker 8:20
to determine if this was, hey, somebody's messing with their radio, or are they texting
Andrew Herreth 8:26
or whatever? Well,
Andrew Decker 8:27
texting's an offense. You can't do that. Don't do that.
Andrew Herreth 8:29
That's true.
Andrew Decker 8:30
That's a reason to get pulled over. Messing with your radio is not an offense. Is not an offense. So we're going to go with messing with the radio.
Andrew Herreth 8:38
So okay. So Andrew. Yeah. I. I am driving down the highway. I make a mistake, and I and I cross the lane divider. Come back to my lane. I'm getting pulled over. What is what? Okay, so let's
Andrew Decker 8:57
stop right there. Okay. Oh man, I get so excited on stops. I love probable cause. First of all, is there a you're saying there is a lane divider?
Andrew Herreth 9:05
Yes. So so multi. Let's just say I'm out on the interstate, multi lane highway. There's
Andrew Decker 9:09
an interstate literally about 150 yards from where we're sitting right now. So
Andrew Herreth 9:12
let's assume we're on that one. Okay. Here that
Andrew Decker 9:15
would be I 20 for those of you playing along at home.
Andrew Herreth 9:18
And and I cross the lane divider, right? So the the dotted line,
Andrew Decker 9:23
the the dotted white line, white
Andrew Herreth 9:24
line going down the going down the road. I move, you know, my my passenger side tires move from my lane
Andrew Decker 9:31
because you're in the far left lane because you're speeding.
Andrew Herreth 9:33
Because that's what that's where I that's where I park. Yes, and then I go, you know, I move into the middle lane briefly and go back to the okay.
Andrew Decker 9:41
All right.
Andrew Herreth 9:41
Fast lane.
Andrew Decker 9:42
All right. So, so transportation code. I love the transportation code. It's so so juicy.
Andrew Herreth 9:48
Yeah.
Andrew Decker 9:48
Transportation code five four 5.060 a. You you shout
Andrew Herreth 9:55
specifically. I looked I looked it up before we started.
Andrew Decker 9:58
I told you I. Of the transportation code, you shall drive as nearly as practical within one lane, and if you fail to maintain a lane, that main that that that failure to maintain should be done safely.
Andrew Herreth 10:13
Right.
Andrew Decker 10:14
So they have to prove both that you fail that you not only that you didn't maintain a lane, but that the move was unsafe,
Andrew Herreth 10:23
unsafe for whom?
Andrew Decker 10:25
Well, that's see. See, we've already gotten to a to to to a subjective question, haven't we? What what makes it unsafe?
Andrew Herreth 10:31
Well, I guess that that would
Andrew Decker 10:33
be: is there other traffic time and day?
Andrew Herreth 10:36
What are the weather conditions? Weather conditions. What
Andrew Decker 10:38
were you trying to were you trying to avoid something in the road because, again, nearly as practical. I can't maintain a single lane if there's debris in the road. Right, we've seen couches, chairs, livestock, livestock.
Andrew Herreth 10:51
So I had a motion to suppress on this one time. We're not going to get into the full fact pattern of that, but the officer did say on the stand, "Well, it was unsafe for me, meaning the officer was saying that move put his life in danger. It was unsafe for him, and
Andrew Decker 11:10
wow, I had
Andrew Herreth 11:11
I had him testify as to where he was positioned in relation to the driver. Oh, I was behind him. Okay, and how far? I don't know, 30 to 50 feet. And were you traveling in the same direction? Yes. So no way was he ever going to hit you. He wasn't going to sideswipe you or anything like that. No. Okay. Unless one of you
Andrew Decker 11:28
hit an acceleration pedal or a brake pedal simultaneously as the move.
Andrew Herreth 11:32
Yeah, it was outrageous. And how fast were
Andrew Decker 11:35
they going that the officer was following at 30 to 50 feet?
Andrew Herreth 11:38
Oh, I don't know, man. Okay. See, that'd be see.
Andrew Decker 11:41
I'd I'd I'd love that. No, these are things America wants to know. It
Andrew Herreth 11:43
was it was it wasn't on the interstate. It was like a 40, maybe 30 to 40 mile an hour type road. All right. So
Andrew Decker 11:49
so so a safe distance. Yeah.
Andrew Herreth 11:51
Right. Maybe 30 to 50 is a is a little bit exaggerated, but regardless, that motion to suppress was granted, thankfully. Good
Andrew Decker 11:59
for you. Yeah. Good for you, mr. Herreth.
Andrew Herreth 12:01
So, okay, okay,
Andrew Decker 12:02
hold on, hold on. I'm stopping right there. This is an aside. Several of my friends who I actually know have said all they can now hear. If you if you heard episode two, Andrew Herreth said he doesn't have a lisp, but now I have friends coming up going. So, doth Andrew Herreth have a lisp? And for those of you, anyone who has a speech impediment, I deeply apologize. Yeah, but but sorry, it just struck me, and I had. I find
Andrew Herreth 12:26
myself like in my career having to enunciate words more, like before and after I say my last name, because it is H E R R E T H. That's a th sound, not a. Right, it's not Herreth. Sorry,
Andrew Decker 12:40
that has nothing to do with we're saying, but I just had to go there.
Andrew Herreth 12:44
Okay, I forgot where we were at. So anyway, that motion that motion
Andrew Decker 12:48
to suppress got granted.
Andrew Herreth 12:49
Well, it did, and that's a good thing for my client. But and and bravo to the to the judge here who who told the state that that is not okay to be arresting people for for something like that, or pulling them over for a minuscule reason like that, not even a violation of the transportation code. So, let's say I'm pulled over,
Andrew Decker 13:12
right,
Andrew Herreth 13:12
for the weaving. Okay, let's call it weaving. Okay, all right, because sometimes they'll say
Andrew Decker 13:17
weaving within a lane. Well, that's not a violation, but but we have seen people get pulled over for that.
Andrew Herreth 13:22
Of course, officers at my window. What what are the like? What what do we see in every single offense report that an officer is going to note at that point in time during the encounter?
Andrew Decker 13:34
These are classics. You and I have talked about this just a few minutes ago prior to to recording. The first thing they're going to say is I observed glassy red eyes. Well, it's 1o'clock in the morning,
Andrew Herreth 13:47
right?
Andrew Decker 13:47
And in Texas, 10 months out of the year are allergy season. The other two months, you're lying. It's still allergy season. So glassy red eyes means I've been awake a long time and I have allergies, but they'll list it every time.
Andrew Herreth 14:02
Sure,
Andrew Decker 14:02
they'll list that you have slurred speech. Well, I've never heard you speak, and your your name happens to be Herreth. Yeah, and it's not a slurred speech; it's actually your name. And then they'll say, and and I and I had I noticed a smell of alcohol on their breath or their person,
Andrew Herreth 14:21
and typically they're going to note about that that smell of alcohol that it's a strong odor of an alcoholic. Right.
Andrew Decker 14:26
Occasionally, occasionally you'll get lucky enough for it to say a slight or moderate.
Andrew Herreth 14:30
Yeah.
Andrew Decker 14:32
But but just let's just play devil's advocate. Regardless of how much you had to drink, if you were at an event and someone spilled a beer on you,
Andrew Herreth 14:40
right, exactly,
Andrew Decker 14:41
and you head home. You're gonna reek of beer because that smell grows for a while before it
Andrew Herreth 14:46
starts going
Andrew Decker 14:47
away. So I'm driving home and I smell of beer.
Andrew Herreth 14:51
Yeah, and I may not
Andrew Decker 14:52
have had a drink.
Andrew Herreth 14:53
Exactly, not affecting you in any way.
Andrew Decker 14:56
Minus that I'm uncomfortable because my clothes are wet and smell of smell
Andrew Herreth 14:59
like beer. Right. And oh, that's such an awful smell too. It's like it's like wet dog smell. It just you cannot get it out, right? No, no.
Andrew Herreth 15:06
And and the the other problem with I think the strong odor of an alcoholic beverage is because this is an opinion crime. The officer at that moment has already made up his mind.
Andrew Decker 15:18
Yeah, they've they've established an opinion that that with those things, you are likely a candidate for being DWI if they haven't already made the determination in their own mind. And then they'll ask for something like, "I need your your driver's license and your insurance. On TV, they'll say in registration, but in Texas, our registration is actually on the front of the car. They don't have to ask for that, so they'll ask for your driver's license and insurance. And inevitably, somebody will kind of fiddle in their wallet, not finding their driver's license full out, even though it's kind of the thing you can see easily.
Andrew Herreth 15:55
Yeah.
Andrew Decker 15:55
Or they have to search their car for their insurance. Well, you know, where do I keep? Is it is it in the milk console? Is it in the glove box? Is it in the? And so they do that, and they say, well, they couldn't find their insurance quickly.
Andrew Herreth 16:07
Well, and it's it potentially is late at night. Maybe you're tired. You've got a fully armed man standing right outside your window, demanding these things. Going to be a little nervous,
Andrew Decker 16:16
right? It has. Is that really indicative of of being intoxicated, or is that indicative of I'm nervous and I don't often? How often do I find my insurance while I'm out? Either I'm replacing my card, or I'm not looking for my insurance. So it's not something I get to every day. I don't get my driver's license out every day, either
Andrew Herreth 16:42
right, right.
Andrew Decker 16:44
But those will be reasons that they'll go. Okay, so when these things happened, I said the officer will say, "I'd like for you to step back here to the back of back of your car in front of my car.
Andrew Herreth 16:57
Right. Why is he doing that?
Andrew Decker 16:58
Well, he's doing that partly so that everything can be more clearly seen on his video camera,
Andrew Herreth 17:06
right? Okay, that's something that we want. We want we want transparency. We want everybody able to see what happened.
Andrew Decker 17:11
Exactly, and and it protects. It really protects the officer and our client. And to be fair, more than once, I've had I've had clients come in and go, mr. Decker, I did great on this. You know, I I don't know why I stopped and I watched the video, and I go, watch him in my office, and I turn the the computer screen around, I push play, and I said, we're only going to watch a couple of minutes, and after a couple minutes of truly two or three minutes out of like 15 or 20, I stop it and I said, do you need to see more? And they're like, no, mr. Decker.
Andrew Herreth 17:40
Yeah,
Andrew Decker 17:41
they they they are they are either belligerent, they they they're mean to the cop, or they're staggering and really are slurred. They they really are probably intoxicated, and they're acting like a jerk, and or they're acting like a jerk. So I can't we can't go to a jury and go, hey, he's not drunk because it's going to be hard for that jury to get past. You were a jerk,
Andrew Herreth 18:05
yeah,
Andrew Decker 18:06
right? Yeah, right. And that's not a crime, but but it's hard. We're emotional people. We don't like to see officers, law enforcement treated with disrespect because they're trying to do their job, and so naturally a jury is going to come to the defense of the person who's who's being ill-treated.
Andrew Herreth 18:23
Yeah, so you know that's an important point. A lot of times, defense attorneys get a bad rap. You know, like we're just out to talk bad about police officers or do anything that we can to get our clients off the case. You know, prevent our clients from taking responsibility. A lot of times, that's just not true. We want to make sure that the state can prove their case, that everything is happening legally, and everything's on the up and up. You know, one of my favorite. Well, it's just I think a trial tactic for any defense attorney to use is is questioning the quality of the witness's memory, right? So we always say like maybe this officer, maybe this other witness misremembered something, and quite often that happens with our own clients. So these videos really do help, and now they have body cams, which I think provide a different perspective, sometimes good, sometimes bad for our clients. But I think the more transparency, the more videos, the more audio that we have, the better for for our cases. Yeah, the
Andrew Decker 19:27
hard the hard part is it just means a whole lot more work of watching videos that become in our world kind of monotonous. Sure, of course. So so they so they take them to the back of the car so that all all can be on that on that dashcam video, and the officer is going to say to the person who's been pulled over, "We just want to do a few tests, and they say to make sure you're safe to drive. I think that might be the most overused line in America.
Andrew Herreth 19:57
And do you think that because they're being truthful at that moment?
Andrew Decker 20:01
No, and I'm not saying they're lying. I'm not saying they're being untruthful, but it's not what they're doing. They're not making sure you're safe to drive. They didn't get you out of your car to make sure you're okay to drive. They got you out of your car to do a DWI investigation. Those are different things,
Andrew Herreth 20:17
right?
Andrew Decker 20:17
But I think that it makes people feel a little more at ease to say, okay, well, let's take the test because I know I'm safe to drive. Why? I've been driving, I've been driving for a while, and I'm almost home. I know I'm safe to drive.
Andrew Herreth 20:33
Right. Yeah.
Andrew Decker 20:34
Right.
Andrew Herreth 20:34
Yeah. Okay. So, officer pulls you out of the car back to the back of my car in front of the in front of his patrol car. What's going to happen next, right?
Andrew Decker 20:46
Okay, so the first thing the officer is going to do is say, "Hey, do you have do you wear glasses, contacts? They're about to do what we call the HGN test. What does that
Andrew Herreth 20:55
mean?
Andrew Decker 20:57
Horizontal gaze nystagmus test. Did I say that all correctly? Yes. We call it we call it HGN for a reason. It's what I call the eye test. I said, did they do the eye test? And everybody goes, oh yeah. And I said they held the pin, and they go, okay. And I look over here, and I look over here, and then they do it back and forth a few times, and and and everyone goes, yeah, I did that. I did that great. How do I know it did that great? Because I could see the pin the whole time.
Andrew Herreth 21:20
Right. Right. Now that's not what they're looking for. That's not
Andrew Decker 21:22
right. The officer is looking for your eyes shaking out on the edge on either side. The hard part is, most of the time that test, they're going to say your eyes shook on both side, both eyes, both ends, maybe even up and down, which are actually part of the HGN test, but they've started to include it because notice it's it's horizontal gaze nystagmus, but they've added a vertical, which is not part of the test. So I don't know why they do it, but but they'll throw it in. And I've only seen one body cam where it was clear enough where I could see the eyes.
Andrew Herreth 22:00
Yeah, most of the time we're not able to recreate what the officer actually saw on the night in question in court.
Andrew Decker 22:06
Right, not clear enough to be able to see if those eyes are actually shaking.
Andrew Herreth 22:10
Right,
Andrew Decker 22:10
and we definitely can't see. We can't. We can't smell what he says he smelled.
Andrew Herreth 22:16
Right. Yeah.
Andrew Decker 22:17
So so we're at a little bit of a disadvantage there, but so I really focus on the next two tests, the standard field sobriety test, and there's two of them basically.
Andrew Herreth 22:28
Right before we move in there, but it's important to note on the HGN that it's the involuntary movement of the eyes. They're going to say the intoxication was affecting you to the point that your eye muscles were weakened, and so your eye was shaking, and really the. what's good for the jury if we can't see your eyes is just showing a jury like, well, look, they're they're standing straight, they're not swaying, they're not they're not falling down. Hopefully, you're not swaying or falling down at that moment. But but just your again,
Andrew Decker 22:57
that'd be when I show them the video and go, we don't want anyone to ever see this video ever again. Let's let's let's find a plea deal.
Andrew Herreth 23:04
So so that's an important part of that test. Even if we can't see the eye, we still want to make sure that the subject is on video while that test is is right.
Andrew Decker 23:14
Because I've actually seen one, and again, it's an officer that I recognize their name. I've seen their work before because they do, they're they're a DWI basically investigator for city of Fort or for the city of Fort Worth, and he didn't properly do the the initial basically making sure that he was qualified to take the test, and so so it went to trial, and I used that against the officer to say you didn't even qualify him properly, and he couldn't. You know, I couldn't really see the eyes, but I could count the number of passes and found out that it just didn't work. And so we,
Andrew Herreth 23:50
yeah, that test still has it's standardized. It still has to be done in a prescribed manner for those results to be. You can't you can't compress
Andrew Decker 23:58
them.
Andrew Herreth 23:58
Correct.
Andrew Decker 23:58
And so and and he he's a good officer. It was a mistake. I don't think that that it was somehow he was trying to trying to
Andrew Herreth 24:06
railroad your client. No, I think you
Andrew Decker 24:08
made a mistake. It happens, but to the benefit of my client that night.
Andrew Herreth 24:12
Yeah. All right. So what's the next one usually that we see, or I guess the two walking tests. So first one, you want to talk about the walk and turn?
Andrew Decker 24:20
Yeah. Well, I. some people call it the walk and turn. Some people call it walk the line.
Andrew Herreth 24:25
Walk the line. I call
Andrew Decker 24:26
it walk the line. A W T L. So the officer is going to give you some instructions. He's going to say stand with your right foot in front of your left foot, or usually right in front of left or left in front of right. Doesn't matter really. He's going to say stand like this, and stay in that position while I give you the instructions for the test, and he's then going to explain. You're going to take nine heel to toe steps down a straight line, and and sometimes you're in a parking lot or on the side of a road and you can see a line, and other times he'll say, imagine a line from here to here. I like the line better. Well,
Andrew Herreth 25:02
I but my my imaginary line may not be
Andrew Decker 25:05
straight.
Andrew Herreth 25:06
Yeah, it's it curves. So so I prefer my imaginary line.
Andrew Decker 25:09
Right, right. And we've all heard that argument. But they'll say take nine heel to toe steps, and at the end you're going to take several little steps, turn around and come back again. Nine heel to toe steps. Count each step out loud, and he gives an example. And I say the officers that he 90% of the time it is, and they do three, and they'll say, "I'm going to take three steps and do the turn and three back. You're going to do nine, and the whole time you're standing there in this awkward position of one foot in front of the other, okay, which is a little out of balance. It's not a natural standing position, so so you sway a little bit, and they just went one.
Andrew Herreth 25:53
Yeah, well, the you know they're not they're not telling you what they're looking for either, right? So when they're counting, they're counting either internally or to themselves, they're not letting you know.
Andrew Decker 26:03
That was one.
Andrew Herreth 26:04
Yeah,
Andrew Decker 26:04
you get uncomfortable in that position, or you lose your bounce a little bit. So you take a normal standard standing position.
Andrew Herreth 26:10
Right.
Andrew Decker 26:11
Well, why I'm watching the officer do his his version.
Andrew Herreth 26:13
Natural. Right. Right.
Andrew Decker 26:14
And you know, and it's it's about a takes about a minute for him to explain it all, and so you you you assume a natural let's say at ease position, and he he or she just went in their mind two. Now the only there are six clues and two of them equal a fail. So you just failed and you've never taken a step.
Andrew Herreth 26:39
Yeah. So so so yeah so the decision point is two, right? So they only need two on that. They're gonna say they're gonna be they're gonna tell a jury, you know, this person out of however many clues, eight clues, they had two, which indicates intoxication,
Andrew Decker 26:57
right? And then and then you start actually taking your steps, right?
Andrew Herreth 27:00
Yeah.
Andrew Decker 27:00
So so by heel to toe, they're supposed to be within like an inch, inch and a half.
Andrew Herreth 27:06
Right.
Andrew Decker 27:06
Often we can't see how close they are, and the officer will say that they failed to meet heel to toe. Well, the officer didn't tell you it has to truly be almost exactly heel to toe, and most officers will count a neg will count against you if they're not heel to toe. But there's really actually in the code a little bit of a variance.
Andrew Herreth 27:23
Right. Yeah.
Andrew Decker 27:24
They'll say you step if you step off the line. That's a clue. If you when you get to the end, and this is something I'll ask people when they when they do a turn and it looks like a military or a band turn, they put one fit and they and they pivot over both and they come back and it's like a marching style. And I'll say, "Were you in the high school band? And they'll be like, "Yeah, how'd you know? And I'm like, "I watched your turn.
Andrew Herreth 27:45
Yeah.
Andrew Decker 27:45
Or they'll be like, "No, but I was in the military. And I'm like, "Oh, okay. I've seen a lady do a pirouette, like up on one toe, do a do do 180 plant back exactly on the line, and the officer counted her as a negative on that, and literally, I asked the officer which is harder, the little steps or to do what she did, and he goes, "Well, she didn't follow the directions. That's a clue.
Andrew Herreth 28:10
Yeah, but this seems to me like, especially on that improper turn, that it's a little bit of like spirit of the law versus letter of the law. Like, did the person fall down on their face when they were turning?
Andrew Decker 28:20
No, and they did a harder turn. Right, they did an athletic move.
Andrew Herreth 28:24
Some of this stuff makes no sense, and we're trying to, you know, people, normal people who have no criminal history, are now going to have a conviction potentially because they did not turn correctly, right? Or outrageous,
Andrew Decker 28:38
or they didn't count their steps out loud, even though you can see it was nine, or they went to 10. Why? Because we more naturally go to 10 than nine.
Andrew Herreth 28:47
Yeah.
Andrew Decker 28:48
Or they stop. They pause. Well, if I'm walking the line and trying to maintain it, and I pause to catch that, that's a natural reaction,
Andrew Herreth 28:56
right?
Andrew Decker 28:57
So, so, so that's the walk of the line, and basically they need two clues out of, depending on which what you read, six or eight, and if you get three, you're definitely they're definitely saying you're saying you failed.
Andrew Herreth 29:09
Yeah.
Andrew Decker 29:10
Then the next test.
Andrew Herreth 29:13
Yeah, the one leg stand.
Andrew Decker 29:14
The one leg stand. They'll say, you know, you're going to stand on one leg, and they give you some instructions.
Andrew Herreth 29:23
So on this one, yeah, they basically during the the instruction phase of this test, you you just stand there, stand straight, feet together, place your arms down at your side, and then they'll tell you maintain that position until you're told to do otherwise. Now it's important to to understand here. While you're standing there and the officer's looking down at his foot, and he looks so perfect, like he's a he's a gymnast with and he does it. He does
Andrew Decker 29:54
it for about three or four seconds. Yeah,
Andrew Herreth 29:55
yeah.
Andrew Decker 29:56
And you're going to do it for 20 to 30 seconds.
Andrew Herreth 29:59
Yeah. 30 seconds to oh, it's it anyway. So when this when this officer is standing there on the walk and turn on the one leg stand doing these this gymnastics routine, he looks great. Why? Because he does this every single day. This is his job. He's been trained to do it. He goes to school to do it, and he does it in his in his line of work, every single day. Why do police departments have a DWI officer, a an officer who they call out on all DWI stops? Because the other officers don't know how to do it. They can't stand there with one leg in the in the air like this other officer can, who does this routinely every single day, right? So, in front of a jury, we're looking at the the difference between you, who's an amateur, or me, who's an amateur at this, and an officer who is a complete professional,
Andrew Decker 30:53
right? So, so let's let's talk about that just a little bit. There are actually some qualifications, especially on the one leg stand, age, your there's actually kind of an age limit. Yeah, you know they've kind of said about anything over 60. Really, it's not appropriate. If you've ever had a knee or hip problem,
Andrew Herreth 31:14
back problems, back knee problems, health problems, that would like your balance.
Andrew Decker 31:18
Or if you are, they say severely overweight.
Andrew Herreth 31:22
Yeah.
Andrew Decker 31:22
So so those are all things that can make it where you don't even qualify, and yet officers will often ask them to take the test.
Andrew Herreth 31:32
I had an officer tell me once that overweight people were had better balance than people who were not overweight because the extra fat surrounded their like core, their their center of balance, and it was harder to knock them knock them over.
Andrew Decker 31:48
So, so we're back to that heavy subject we started with. Yeah,
Andrew Herreth 31:50
yeah. Well, I'm not looking at you, bud. So all right, all right. But but
Andrew Decker 31:54
but those are the things that they're watching for the the standard field sobriety test, and I want to stop here and say, I've literally done these tests with some of my running friends after a Saturday morning run of you know about eight miles. Did them in a parking lot, and three out of the five these are these are elite level athletes failed the tests after their run. They were a little dehydrated at this point, but mostly they didn't know what I was watching for.
Andrew Herreth 32:24
Right.
Andrew Decker 32:25
So, so the odds of you passing this test are about 40% on a good day.
Andrew Herreth 32:34
Right. Yeah. Yeah. And
Andrew Decker 32:36
that's and that's not assuming that you're stressed. They they weren't in fear of being arrested, they weren't worried that this was going to go against them. It was just me showing some friends how easy it is. Well, how easy the tests are, but how easy it is to fail because you don't know what the officer is looking for.
Andrew Herreth 32:52
Yeah. So this test has four clues. Decision point is two. So the decision point on this one is the same as the walking, right? Where you're going nine steps down, nine steps back. That's 18 steps, and that that
Andrew Decker 33:04
could be that you sway.
Andrew Herreth 33:06
Yeah,
Andrew Decker 33:06
you lift your hands more than six inches from your from your body.
Andrew Herreth 33:10
Right, you put your you put your foot
Andrew Decker 33:13
down. You hop. Right, those those are the main ones. And then and then also if you don't count out loud or if you miscount, or you don't say 1001 1002 you just say one, two.
Andrew Herreth 33:27
Right.
Andrew Decker 33:27
That's counting wrong. And so, so there are just lots of things they're looking for. There are many more decisions. There are many more possibilities of making a mistake than four.
Andrew Herreth 33:38
Yeah.
Andrew Decker 33:38
And and yet two, two. As I've told several people in both these tests, they're really about 30 points.
Andrew Herreth 33:46
Yeah,
Andrew Decker 33:48
and right when I was in junior high school, and that's been a long time ago, but in junior high school, you know, we had to grade each other's papers on math quizzes. If if I missed two out of out of 30, I could miss three out of 30, and still get an A.
Andrew Herreth 34:02
Yeah,
Andrew Decker 34:03
but DPS says that the Texas state law says that two out of 30 missing two out of 30 is a fail. You have failed the test.
Andrew Herreth 34:14
That's right. Indicates intoxication.
Andrew Decker 34:16
Indicates intoxication.
Andrew Herreth 34:18
The danger becomes that you then have a conviction that follows you for the rest of your life, which we are going to talk about more in part two of our series here. This this episode's getting a little long. It's because you're
Andrew Decker 34:31
long-winded.
Andrew Herreth 34:32
I I just get so fired up about about these cases. But those are the SFSTs, our standardized field sobriety tests, the horizontal gaze nystagmus, the eye test, the walk and turn or walk the line test, the one leg stand test. Those are going to be the main part of a DWI investigation from an officer. So next time when we get when we drop the next episode, part two, we'll talk. About what happens after these tests? Right. Well,
Andrew Decker 35:03
we may come back and catch one or two things I have in my notes we didn't catch. But remember, please don't drink and drive. It is not worth it. It is not worth the danger to other people on the road. It's not worth the money you're going to pay to Andrew or myself or some other attorney in your area. It's not worth the the the cost on your insurance and the embarrassment. Don't don't don't drink and drive.
Andrew Herreth 35:27
Don't drink and drive. You are arrested, charged with DWI. Give us a call. Contact us on our website, TexasCrimDefense.com, and while you're at it, give us a rating and review on iTunes or wherever you're listening to this. Again, this is Andrew and Andrew. You've been listening to Texas Criminal Defense Podcast. We are going to come back with part two, where we talk more about DWI law, how it could affect you, what you're looking at. Until then, y'all stay safe out there, and we'll talk to you next
Unknown Speaker 36:02
time.