Undermining the WAT In A DWI Trial

In the United States, the defendant does not have to “prove” anything in criminal court. Instead, to escape punishment, the defendant only needs to create a reasonable doubt in one juror’s mind. The jury can only convict on a unanimous verdict in Texas.

So, rather than completely discrediting the walk-and-turn test, and any other evidence in the case, a DWI defense attorney needs to only cast a reasonable doubt (as opposed to an imaginary or wishful doubt) on the test’s outcome.

Elements of the Heel-to-Toe Walk Test

Peace officers in the field are supposed to find a level, reasonably well-lit place with an actual line, such as a parking space stripe. It’s almost impossible for anyone, drunk or sober, to walk an imaginary line heel-to-toe without wavering or stumbling. Officers should also give women a chance to remove high-heel shoes. Typically, these women aren’t told that the test is much harder to perform in heels. Moreover, that may not be an option at all, if the weather is damp or cold.

After the defendant starts the test, which usually consists of nine steps in either direction, the officer looks for intoxication clues, like:

  • Using hands or arms for balance,
  • Not walking exactly heel to toe,
  • Swaying, or
  • Stumbling.

There is a mental component to this test as well, since most intoxicated people cannot concentrate very well and therefore cannot complete a divided attention test. Mental clues include:

  • Beginning before the instructions are over,
  • Starting with the wrong foot, and
  • Taking the incorrect number of steps.

Typically, these “clues” are very subtle. For example, the officer usually says that the defendant used arms for balance based on a slight elevation of the hands. Yet the score is the same whether the defendant raised a hand for a split second or extended her arms like a tightrope walker. That’s one of the ways to challenge the results.

Questioning the WAT

The real-or-imaginary-line discussion earlier is not the only challenge area in the test conditions. In the field, cars normally whiz past the defendant and the sky is nearly always dark. It’s not easy to concentrate on a test under these conditions, especially one that’s inherently hard to complete.

Moreover, some individuals have a hard time understanding the instructions. Many non-native English speakers have very good language skills in quiet rooms and in familiar topic areas. But in a pressure-packed and unfamiliar environment, these language skills often waiver and the officer cannot compensate.

Finally, there is almost no peer-reviewed literature which supports the scientific validity of the walk-and-turn. So, the link between the inability to walk a straight line and alcohol intoxication is little more than an educated guess.

Reach Out to an Assertive Attorney

The WAT may be a somewhat reliable test, but it is arguably not reliable beyond a reasonable doubt. For a free consultation with an experienced criminal defense lawyer in Houston, contact Jim Medley Defense Lawyer.