You’re leaving the bar or a friend’s house after a few drinks. In no way do you feel intoxicated. As you’re driving home, you switch lanes to exit the freeway and see flashing red and blue lights in the rearview mirror. A police officer approaches your window, says that he smells alcohol on your breath, and asks how much you’ve had to drink…
He then asks you to step out of the vehicle and perform some field sobriety tests. What do you do???
Can I refuse a field sobriety test?
Yes! You can always refuse to perform a field sobriety test (FST) when you get pulled over. Standardized field sobriety tests are:
- HGN (i.e. follow the pen with your eyes)
- Walk and Turn (i.e. walking in a straight-line test)
- One-legged Stand (i.e. balance on one-foot test)
These three tests are admissible evidence against you in court. You are in your legal rights to refuse one or all of these FST’s. However, refusing to perform FST’s does NOT mean you won’t be spending the night in jail. As the old cop saying goes “you can beat the charge, but you can’t beat the ride.”
Should I refuse?
In my opinion, YES, you should always refuse to do field sobriety tests. Especially, if you think your BAC is under a .08. Why??
Because almost always a police officer will say you failed your FST’s. These tests can be very subjective and a police officer that is well trained in FST’s could make a sober person look drunk. Remember, if a police officer is asking you to do FST’s then he already assumes you’re intoxicated. Why perform a test for someone who’s expecting you to fail?
Furthermore, field sobriety tests are normally recorded in order to be used against you in court. Which means a video of you failing to walk in a straight line can be used against you even if your breath test is UNDER a .08 or completely suppressed. Don’t give the prosecutor any more ammo to use against you than they will already have.
What happens after I refuse?
If a police officer is asking you to do FST’s then it’s because he suspects you of Driving While Intoxicated (DWI). This could be from drugs or alcohol. More importantly, this means he probably already has the “probable cause” needed to arrest you. The most common reasons for probable cause are:
- Smell of alcohol on breath
- Red glossy eyes
- Slurred speech
Any one of these above reasons is likely enough probable cause to arrest you. Thus, after refusing your FST’s, you can basically expect a back-seat ride to the police station to follow. Once there you will be read your rights and asked to give a breath sample, aka “to blow”. If you refuse to blow, then they will get a warrant to draw your blood. Either way, you are likely spending the night in jail. Embrace that knowledge and remember, refusing FST’s isn’t a get out of jail free card, but it could help your case in the long run.
The Field Sobriety Test and the breath/blood test are the two main weapons the State will use to find you guilty of a DWI. Don’t give them the opportunity to use your inability to stand on one foot against you. Just say “no.” After all, if the breath/blood test goes wrong, then there won’t be much evidence against you without any FST’s.
You never know when you’re going to have two drinks at dinner and you never know when you’re going to get pulled over. Therefore, you might as well know what to do if these two things happen at the same time. Drive safe!