Field Sobriety Tests: Do I have the right to refuse?

Standard to every DUI investigation, is the officer’s expectation that you will participate in field sobriety tests (FSTs). FSTs are conducted pre-arrest and there is no legal penalty for declining to participate in them. They often include a series of physical tests, as well as a preliminary breath test (PAS) to determine your Blood Alcohol Content (BAC) prior to arrest. Many people don’t understand they are not required to perform FSTs. Moreover, the officer will approach you and tell you what he wants you to do. He is unlikely to ask if you want to perform these tests or tell you that you have a choice. Although an officer may suggest your performance might influence his decision to arrest you, this is not borne out by our experience. Instead, an officer who has already determined you may be intoxicated is simply seeking more support for that decision. It is rare, if not unheard of, that your performance will change the officer’s mind or prevent you from being arrested for driving under the influence.

On the other hand, your performance will be used against you as evidence of your intoxication in court and at your DMV license suspension hearing. Officers are making a subjective determination and therefore typically report FSTs in the worst possible light in an effort to support their original theory that you are under the influence. Most FSTs are difficult when sober, or can be interpreted in different ways. The fact of the matter is, once an officer has asked you to conduct FSTs, they have moved into the evidence collection stage. By the time the officer writes his report, an individual with a .06 BAC may well come across as a stumbling mess, reeking of alcohol, with red-watery eyes, and zero coordination. Their goal at that point is to substantiate an arrest and gain a conviction.

The only field sobriety test that might prevent your arrest at this point is the preliminary breath test (taken before the arrest), which obviously should be declined unless you are sure you are under a .08 (as in you haven’t been drinking at all). Generally, if being investigated for DUI, you should politely decline all field sobriety tests and questions.

However, it is very important to remember that after arrest, a blood or breath test is required. If you refuse to provide a test, this will result in a one year suspension of your license, whether you are under the influence of alcohol or not. This is also the case even if after you first refuse, you then change your mind and allow them to perform the test.

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