Field Sobriety Tests

When stopped on suspicion of DUI in California or any other state, officers may ask you to take a field sobriety test. This test is conducted before an arrest for DUI an/or DWI. Its purpose is to help officers determine if you are in fact driving under the influence.

You are highly likely to be asked to take a field sobriety test. Not all officers are equipped with breath analyzers. Many officers prefer the field sobriety test because it can indicate impairment from drug use as well as alcohol, which a breath test cannot.

Conducted at the roadside, the field sobriety test involves a series of physical maneuvers that in theory will be easy if you are legally sober and difficult if you are not. For instance, touching your nose while looking up at the sky, standing on one leg, and so on.

It is up to the police officer to decide if you have passed or failed the field sobriety test. Depending on their assessment, they will decide to arrest you for DUI and/or DWI or release you.

Can you refuse a field sobriety test?

In California and all other US states field sobriety tests are 100% voluntarily, unless you are under 21 or on parole.

If you are over 21 and not on parole you have the right to refuse and there are no penalties whatsoever for refusing to take a field sobriety test.

Should you refuse? Yes, absolutely.

The field sobriety test is seriously flawed:

• It is not in any way a scientific test and results are notoriously unreliable. For instance, an extremely nervous but legally sober driver may be judged as intoxicated as a confident but over-the-limit driver.
• It is almost certain you will fail the field sobriety test. Your performance will be subject to the personal opinion and judgment of a police officer who already believes you are intoxicated and is therefore biased against you.
• If (when) you fail the test you will definately be arrested for DUI and/or DWI.

What will happen if you refuse the test?

If you do not take the field sobriety test (and also refuse a roadside breath test) the officer cannot use a failed test as probable cause for an arrest.

Instead, they must decide if their “observations” amount to sufficient probable cause for an arrest. For instance, aggressive and hostile behavior, the odor of alcohol, and self-incriminating responses to questions. (This is why how you conduct yourself at a DUI traffic stop is important.)

If they decide that they do they will arrest you. However, you will be in a stronger position to fight a conviction for DUI and/or DWI than if you had been arrested for failing the test. (Remember, an arrest is not a conviction). Here’s why:

Once arrested (and not before) you will be required by law (in all states) to take a blood alcohol (BAC) test at the police station. However, your DUI lawyer can contest whether the officer’s observations did in fact provide sufficient probable cause for the arrest. If successful in this challenge (and there is a good chance they will be), the results of the BAC test will be inadmissible, even if failed, and your case dismissed.

Your DUI lawyer will not have the opportunity to defend you in this way if you have provided clear probable cause by taking and failing the test.

How to refuse the field sobriety test

Police officers seldom advise drivers that they have the right to refuse a field sobriety test. Remain confident that you do have the right to refuse.

However, do not provoke the officer by aggressively asserting your rights. Hostile and uncooperative behavior can be considered consciousness of guilt and contribute to an officer’s decision that, test or no test, they have probable cause to make an arrest for DUI and/or DWI.

A less confrontational approach is to ask the officer (politely) if you have the right to refuse the test, even though you know the answer already. When they tell you that you do, politely inform them that you choose not to take the test.

• Disregard any attempts by the police officer to make you feel that you are not acting wisely by refusing the test.
• Do not answer questions about why you do not want to take the test. Tell the officer that you simply choose not to take the test.
• Do not volunteer or agree to take the roadside breath test instead.

Get an overview of all your DUI test rights: see Submit to a DUI Test or Refuse?

Copyright 2008 Caroline Mackenzie