Refuse Roadside Sobriety Tests

If officers have reasonable cause to suspect you of drunk driving, you will be stopped and assessed for signs of intoxication. These may include the smell of alcohol on your breath, your speech, behavior and physical responses.

Police offers also have two two tests that can conducted at the roadside to assess the presence and extent of impairment due to alcohol and/or drugs. These are the standardized field sobriety test and preliminary alcohol screening (PAS) test – a roadside breath test.

Their purpose is to obtain or confirm probable cause for a DUI / DWI arrest.

For this reason both types of roadside tests are voluntary in most states, with no penalties for refusal.

An exception is MONTANA where there are penalties for refusing a PAS test.

DUI/DWI lawyers advise people to exercise their right to refuse these roadside tests, to avoid providing officers with probable cause for a DUI / DWI arrest. If you have not taken the roadside tests it will be easier to defend you and obtain an acquittal or lesser penalties.

As well as refusing roadside sobriety tests there are other steps you should take to avoid providing officers with probable cause for a DUI / DWI arrest.

Refuse to be Drawn into “Friendly Conversation”

One of the simplest ways for officers to obtain probable cause for a DUI / DWI arrest is simply to ask if you have had anything to drink, where you have been and so forth. It is often advised that you refuse to answer any questions beyond those which you are obliged to answer, such as questions regarding your identity.

However, this is extremely difficult to do in practice and most DUI lawyers and state troopers agree that it tends to heighten suspicion and, poorly exercised, silence can appear uncooperative and hostile in a way that may be interpreted as a sign of intoxication.

In short, unless you are certain that you will be arrested – in which case silence serves as damage control – you are best advised to take the middle road. Try your best to appear calm and confident. Answer questions politely but briefly. Do not attempt to “win the officers over” by jokes and smiles. Officers are highly-trained in evaluating responses in terms of behavior and emotions as well as words. The shorter your answers are, the less they are able to do this.

Refuse Roadside Sobriety Tests

As mentioned above, the officer may ask you to take one or both of two tests at the roadside – the field sobriety test (FST) and/or a preliminary alcohol screening (PAS) test – a breathalyzer test.

If you are asked to take one of these tests it is almost certain that the officer has already decided to arrest you, regardless of whether you take them or not. Your driving prior to the traffic stop combined with your responses have failed to convince the officer of your sobriety. The purpose of requesting you take a roadside test is to provide the officer with additional probable cause for an arrest – and additional evidence that can be used against you in court.

You are most likely to be asked to take the FST because not all officers carry portable breathalyzers. Even if you are confident of passing the test, refuse to take it. The FST is seriously flawed – it is possible to fail the test even if you are 100% sober.

Roadside breath tests are also unreliable, conducted on portable machines that for many reasons are not an accurate indicator of blood alcohol content (BAC) levels. (This is one of several ways in which breath tests at the roadside are not to be confused with chemical BAC tests conducted with breathalyzers at the police station.)

Police officers should advise you up front of your right to refuse these roadside tests in which case refusing them will be easy – simply respond that you would like to exercise your right of refusal. In practice, most officers don’t inform people of their rights. In these cases the “gentlest” approach to refusal is to ask the officer if you have the right to refuse (even though you know the answer), and then choose to do so.

Do not be persuaded by officers that refusing a roadside sobriety test will act against you in court. What will act against you in court is videotaped evidence of you failing a field sobriety test, and readings from inaccurate portable breathalyzers.