Criminal Defense Blog

Should You Consent To Take Field Sobriety Tests- Important Considerations

  • November 9, 2012
  • Adam Ferezy
  • Comments Off on Should You Consent To Take Field Sobriety Tests- Important Considerations

 Many people ask whether they should submit to field sobriety tests if they’re ever pulled over by the police after an evening of merriment.  Here are some things that you should consider in deciding whether or not to perform the tests being requested.

 

Sobriety Tests

 There are various types of field sobriety “tests”. These include: HGN or horizontal gaze nystagmus test, heel-to-toe test, finger-to-nose test, Rhomberg balance test, and the alphabet  test. All of these “tests” are done to determine if you are drunk (impaired); and thus, incapable of driving properly. 

 With respect to each of these tests, the Officer’s opinion of how you performed each tests will be recorded and used as evidence against you at trial.  These are different from chemical tests, like the blood, urine and breath tests, that are used to objectively and scientifically determine whether your blood alcohol content is below or above the legal limit. 

 Often, field-sobriety tests are video-taped so that, if you are charged with DUI, a future jury will have an opportunity to make an independent assessment of how you have performed on those tests.  But, sometimes the tests are not video-taped for independent assessment. In those instances, an officer will undoubtedly testify that you failed one or more of the tests.  Your skilled attorney will then present to the jury the subjectivity and weakness of the tests and the Officer’s assessment of your performance.

 Refusing Field Sobriety Tests

 You have the right to refuse field sobriety tests. The likely-hood is that you will be arrested for DUI if you do refuse.  If you do choose to refuse, always be polite and respectful.  Remember that the officer will be writing a comprehensive report about the incident, and this document will be used in court in case you’re charged with DUI.  Rudeness can be interpreted as behavior consistent with intoxication. 

 There are several very important issues to keep in mind once you refuse to take the field sobriety tests. Unlike the chemical test, where refusal to submit may have serious consequences, (including license suspension and even additional criminal charges) you are not legally required to take any FSTs. Some officers will incorrectly state that you are required to take the tests and will even direct you to the language at the bottom of your Driver’s License that says, “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” While a test of your breath, urine or blood may be required by law, there has never been a requirement that you take the FSTs. Officers will also tell you that your refusal to take the tests “can be used against you as evidence in Court.” All that means is that if your case goes to trial (about 1% of DUI Arrests), that the jury can be told you refused. You are then allowed to explain why you refused and your attorney can argue that the tests were not worthy of taking. The reality is that officers have usually made up their minds to arrest when they give the FSTs.   

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