Can I Refuse to Take Field Sobriety Tests?

Drunk driving and driving under the influence (DUI) are serious charges, regardless of where you live.

In most DWI/DUI cases, the state bases its case on evidence that the defendant had a blood alcohol concentration (BAC) that was over the state’s legal limit. This is because every state has “per se” DUI laws. These laws state that law enforcement can arrest a driver for drunk driving if their BAC is over a specific limit (usually .08).

There are times, however, when the police can arrest you for DUI regardless of whether you fail a breathalyzer test. If the police officer suspects that you are under the influence of drugs, alcohol, or any other mind-altering substance, they can lawfully arrest you.

One way the police can demonstrate that you are driving while impaired is by having you perform something called a “field sobriety test.” If you perform poorly on this test, the police will arrest you and charge you with DWI/DUI.

Here, we’ll explain whether you have the right to refuse a field sobriety test (FST) and what happens if you refuse the FST or breathalyzer test.

If you’re currently facing DUI charges, consult a local DUI attorney. They can help protect your rights and craft a strong defense strategy.

What Happens During a DUI Arrest?

Many people believe that the police can pull them over for suspicion of DUI whenever they want. While this isn’t technically true, all the police need to justify a DUI stop is a reasonable belief that a driver is driving while under the influence of alcohol, drugs, or other substances.

Some drivers also believe that law enforcement can only arrest them for drunk driving if they fail a breathalyzer test. This is not the case. Even if a person’s BAC is less than the state’s legal limit, the police can still arrest them for DUI. As long as the police have probable cause that you’re driving while impaired, they can arrest you.

Of course, if the police want the arrest to stick, they must gather evidence to prove the driver was, in fact, driving while impaired or under the influence. There are several ways they can do this.

Some of the ways the police can demonstrate that they had probable cause to arrest a person for DUI include:

• The police can have the driver submit to a different chemical test, such as a blood or urine test

• The police officer can ask the driver to take a field sobriety test

• The law enforcement officer can document the way a driver was operating their vehicle and behaving during the DUI stop

Of course, it’s a lot easier to convict someone of DUI if their BAC was over the legal limit. But this doesn’t mean the state can’t secure a guilty verdict for a defendant who refused the breathalyzer test or the field sobriety test. It may be more difficult, but it is not impossible. Plus, there can be consequences for refusing the breathalyzer or the field sobriety tests.

What Is a Field Sobriety Test?

During a traffic stop, the police may ask you to perform several field sobriety tests (FST) to determine your level of impairment. The purpose of these tests is to determine whether you are impaired to the point that you pose a risk to yourself or other motorists.

The National Highway Traffic Safety Administration (NHTSA) endorses three standardized field sobriety tests. These include:

Horizontal Gaze Nystagmus Test (HGN)

The Horizontal Gaze Nystagmus Test (HGN) involves the officer having you focus on an object, such as a pen, their finger, or a flashlight. Then you must follow the object with your eye as the officer moves it back and forth. The same test gets repeated with your other eye.

The officer is watching for nystagmus, or involuntary jerking eye movements. This test can help detect both drug and alcohol intoxication. An experienced officer can estimate your level of intoxication based on your eye movements.

Walk-and-Turn (WAT)

Walk-and-Turn (WAT) involves walking nine steps, heel to toe, in a straight line. Then you must turn and repeat the steps. While you are walking, the officer will look for the following:

• Inability to maintain balance

• Ability to follow directions

• Using arms to balance

• Having to stop to regain balance

• Making the correct number of steps

• Difficulty making the turn

• Inability to keep a straight line or touch heel to toe

One-Leg Stand Test

For the One-Leg Stand Test (OLS), the driver must lift one leg six inches off the ground and hold the stance for 30 seconds. The officer will ask the driver to count by a certain number of increments or from a specific number, such as 1,001. During this part of the FST, the police officer will watch for:

• Inability to maintain balance

• Putting your foot down before 30 seconds is up

• The need to use arms to balance

• Hopping up and down to stay balanced

The officer will not comment on your performance until you complete the test. If a driver performs so poorly in the early parts of the FST, the officer will have them stop. The point is to determine if the driver is impaired. Sometimes, the officer can make this determination without the driver completing the entire FST.

Refusing Field Sobriety Tests

If the police pull you over for suspicion of DUI, they will ask you to perform these tests. They will also ask you to submit to a breathalyzer.

The law does not require a driver to take these tests. You have the right to refuse any of them. But, there can be consequences.

Most states do not penalize a driver for refusing field sobriety tests. The FST is merely an investigative tool for the police officer. However, if you refuse to take the test, there is a chance the prosecutor will use your refusal as evidence against you in court.

There are several reasons why a person would refuse to perform a field sobriety test, including:

• FSTs are not infallible. It can be difficult to perform an FST even while sober. You may perform poorly, making it appear that you are indeed under the influence of alcohol or drugs.

• Certain medical conditions can mimic the effects of intoxication in FSTs. For example, if you wear contact lenses, it may influence your performance during the HGN test.

• Your age or an injury may make performing the WAT and OLS tests difficult.

• Medical events like an adverse diabetic reaction may make you seem lethargic, shaky, or unable to follow instructions, leading to an arrest for DUI.

It’s important to remember that refusing the FST, even for valid reasons, will not stop the officer from arresting you for DUI. If they establish probable cause some other way, they will arrest you and charge you for DUI/DWI.

Reasons a Person May Refuse the Field Sobriety Test

There are many reasons why a person would refuse to take a field sobriety test. Obviously, the number one reason a motorist would decline the FST is because they know they’ll fail or perform poorly.

There are other reasons, however, why even a sober person would refuse to perform a field sobriety test, including:

• Inclement weather: If it’s raining, snowing, sleeting, or just very cold, a person is liable to perform poorly on an FST.

• Medical condition: A person suffering from a specific medical condition may refuse a test, fearing that their medical issue may cause them to fail the field sobriety test.

• Medication: Sometimes, a person takes prescription medications that may impact their ability to perform certain parts of the FST. Of course, this begs the question of whether that same medication would affect their ability to operate a motor vehicle safely.

• Nervousness: Most drivers would be anxious during a traffic stop. Even if a person is stone-cold sober, their nerves may make them perform poorly on the field sobriety test.

• Refusing on principle: Sometimes, a person refuses to take an FST simply on principle. They may be insulted that the police officer suggested they were impaired in the first place. Or they may have moral or ethical principles that cause them to distrust law enforcement.

Consequences of Refusing a Field Sobriety Test

The consequences of refusing to take a field sobriety test depend on the situation. Technically, participating in a field sobriety test is purely optional. The police cannot force you to perform the test, nor can they arrest you simply for refusing to submit to the test.

However, this doesn’t mean there aren’t negative consequences of refusing the test.

Some of the drawbacks of refusing the FST include:

• It may give the police officer probable cause to arrest you for DUI. If you refuse the FST, the officer may assume that you’re intoxicated or under the influence. The law enforcement officer does not need direct evidence that you’re driving under the influence. They can rely on the totality of the circumstances to develop probable cause.

• The prosecutor can tell the jury (or judge) that you refused the test. This may convince them that you were guilty of DUI. Otherwise, why would you refuse the test?

• If you are sober, taking the field sobriety test may help you avoid a DUI arrest.

Can I Refuse Chemical Tests?

Some police officers may ask you to submit to a breathalyzer test before they ask you to perform a field sobriety test. Law enforcement often prefers a breathalyzer test because it provides immediate results, and there are immediate consequences for refusing it.

A Breathalyzer test estimates your blood alcohol concentration (BAC). You face arrest if your test results show an illegal amount of alcohol in your system. Law enforcement will ask you to submit to further testing, called chemical tests, to determine your intoxication level.

Field sobriety tests are different from chemical tests. This is an important distinction.

While you can refuse to take a breath test and other chemical tests, such as blood tests and urine tests, there are serious consequences for doing this.

All states have implied consent laws requiring you to submit to chemical testing during or after a traffic stop. Essentially, because you’re driving on the roads of that state, it’s implied that you agree to a chemical test if pulled over. If your case goes to trial, the prosecutor can tell the judge or jury that you refused a chemical test.

In many states, refusing a breathalyzer leads to driver’s license suspension and, in some cases, a revocation of your license. This can also cause your insurance rates to skyrocket. Additionally, you’ll still face criminal charges for DUI.

Questions About Refusing to Take a Field Sobriety Test? Ask a DUI Lawyer

If you’re currently facing DUI charges, you should contact a local DUI attorney for legal advice right away. Your criminal defense lawyer cannot guarantee an acquittal. However, your chances of an acquittal or favorable plea bargain increase if you have a criminal defense attorney. They can ensure your constitutional rights are protected and craft a defense based on your unique case.