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Pulled Over? Why You Should Probably Decline To Take A Field Sobriety Test

What happens if you're on your way home after a New Year's Eve party and you're stopped by a police officer on the suspicion that you're driving while intoxicated? More than likely, the officer will ask you to take what is called a Field Sobriety Test (FST). Should you agree? What happens if you don't? Here's what you should know.

A No-Win Situation

If an officer pulls you over, he or she already suspects that you've been drinking. Once you're asked to take a FST, you're put in a no-win situation. If you refuse to take the test, you'll probably be arrested on suspicion of drunk driving. If you take the FST, you run the risk of failing it and getting arrested anyhow.

The decision you have to make is really, "Should you take the chance that you'll pass the Field Sobriety Test and avoid arrest?" Unfortunately, there's no easy answer to that question because you probably won't pass it, even if you're sober.

Tests Designed To Fail

Usually, the officer who pulls you over will administer one or more common FSTs, none of which are as simple as they seem on the surface. They include:

  • asking you to follow a stimulus (usually the officer's pen) with your eyes while the officer watches to see if your eyes make any jerking motions as they move
  • recite the alphabet backwards to see if you lose your place or do it wrong
  • stand with your arms to your side, tilt your head back, close your eyes, and count to 30 before you open your eyes and lower your head again, to see if you sway or lose your balance
  • walk a straight line, one foot in front of the other, without wavering or stepping off the line
  • tilt your head back, shut your eyes, and touch the tip of your nose at the officer's instructions

The problem with these tests is that you can fail them for any number of reasons, none of which are related to alcohol consumption.

First, remember that you will be under a great deal of stress when asked to perform these tests. Stress can cause people to have trouble concentrating and even cause some people to get shaky or dizzy. Second, other physical conditions can cause you to fail the tests. An inner ear problem, or even the start of a cold, can cause you to have balance problems. Finally, the officer "grading" the test is doing so subjectively. Since he or she has already decided that you are likely intoxicated, he or she is probably not the most unbiased of judges!

Your Right To Refuse

Unless you are 100% positive that you can pass a FST, you should consider politely refusing. While the laws in each state vary, you are usually under no legal obligation to participate in one. At that point, you may be required to submit to a Breathalyzer and implied consent laws in all states usually level stiff penalties if you refuse, including the loss of your license for a time.

If you decide to refuse the FST make sure that you are polite. Remember that everything is probably being recorded from the dash of the officer's patrol car. If your case goes before a jury, a polite-and-sober refusal is going to be more sympathetic than a belligerent-and-drunk sounding refusal.

Providing Less Evidence

There are several reasons that refusing the FST can work to your advantage. First, you aren't going to be on a videotape that shows you stumbling your way through one or more of the tests. The absence of such evidence can work to your advantage if your case goes to trial. 

Second, you are obliging the officer to compel you to take some other test to prove if you were drinking or not. That could be a Breathalyzer or it could be a blood alcohol test. In either case, if there is alcohol in your system, the validity of the physical tests can be challenged in court. 

If you're pulled over on your way home this New Year's Day, or any other day, on suspicion of drinking and driving, remember that you have little chance of helping your situation by agreeing to take the field sobriety tests. Instead, consider politely refusing and asking to speak to your DUI attorney instead.