If we haven’t experienced it ourselves we know someone who has, or we have seen it on a TV show like ‘Cops.’ An officer pulls someone over, announces that he or she smells alcohol, and orders the driver to exit the vehicle to perform a Field Sobriety Test (FST). What if it was you? What should you do?
First things first. We at Warrior Law are adamantly opposed to drunk drivers and the great harm they too often selfishly inflict upon the general public. That said there is a vast difference between someone who over a couple of hours in a social setting has had a couple drinks and may have alcohol on their breath and someone who is over the legal limit. This discussion is about those light drinkers who have for whatever reason, attracted the attention of the police.
So what do you do? Is the FST mandatory? What happens if you refuse?
The FST is not mandatory. You cannot be forced to balance on one foot, close your eyes, tilt your head back, touch your nose or recite the alphabet backwards starting with U and ending at H. They simply cannot force you to do these things. And who would want to play this silly game anyway? You’ll be standing along a presumably busy road, on a gravelly shoulder that may or not be level and smooth. You will have a police officer in your face. You will be in the direct beam of a spot light and you will be videotaped the whole time you are being directed to do things you probably could never do in your life. I asked one of my favorite 30-year police captains if anyone ever passes an FST. His answer was immediate and emphatic – “No.” So I asked him if it was just to bolster the case, or set up a driving while impaired charge if the chemical test result doesn’t exceed the legal limit. “All that. Submitting to an FST is cutting your own throat.” Enough said.
So what happens if you refuse? This is the tough part for people to digest. You will probably be arrested (which speaks to the fact that they didn’t need the FST to establish probable cause in their minds in the first place did they?). You will be handcuffed and taken to the station or the hospital depending on whether you are doing the breath test or the blood test. This result seems untenable to many, unless you recognize the truth of what was stated in the previous paragraph – you aren’t going to talk your way out of it, and even a FST performance worthy of a genius gymnast isn’t going to pass the 30-plus criteria an officer will testify that he or she was secretly testing you against. You were going downtown the moment they pulled you out of the car. So the real question is do you want to be arrested with or without ten minutes or more of videotape evidence of you contorting and trying to balance yourself under stress and playing ridiculous stump the monkey mental games with the officer?
In summary, the FST is not mandatory. You cannot be forced to attempt any of the tests. The officer may act upset and try a bit of bullying, but there are no actual legal ramifications for refusing the test other than getting arrested which in almost all cases was going to happen anyway (refusing a chemical test is sometimes a different story and the subject of a future post). All that happens for refusing the officer’s dancing bear choreography routine is that there is less evidence to be used against you later should it come to that. The choice though is yours. I suggest you consider your personal position on what to do in advance.
Attorney discusses why you should refuse FST (a well done video discussion)
A former police officer now attorney advises what not to do when pulled over for suspicion of DUI (other aspects of the interaction with the police during a DUI stop)
Cop Tries to Force FST. City settles for $70,000 (police officers are a lot of things, but they are not legislators, judges or juries. You have rights, but only if you respectfully, but firmly assert them)