Published in DWI-Crim on January 23, 2018
First things first—NEVER DRINK AND DRIVE. Choosing to drive after you’ve consumed too many alcoholic beverages can have catastrophic, life-changing effects on your life and on the lives of others.
However, no one is perfect and you may have a lapse in judgment that results in your getting stopped by law enforcement for driving while intoxicated. If you ever find yourself in this situation, remember that you are not legally obligated to perform field sobriety tests.
This does not include providing a breath, blood, or urine sample for analysis of your blood alcohol content (BAC). By obtaining a drivers license you have given implied consent to submit to this kind of test. Refusal to provide a sample will almost certainly result in the loss of driving privileges.
Field sobriety tests are different. They can take several forms—balancing on one foot, reciting the ABCs backwards, a horizontal gaze nystagmus test (which involves following an officer’s finger with your eyes), walking in a straight line heel to toe, etc. The law does not require you to submit to these tests. As such, you should politely decline to participate in the tests.
But why not?
First, the tests can be unfair to the driver. Balancing on one foot on uneven ground is difficult to do sober; yet many DWI stops occur with the subject being tested on a roadside with uneven ground. Lights from passing cars or the police car can skew the results of a gaze nystagmus test. And some people just can’t recite the alphabet backwards!
Second, by submitting to the tests and failing, you are providing the arresting officer with additional evidence to use against you. If and when the prosecutor files charges against you, the state is required to prove your guilt beyond a reasonable doubt. If you consent to field sobriety tests, then fail the tests, those test results will be a key component of the state’s case against you.
While the officer conducting the stop may not be happy with your refusal to engage in the field sobriety tests, doing so may improve your chances if the state elects to file charges against you. When that occurs, you will be glad you stood firm in your rights.