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Should Drivers Refuse Field Sobriety Testing?

Should Drivers Refuse Field Sobriety Testing?


Field sobriety tests are intended to help police officers determine if a driver is under the influence of drugs or alcohol and establish probable cause for an arrest. Currently, the National Highway Transportation and Safety Administration (NHTSA) has approved the Standardized Field Sobriety Test (SFST), which includes three tests that can be performed during DUI stops:

  • Horizontal Gaze Nystagmus (HGN) Test: In this test, the driver is asked to follow the movement of a slow moving object, such as a small flashlight or pen. This test is performed to see if there is involuntary jerking or bouncing movement (nystagmus) of the eyeball. This involuntary eye movement can occur when a person has consumed alcohol or other substances that cause depression of the central nervous system.
  • Walk-and-Turn Test: In this test, drivers are asked to take nine steps, heel-to-toe, in a straight line; then turn on one foot; and return in the same manner. Officers evaluate the performance based on eight factors: losing balance while listening to instructions, stopping while walking to regain balance, starting the test before the instructions are complete, failing to touch heel-to-toe, stepping off the line, taking the wrong number of steps, failing to turn correctly, or using the arms for balance. Drivers are considered to have failed this test if two or more of these indicators are observed.
  • One-Leg Stand Test: In this test, the driver is asked to stand on one foot, with the other foot about six inches off the ground. Then, the driver is asked to count out loud for 30 seconds. During this test, officers look for four indicators of impairment: using the arms to balance, swaying while balancing, hopping to improve balance, and putting the foot down. If the driver exhibits two of these indicators, they are considered to have failed the field sobriety test.

The Validity of Field Sobriety Tests

The validity of field sobriety testing is widely disputed. Those who oppose the use of such practices say they are nothing more than coordination tests, and that they are designed for failure.

Consequences for Refusing a Field Sobriety Test

In most states, field sobriety tests aren't required by law. If asked to perform a field sobriety test, drivers should politely decline, though this refusal to consent to field sobriety testing may be included in the police report. Failure of field sobriety testing provides the officer with probable cause to get a warrant and make the arrest.

Although drivers can refuse field sobriety testing in most states without penalty, drivers must comply with these other requests, or risk losing their driver's license or facing other fines:

  • Drivers must get out of the vehicle at the officer's request.
  • Drivers must submit to breath testing if the officer has a warrant or the driver has been arrested
  • Drivers must submit to blood testing if the officer has a warrant or the driver has been arrested 

Challenging Field Sobriety Testing in Court

If a driver submits to field sobriety testing and is subsequently arrested for DUI, the charges can be challenged in court. DUI defense attorneys can present evidence showing that:

  • Drivers are not told how their performance is being measured
  • Studies have shown that older drivers are physically unable to perform these tests
  • Drivers with disabilities have difficulty performing these tests
  • Drivers often feel under duress and nervous when performing these tests on the side of the road, which could contribute to a poor performance
  • The driver's age, weight, or a medical condition may have contributed to a poor performance
  • The driver may have been ill
  • The driver may have been taking medication or wearing contact lenses, which can affect eye movement
  • The road conditions affected test performance
  • The test may not have been performed properly on the part of the officer

State laws vary regarding DUIs. For information specific to your state, contact a local DUI attorney.

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