Can I Contact An Attorney When Deciding Whether To Perform The Standardized Field Sobriety Tests?
A driver does not have the right to contact an attorney when deciding whether to perform the field sobriety tests. Taking the tests is a judgement call. Only you know how much you had to drink and how high your alcohol tolerance is. Try to make the best decision possible considering your alcohol consumption, your tolerance to alcohol, and the implications of refusing the tests.
Can I Refuse To Perform Or Complete A Standardized Field Sobriety Test?
You can absolutely refuse to do the field sobriety tests. Officers are very sneaky in how they attempt to get someone to take the tests. They won’t tell you that the tests are optional. What they will do is say something like, “What I’d like you to do right now is look at the tip of my pen with your eyes,” and then they will continue with the other instructions for the horizontal gaze nystagmus test. Alternatively, they may say something to the effect of, “I’d like you to do some tests now so that I can determine if you are able to drive.” Then continue with the administration of the tests.
You are well within your rights to tell the officer that you do not want to perform these tests. You may also stop taking the tests at any time. Just remember that if you perform these tests and you do poorly on them, then that is evidence that will be used against you. If you refuse to perform the tests, then law enforcement will not be able to use poor test results against you. However, if the case goes to trial, then the jury can make assumptions as to why you chose not to perform the tests.
If you are heavily intoxicated and you know that you are heavily intoxicated, then it may not be to your benefit to perform these tests. If you look bad on the video, then that video will have to be overcome somehow. If you are not intoxicated and you know that you are not intoxicated, then it may be to your benefit to perform the tests. However, officers very frequently administer the tests improperly. Improper administration of the test can lead someone to perform the tests poorly.
How Do Police Respond To A Refusal Of The Field Sobriety Tests?
People rarely refuse to perform the field sobriety tests. If the suspect refuses to perform the field sobriety tests, then the officer must have some other reason to arrest that person besides poor performance on a field sobriety test. The officer must find other things that indicate intoxication. Examples of this could be the poor driving that the officer observed, an odor of alcohol emanating from the suspect’s breath, bloodshot eyes, or slurred speech. Ultimately, the officer must have probable cause to arrest somebody.
Do Standardized Field Sobriety Tests Really Determine If Someone Is Impaired?
The standardized field sobriety tests have been validated to determine impairment on alcohol; they have not been validated for impairment on anything else. However, they are not 100% correct. Sometimes a person who is impaired may be able to perform the SFSTs well, and the officers will not detect impairment. Alternatively, sometimes a person who is not impaired will not perform the SFSTs well, and the officer will incorrectly determine that they are impaired. The most recent studies show a high percentage of correct evaluations by the officer when the tests are administered correctly. The key is that the tests must be administered correctly.
A person’s performance on the walk and turn and one leg stand tests can be good if that person has developed a tolerance to alcohol (i.e. they’re an alcoholic). The only test that a person cannot do better on due to alcohol tolerance is Horizontal Gaze Nystagmus. This is because the jerking of the eyes is involuntary. HGN is the most reliable of the three tests.
I have never seen an officer administer any test 100% correctly. Some of the errors are major and some are minor. The bigger the error, the easier it is to show that the results are invalid. Their training states that if the administration of the tests is incorrect, then the results of the test can be invalidated.
Source: NHTSA’s 2015 DWI Detection and Standardized Field Sobriety Testing student manual
For more information on Whether You Have To Perform The Field Sobriety Tests, call (405) 633-3420 to speak with an attorney.