Can the Police Use Refusal of a Field Sobriety Test Against You?

More than 10,000 people die in alcohol related road accidents every year. That is more than 30 per day. These deaths account for nearly 30% of all traffic accident deaths. In addition, almost 300,000 people are injured every year. According to the CDC website, the costs arising from alcohol related road traffic accidents is estimated at more than $44 billion annually.

It’s no wonder, then, that we sometimes feel there’s a crusade against driving under the influence of alcohol. We see and read about incidents where the police exercise unnecessary aggression or force when dealing with a suspected drunk driver.

When a police officer pulls over a suspected drunk driver, they have three tools at their disposal to assess the facts:

1. The Standardized Field Sobriety Test (SFST)
2. The Preliminary Alcohol Screening (PAS), commonly known as the roadside breathalyzer.
3. Observation and opinion

Reliability of the field tests

Generally, a police office would first attempt to enforce the SFST. Officially, this is a set of three test that were developed by the National Highway Traffic and Safety Administration (NHTSA) in the late 1970s.

The test consists of:

• A Horizontal Gaze Nystagmus (HGN) test. Here the suspect has to follow a slow-moving object that is passed from side to side at eye level. In an intoxicated person, the eye movement will be jerky.
• A Walk and Turn (WAT) test. The suspect has to take nine steps in a straight line, turn on one leg and take the nine steps back. They have to take the steps heel to toe.
• A One Leg Stand (OLS) test. The suspect has to stand on one leg with the other foot six inches off the ground. He has to hold this pose for 30 seconds while counting aloud.

The tests are said to indicate a Blood Alcohol Content (BAC) of 0.10% or more with approximately 80% accuracy on average. They are designed to test the divided attention that we should be able to apply when driving. Failing any one of these tests is supposed to indicate at least some intoxication. Some would argue, though. However, failing all three is probably a sure and reliable sign of intoxication.

The problem with the two physical tests is that they have so many places where errors can be made; apparently around 200 between the two tests. You only need to make two mistakes in either test to fail. It’s quite clear, then, why even sober people will often fail these tests.

The PAS is notoriously inaccurate. It is susceptible to a whole host of external influences that can produce false positives. Ambient temperature and inhalation of paint or adhesive fumes are just two such factors. There are also a number of physiological factors that can significantly affect the reading.

Are the SFST and PAS admissible in court?

Generally, the results of field tests are not admissible in court. At least, not as evidence of intoxication. Many states allow only the result of a blood test as evidence. The field test results may, however, lend support to the DUI charges. Failing all the SFSTs and registering more than 0.08% on the PAS is almost certain to lend credible support to a conviction. You cannot be convicted on these tests alone but they will support the case against you.

The degree of difficulty of the SFST, even for people who are nowhere near intoxicated, calls them into question as conclusive evidence. There is also the fact that the tests are very inconsistently carried out. Unless the test is done in a well-lit area and on an even surface, the suspect has grounds upon which to contest the outcome.

You have the right to refuse

As mentioned, the results of these test are not admissible in court as evidence. You cannot be convicted based on these tests. The tests are intended to serve as a tool to assist a traffic officer there and then in his assessment of a person’s state of intoxication. The sad reality is that, if a police officer pulls someone over, they have most likely already decided that the driver is guilty.

In reality, these tests serve as corroboration of probable cause for the police officer to pull the driver over. You are not legally obliged to take any of these roadside tests. You will not be penalized if you don’t. In fact, quite the opposite. If you do take the tests and fail, you are providing evidence that will support an easier conviction.

So, what to do?

Simple answer; your chances of being arrested probably do not depend on the results of any of these tests. As mentioned, chances are the police officer already considers you guilty. Positive test results will just give the officer another layer of protection against any accusations that may be made. By taking the tests, you may also eliminate any doubt about your condition.

Just keep in mind, you need to keep your emotions in check and be polite at all times. Don’t be too polite – that may send the wrong signals. Whatever you do, don’t aggravate the police officer. That would be a certain ticket to the nearest police station.

If you refuse the tests, then the case against you comes down to the police officer’s observations and opinion. That is a lot easier to fight than any test result.

Keep in mind also, that the tests are very, very easy to fail.

And, even if you pass the tests, the officer may still arrest you on the grounds that he believes you’re not in a state to drive.

Your best course of action is to refuse the tests and to contact a DUI attorney as soon as you can. DUI attorneys specialize in these cases. Often, they do only DUI and nothing else. When you consult with an attorney, be as specific as you can about every little detail of the incident. If you have any health condition, this may be used in your defense.

Whilst you cannot be prosecuted for not taking the test, some people believe that refusal shows that you “have something to hide”. Even the smallest detail may work in your favor. Don’t let this intimidate you, though. Stand your ground and refuse the tests. It cannot be held against you.