I just learned that in California (and probably in other states) you are not required to take a field sobriety test if pulled over by a cop. Implied consent when you got your drivers license does require that you submit to a chemical test if arrested for suspicion of being DUI. Failing the field sobriety test gives probable cause for arresting a driver for DUI. My problem is that I am unable to pass the the balance tests. One test involves standing on one foot with your arms at your sides for thirty seconds. The other balance test is walking heel to toe for ten steps, turning around and walking back, again with your arms at your sides. I am unable to perform either test, even for two seconds. Lawyers say to never take the field sobriety test, regardless. Any suggestions for what I should say if I’m ever asked to do a field sobriety test. Should I give no reason at all? If I give a reason, what should it be?
BTW, I never drink enough alcohol be above the DUI threshold. Even so, I never drive when feeling any effects of alcohol.
Being brought in so they can take the test in the station is less of a blot on your record than being brought in in handcuffs and processed because you failed the field one, and then they do the chemical one anyway. Probably less time consuming and expensive, as well. That said, what running coach asked…
I’m also interested in this, from the perspective of anyone who never drinks or does drugs and knows they are innocent of DWI - because I understand the the FST is quite easy to fail, even if you don’t have any medical condition.
They need probable cause for arrest, that’s the principal reason for the FST. But presumably they are never going to just let you go home if you refuse the FST.
So, if you know you’re innocent, and you really want to go home, is there any ultimate risk in taking the FST and getting a spurious fail? Obviously that will get you arrested, but if you’re 100% certain that you will then pass any subsequent blood test, can an FST “fail” ever be used alone as evidence to convict you?
Several legal advice sites say never take the FST or consent to anything, but they don’t really explain their reasoning well, or if that is applicable if you are completely certain that you are innocent.
When you are about to administer the field sobriety the first thing you are supposed to ask is, “Do you have any medical conditions that would prevent you from performing these tests correctly?”
If you refuse the field sobriety tests (and yes, in California, you are legally allowed to refuse the pre-arrest FSTs, including the in-field hand-held breathalyzer), then that can’t be a legal basis for finding probable cause for a DUI arrest. And indeed, officers are trained to testify that they don’t make the determination if there’s probable cause until they gather all the facts, they look at all the factors as a whole, yadda yadda.
In reality, the cops will already have a good idea whether you’re drunk early on - the obvious signs like flushed skin, red/watery eyes, odor of alcohol, slurred speech, etc. On a ride-along I did, the officers said they could basically tell from their first conversation with the person (explaining why they pulled them over, asking for registration/ID, etc.) If they weren’t sure, they might try to do the HGN test (looking at the eyes tracking). If you get to the point they’re ordering you out of the car to do the walk-and-turn or balance tests, they already think you’re DUI and they’re just doing the scientific tests to bolster their case against you.
But, maybe you just have a rookie cop, or a jerk cop, or you’ve got some other condition that makes you flushed and smell like booze even if you aren’t drunk, and you get ordered to do the tests anyways. I would just explain to the officer that you have physical disabilities that prevent you from doing the test (they’re supposed to ask anyways, and put the answer in their report).
No they are not easy to fail. You really have to screw them up to fail. Most drunks fail by not being able to listen to and follow the directions.
Most of those legal sites are working under the assumption that you will fail. In other words they are assuming you are drunk.
I’m not telling anyone to take or not take them. I will say it is very possible to have enough probable cause for an arrest without them. I will also say that I have let people go who have passed. I don’t know of anyone who got away with a DUI because they refused to take the tests.
If you take a blood test and you are clean you can not be convicted of DUI. It doesn’t matter if you crawled through the tests. In my state the law reads driving while impaired by drugs or alcohol or by having a BAC of .08% or higher. What that means is at .08 impairment doesn’t have to be proven. It is legally assumed that at .08 you are impaired. If you have a low tolerance you can absolutely be impaired below .08%. That’s where the field tests would be used to try and prove impairment not just probable cause. In reality I have never seen that happen. Under .08% the judge wants to see a plea bargain and not a trial if the per se limit isn’t reached.
Note that yhou will probably still get a ticket. After all, you did something bad while driving that led the cop to pull you over in the first place.
If you haven’t been drinking, and can pass the blood test, you will not get a DUI ticket. But you’ll get a ticket for speeding, or unsafe lane change, or failing to signal, or even careless driving. But those are much less serious tickets, especially as regards their effect on your driving record & insurance rates.
I have such a medical condition. My neurologist has given me tests very similar to a field soberity ones. In fact, he was quite pleased with the improvement when I could do the one-legged stance for 20 seconds. But it takes at least 30 seconds to pass in a FST. But I figure if I can just say to an officer that I have diabetic peripheral nephropathy and enunciate that clearly, he’ll know I’m not DUI.
HGN is one of the three standard field sobriety tests recommended by NTSA along with the walk and turn and the one leg stand. If someone is using other tests they are not standard and do not have established criteria.
The reasoning is that you don’t voluntarily give the police evidence. Evidence that the police have can be used to convict you. Evidence they don’t have can’t.
Consider the following two scenarios in a courtroom:
“Officer Doe, how did the defendant perform in the field sobriety test?”
Scenario 1: “He took three uncertain steps, then swerved off the line. He appeared quite intoxicated.”
Scenario 2: “A field sobriety test was not performed.”
Which one do you think makes it more likely that you’ll be convicted?
Odds are that it’s even better than that, since if you’re not required to do the test and you’re legally allowed to refuse, your lawyer might be able to get any such testimony stricken entirely, and the prosecutor will simply never get to ask about it all.
You mention that you might be sure you’re innocent. Do you think innocent people never get convicted?
A useful video: Don’t talk to the police. It directly addresses the incorrect idea that you have nothing to fear if you’re innocent.
One aspect of refusing the FST is if you are in fact marginally over the specified blood alcohol limit. If the limit is .08 and you are .09, delaying by refusing the blow thingy may get you to the point where by the time you actually take the blood test you are actually under the legal limit.
In any event, if you are over the limit, you shouldn’t drive anyways. Please don’t drink and drive.
There was a case here in NY that some ‘cops’ celebrating after hours were pulled over, and they refused all tests. Says it all to me, refuse everything, they know what to do, and also I realize how to work the system to their advantaged to their position which that latter part may not benefit me, but refuse always is my suggestion. Lawyers can determine your BAC with a judge later.
I understand all that. If my sole concern is no ultimate conviction, I don’t consent to anything. But you are answering in the same manner as the legal advice sites that I’ve seen, and you haven’t addressed the question that I asked. I’m also concerned with minimizing inconvenience.
If I am stopped and asked to perform a FST, I assume that if I decline I’m almost certainly not going home right away. So given that I know I’m sober, maybe it’s worth the slight risk of performing a FST in order to get the chance of resolving things immediately.
So my question is, if I’m 100% certain that I’m sober and that I would pass any subsequent blood test, how much risk am I really taking in consenting to the FST? How much risk of false conviction is there if I happen to fail the FST, given that I know will pass the blood test? Given that I’m certain I’m sober, I’m trying to ascertain if it’s worth taking that risk in order to try to resolve matters immediately and go home.
I don’t know the answer for sure, but I can speculate:
I think that at the point where they’ve asked you to get out of your car and do a field sobriety test, they probably already suspect that you are drunk. That is, they are no longer investigating to determine whether you are drunk, they are gathering evidence to make their case. In which case my answer is the correct one. You are going to be majorly inconvenienced right now regardless of your actions on the side of the road. Refusing to supply them with more evidence is the only relevant move at that point.
I could be wrong about this. Maybe police really use FSTs as determiners of ability.
One important thing to realize: there are intoxicating agents other than alcohol, and while a blood test over the limit will help convict you, a blood test under it will not exonerate you.
I doubt that that works. Cops have watches and courts understand how the metabolism of alcohol works. If you blow a 0.07 at the station an hour after you were pulled over, that’s not getting you out of a DUI.
That maybe works if you’re under age (a class where the limit is usually anything measurable) and you’re currently just barely measurably intoxicated. If you are at 0.01 and delay long enough for the breathalyzer to read 0.00, then you squeaked through.
Yes, this is the heart of the issue. If I’m sober I want to be tested as soon as possible, but only if it’s a genuine test where there is some benefit to passing; not if it’s the police just trying to shore up probable cause and they are likely to arrest me anyway. I wonder if there are any statistics on what proportion of people “pass” the FST, and whether those people are actually released.
