Should a sober person take a field sobriety test?

Supposing for whatever reason, a cop asks a person who knows themselves with certainty to be completely sober (e.g. they have no consumed any alcohol in days) to take a field sobriety test? (Maybe the car was weaving a bit, or perhaps the cop is just a jerk or idiot.) Should they agree or just insist on a breathalizer instead?

The reason I ask is I’ve been watching some FST in action (on YouTube) and ISTM that they are highly subjective and very difficult to “pass” to the point of convincing someone who is otherwise inclined to think you’re intoxicated. In particular, the one involving walking in a straight line one foot in front of the other (aka the “walk-and-turn test”). I’ve seen a couple of instances where I thought the person did a fairly decent job but the cop thought otherwise and snapped some handcuffs on them.

I’ve never actually been given a FST of any sort IRL, but my wife and I did this test at home a few times. It was frankly not easy to do it without wobbling at all or stepping out of line. And we are both in pretty good shape; I can only imagine people who are overweight or otherwise out-of-shape, who are older, tired, or just stiff from driving a while. So I think there’s a huge potential for the officer to just incorrectly assume that a sober person is intoxicated, whether due to innocent error, incompetance, or because he’s possibly in a bad mood and out to get you. Meanwhile, the BrAC and BAC tests are not completely error free, but are at least objective and much more reliable than the FSTs.

Of course, the above is assuming you’re actually confident that you’re not at all intoxicated and are not just making some possibly incorrect assumption about how much you drank and whether it wore off by now.

Also, I’m assuming that the FSTs are not obligatory without consent (see Wiki link below).

Looking at Wikipedia, I see there are critics of this test in particular.

Field sobriety testing - Wikipedia

Critics of standardized field sobriety tests often question the statistical evidence behind them, and the ability of the officers to administer the tests and actually judge for impairments related to alcohol. According to Barone, one study involved completely sober individuals who were asked to perform the standardized field sobriety tests, and their performances were videotaped. “After viewing the 21 videos of sober individuals taking the standardized field tests, the police officers believed that forty-six percent of the individuals had ‘too much to drink’”. The NHTSA’s 1977 study had an error rate of 47 percent, and the 1981 study had an error rate of 32 percent, which is considered unusually high for a scientific study.

One of the main criticisms of field sobriety tests is that the judgment is left up to the discretion of the police officer. An officer may have some bias towards a suspect and judge the test more critically than necessary. Additionally, it is almost impossible to tell whether or not a police officer used proper procedures for administering the field sobriety test when a case is brought to court. The original research conducted by the NHTSA is often disputed because of the manner in which they were conducted and the conclusions that were reported.

One author alleges that FSD analysis reports do not meet scientific peer review standards: “The reports for all three studies issued by NHTSA are lacking much of the material and analysis expected in a scientific paper, and none have been published in peer-reviewed journals” (Rubenzer 2008; Rubenzer 2011).

As noted above, these tests can be problematic for people with non-obvious disabilities affecting proprioception, such as Ehlers-Danlos syndrome (EDS). Conditions affecting mobility, physical ailments and age adversely affect performance on FSTs.

Is there any downside to this approach?

I was pulled over for not having my headlights on and suspicion of DUI. I was my gf’s designated driver that night and I was unfamiliar with her new car. I’d had one beer.

Rather than struggle with the field sobriety test, I offered to blow into the breathalyzer. I blew legally and was sent on my way. A field sobriety test would likely have been a failure due to age and vestibular issues.

I wouldn’t be able to. After my stroke a few years ago, my sense of balance is still wonky. I don’ think I’d be able to balance on one foot, or walk heel to toe in a straight line. I’d offer to do the breathalyzer, like Kayaker.

Personally, I would have zero problem blowing into the thing, and if it ever blew the slightest bit positive, that in itself would be proof the breathalyzer is broken. My reaction would probably be laughter.

IANAL, but I did attend a class put on by a municipal police department once where a few volunteers got drunk and did sobriety tests. The cops spoke to us about our rights. My recollections:

  1. Your are not required to submit to a field sobriety test anywhere in the country.
  2. In some jurisdictions you aren’t required to submit to a breathalyzer. In other jurisdictions, refusing the breathalyzer is itself an offense on par with (but legally not) a DUI.
  3. If probable cause exists, cops can bring you down to the station for a BAC blood test. This may be advantageous as your BAC will decrease over time.
  4. Here’s the kicker – none of the above are required for a DUI conviction. If the officer observes you behaving in a manner consistent with DUI (say, swerving, wide turns, slow reactions, etc) that’s enough to bring charges and may be enough to convict.

My takeaway was that you should, in theory, never submit to a FST. It nets you nothing from a legal perspective. From a practical perspective, it’s the equivalent of “explaining yourself” to a cop – if he’s a reasonable person and you pass the FST maybe he’ll let you go quicker. But since you could pass the FST and still get charged with DUI, why risk it.

A friend of mine (who is a cop) has given me a FST in my yard. I fail every time, over compensating on the heel-to-toe walk. My sober pupil response is also wonky, likely due to my anti-hypertension meds.

According to him, FSTs are a joke. He knows going in who is going to fail (hell, they’re drunk off their ass) but borderline cases he can call either way, that’s just the way the test is designed.

Why “offer” to do this? I know you can’t refuse, but I don’t see how it can improve your position to volunteer it. After you refuse the field sobriety test, the LEO is either going to want you to do a breathalyzer test or they are not. It’s not going to speed your departure to offer to do it (although I understand the psychological desire to not want to appear uncooperative).

I did.

I was pulled over late at night in a deserted small college town (holiday break) for having a headlight out. The police asked me if I had anything to drink and I truthfully said I had one beer several hours ago (like 3 or 4 hours). He asked me to take a field sobriety. It appears he had a rookie that was in training because I ended up doing every single test I think available. The rookie and senior cop conferred a few times and I redid a couple tests. During all these tests, the rest of the police that were on duty in this small town showed up to watch.

I could’ve complained or asked to blow, but I knew I had done nothing wrong and found it interesting. Plus, I was in no hurry.

I knew I would pass and just wanted to go home. I also knew I’d fail the FST.

ISTM that cops have the right to do all sorts of unpleasant things and make consequential decisions based on their “professional judgment”, which is itself highly subjective. The more “cooperative” you are, the less likely they are to see subtle signs that indicate to their professional judgment that you’re guilty of something.

In sum, when dealing with cops, not wanting “to appear uncooperative” is a lot more than a “psychological desire”.

Goddamn your drunk tests are hard!

I have spinal issues starting to abound, I couldn’t walk a straight line right now, may never be able to again. I suppose when I was younger I wouldn’t worry about the physical tests but that relies on the opinion of a police officer anyway, I think I’d just want to do the breathalyzer and put an end to it.

I guess they skipped a couple of them! :rofl:

And I’ve never even heard of the Catalina Magdalena Lupensteiner Wallabeiner song. I’m going to jail!

You could make the same argument about just answering a cop’s questions when under suspicion of a crime in order to “appear cooperative”, but there is complete consensus in expect legal advice that you should not do so.

When you are explicitly under suspicion of a crime, I think you can be polite and friendly in demeanor and cooperate with anything you are obliged to do without volunteering anything. I don’t think “offering” to take a breathalyzer is going to turn an asshole cop into a reasonable one.

I doubt if there’s a “complete consensus” about this, but let’s grant that point to avoid getting bogged down on that.

For purposes of this discussion, the far more salient point is that there’s a huge potential downside of answering a cop’s questions because you could incriminate yourself; this downside could far outweigh the advantages of appearing cooperative. By contrast, offering to take a breathalizer test that you are certain to pass (and will probably be forced to take anyway) has virtually no downside at all.

I have no idea about the reliability of these roadside breathalyzer tests. Or whether “offering” to take a test might strengthen a cop’s case to make me wait longer while his buddy brings one from the station.

I’d like to hear from someone with some actual legal expertise on (among other things) whether a cop needs probable cause to ask for a roadside breathalyzer if you don’t offer to take one, and how stringent that standard is.

FSTs (also called FSEs, or Field Sobriety Exercises) are voluntary, but cops usually won’t tell you that. Also, in order for the cop to request you to perform them, they are supposed to have reasonable suspicion (usually based on an odor of alcohol combined with slurred speech and bloodshot and watery eyes) that you are impaired first.

The exercises are really just an excuse for you to provide additional corroborative evidence that you are indeed impaired. Meaning, they are designed to make you look bad.

So I wouldn’t bother to do them if I wasn’t drunk. Instead, I’d just keep quiet and then provide a breath test if I’m eventually arrested.

(Not, though, that if you blows 0 but still seem impaired the police may be able to request a urine sample to check for drugs. You may walk out of jail without being arrested for DUI, but the charges may still get filed months later if the test results come back with illicit drugs in your system).

A breathalyzer can only be requested “incident to arrest”. So, the cop needs probable cause to believe you are DUI, therefore justifying an arrest, at which time you are deemed to have “consented” to provide the breath sample by virtue of having obtained a driver’s license (check yours. There’s likely some notation about consenting to a breathalyzer when legally required).

This is kind of what happened to me. I was taken to the local jail intake (that was where the breathalyzer was) and blew well under the legal limit.
Then they said you are free to go. Great, my car was about 5 miles away on the side of the road. This being the days before Uber and smart phones, and I had no cash for a taxi, I got to walk back to my car in the middle of the night. :rage: