Most of what you said is wrong, as far as Texas law is concerned. A refusal is not any kind of offense at all. The only penalty is a potentially longer DL suspension. People refuse, and win at trial all the time. In fact, most acquittals are refusals - if the the BAC is much higher than .08 the defendant probably isn’t going to win. (Unless it’s much hire, and the defendant looked very good in the video, which would indicate there’s something wrong with the machine.) If it’s much lower, it’s probably not going to trial at all. That leaves refusals - and lots of people refuse, and for other reasons besides they “know” they’re going to blow over. The fact that somebody refused the test may be some evidence, but by itself it doesn’t prove, beyond a reasonable doubt, that somebody is intoxicated. In fact, if you said a refusal by itself, was enough to convict somebody, you’d be struck from the jury panel.
The balance tests may not be difficult for you, but they are difficult for lots of people, especially if they’re older, overweight, or just have a poor sense of balance.
Anyway, there is no pass or fail, as far as FSTs are concerned. Cops refer to mistakes, or missteps, as “clues”, and there’s no particular number of clues they need to decide to make an arrest. All they need is “probable cause” - which is a low standard. As a practical matter a cop who merely suspects somebody is DWI is going to make the arrest, because what is his other option?
It’s letting somebody who may be DWI get back in his car and drive away.
In my state, a refusal is a civil penalty which will cause you driver’s license to be suspended for twice the time period of a DUI conviction. It also does not operate as a DUI conviction for recidivist purposes. A refusal can also be challenged for no PC.
If the penalties were like they are in your state, I may very well rethink my strategy, but as they are now, my advice is pretty standard. Politely refuse FST in all circumstances and refuse portable breath tests if there is any chance that your BAC is approaching .08. The only possible thing that they can do is give additional evidence to convict you of DUI.
As far as “passing” the FST, a local cop around here known as “Mr. DUI” has candidly told me that nobody passes the FST. Of course there is some self-selection going on: You wouldn’t ask someone to do a FST if you didn’t already think that they were intoxicated, but I agree with LinusK here. Your legs are already stiff from driving; you are in an unfamiliar place along side of the road; you are nervous as hell because you might be going to jail unless you perform the test right. Never mind if the ground nearby is sloping or the weather is bad.
There is a high likelihood of failing the FST which just adds PC for an arrest. Yes, I can challenge the tests at trial, but I would rather there not be any such evidence to have to challenge in the first place.
For the “real” test at the station, I would reverse the presumption from the portable test. If there is any chance you think you might blow under .08 or close, then take the test and save your license. If you have been drinking for the last 17 hours and know that you will blow an astronomical amount on the breath test, then don’t give additional evidence that will almost certainly convict you of DUI.
I’ll assume that is correct for there. Not here or in many other states I know about. A refusal is a separate charge which carries the same exact penalties as a DUI. And it basically counts as a DUI. So if last year you were found guilty of a refusal and this year you were found guilty of DUI, this year’s charge will count as a second offense with the enhanced penalties that brings.
So basically all a refusal does is make it an easy court day for the officer. Which I happen to be fine with but I have personal reasons for that.
For those asking about how exactly one “refuses” a test, here is the statute in my state:
[QUOTE=W.Va. Code§17C-5-7]
. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of this article refuses to submit to any secondary chemical test, the tests shall not be given: Provided, That prior to the refusal, the person is given an oral warning and a written statement advising him or her that his or her refusal to submit to the secondary test finally designated will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty-five days and up to life; and that after fifteen minutes following the warnings the refusal is considered final.
[/QUOTE]
So oral and written warnings, and then you have 15 minutes to change your mind. Also with regards to forcible blood testing, note how the statute says that if a person refuses “the tests shall not be given.”
For years, the state Supreme Court interpreted that as “the tests shall not be given” and disallowed testing for any reason when the arrestee refused. Last year, a DUI arrestee was charged with killing 7 people while drunk and forcibly tested while unconscious. The state Supreme Court reversed itself finding that the clear language of the statute meant that, by golly, you could test with a warrant after all, and even though there was no warrant in this case, there could have been had the judge known about this retroactive decision, so it was harmless error and a good test.