When someone gets pulled over for DWI or DUI it is a scary experience. Often people do not know what their rights are in that situation and they often mistake a question or a voluntary contact with an officer for a command that they must follow. This especially occurs in the case of field sobriety tests. If you are pulled over and suspected of DWI, do you even have to take the filed sobriety tests? In this blog we will answer that question. Like all our blogs, this is intended for general informational purposes only and not intended as a substitute for the advice and counsel of a DWI attorney.
Standardized Field sobriety tests
There are three standardized field sobriety tests that are used across the nation in impaired driving stops. These are:
- Horizontal gaze nystagmus
- Walk and turn
- One leg standard
Do I have to take field sobriety tests?
No. You are not legally required to take a field sobriety test, ever. You do not have to take field sobriety tests. The interaction with the officer usually goes something like this: “Why don’t you come on over here so I can make sure you are okay to drive”. This is an invitation to take a field sobriety tests, it is not an order. In fact, you cannot be compelled to or, forced to take a field sobriety test ever.
You have the right against self-incrimination under the Fifth Amendment of the United States constitution, and taking field sobriety tests is something that would apply.
Please note that you do not generally have the right to refuse lawful command to step outside of your vehicle during a lawful DWI stop.
What happens if I refuse to take field sobriety tests?
If you are pulled over and refuse to take field sobriety tests, chances are the DWI investigation would not end there. Field sobriety tests are used for law enforcement to obtain probable cause to arrest you for DWI. It is only after you are arrested for DWI that you are taken back to the station and breathalyzed, which then often gives the government the strongest evidence of impairment against you. The absence of field sobriety tests makes the law enforcement officers job a little bit harder, but they will generally still continue.
If you are likely to be arrested for DWI anyway, why refuse the test? The reason is that without the field sobriety test there is generally more ambiguity as to whether or not the officer had probable cause to arrest you, and it gives your attorney something to work with when he is challenging probable cause. Further, your bad performance on the field sobriety tests can be used as evidence against you for the case in chief for the DWI.
Often, we get phone calls from clients who have been arrested from DWI, and when asked what happened, they say: “I took the field sobriety tests and I passed” … no you did not and you should not have taken them in the first place.
