Do I have to do field sobriety tests?

Under California law, the driver is free to refuse to perform the field sobriety tests without any detrimental consequences (unless under 21 years of age). In other words, you DO NOT have to perform field sobriety exercises.

For some reason, people feel a false obligation to perform the tests when asked by the police officers. In reality, you are onlybuilding a DUI case against yourself. From the outset, you need to remember that even though police uses the word “test”; these are merely field sobriety “exercises”.  A motorist is not taking a field sobriety “test”, but performing exercises in order for police officer to determine whether there is probable cause to arrest you on suspicion of drunk driving. If these were truetests, then it will show whether someone is drunk or not or at least a degree of intoxication. Not some single test (and not a police officer), but the jury actually decides whether you drove under the influence by relying on exercises that you perform and other police evidence.

What is being “tested”?

Police officer is not gauging how well you can perform a one leg stand or walking the line, he/she is actually measuring how “poor” you perform. It becomes obvious from the police reports that the officer is looking for how poor you perform. Many people are not familiar with DUI reports that police prepare for district attorneys and city attorneys to use in DUI prosecutions. These reports are later shown to the jury at trial.

If you do NOT perform field sobriety tests, then the boxes on the reports will not be marked. The jury will not know how well/poor you performed. The jury will be explicitly instructed that they CANNOT infer guilt based on your refusal to perform. There isnothing illegal in refusing to do the tests.

On the other hand, if you do perform any of the field sobriety tests, expect to have some boxes checked off (some boxes are more general than other). [Below is a sample of a field sobriety test report conducted by San Diego Police Department. This is one of the better field sobriety tests we’ve seen. The person in this case had very few drinks with BAC barely at .08]

Practice makes perfect.

As with any physical exercises, practice makes perfect. This does NOT mean that you should drink and drive often. In fact, please don’t drink and drive. In terms of the field sobriety exercises, it will probably be you first time performing these exercises. As a child, who learns to swing a bat does not get a home run on the first hit, you are unlikely to perform these field sobriety exercises perfectly on first try (but police/jury might expect you to).  By the way, you might not even be familiar with the tests at all. The most common exercises are

  • *Walk and Turn
  • *One-leg stand
  • *Horizontal gaze nystagmus
  • *Finger to nose
  • *Alphabet, and
  • *Internal clock

Your defense attorney should always question the officer whether he/she has ever stopped a person suspected of DUI, administered field sobriety exercises, and determined that the driver is NOT driving under the influence. There only two answers, yes and no. If the officer says that it has never happened to him/her, then it might show that he/she is not fairly evaluating drivers but merely gathering evidence against the drivers. If he says that it has happened to him/her before, than it shows that people can drive erratically, get pulled over, and still be sober enough to drive.

It is not clear how well these field sobriety exercises actually evaluate each individual. If you ask an officer how well a person did on walking the line when he/she received a driving license. Well, we do NOT test persons’ physical abilities when giving out driver licenses. Wouldn’t you want to know how well a person performs sober in order to evaluate how poorly he/she should perform now that he/she is supposedly drunk? Instead, you will be judged against some national standard on how people should perform these tests.

Conditions beyond your control.

If you are still not convinced, consider this. Not only you are not trained in performing these exercises, the conditions are far from ideal and outside of your control. If you decide to play football, you wear shorts and cleats to the game. Many of our clients are performing these field sobriety exercises in dress shoes/heels and suits/dresses. These field sobriety exercises are still physically demanding and ideally require proper attire.

You are also likely performing FSTs on the side of the road getting hit by wind waves from passing cars flying by. You are being watched and judged by a stranger wearing a badge, a gun, and a baton. The weather and light conditions might not be ideal. You might simply be really tired at 3 am. And finally, most people do not test well under pressure; even sober people fail these “tests”.

You won’t get a prize. You’ll likely lose the game if you play.

As you can tell from the reports and previous illustrations, the field sobriety tests are very subjective. The officer is trying to find impaired drivers; you will not be able to impress him/her with your outstanding one leg stand. And if you do perform it well, then the officer simply does not check some of the boxes on the report. You don’t get a prize. So when you decide to perform these exercises remember that you can only lose (by building the case against yourself). 

Frequently asked questions

1. Wouldn’t I get an officer mad if I don’t comply?

You might irritate an officer, but that is not a crime. Police officers are trained to perform their duties under stress and pressure. But you should NOT mistake standing up for your right to refuse the field sobriety tests with being rude. There is a difference between politely telling the officer that you do not wish to perform any tests at this time and yelling it. We have seen reports where clients do in fact give up their rights by complying while at the same time are rude with the officer. So how is that any better than being polite and refusing perform FSTs? By the way, police officers should be routinely trained and educated on driver’s rights/laws. It should not shock the officer that you are simply exercising your rights.

2. And if I refuse to perform FSTs, and he/she gets mad at me, won’t he/she arrest me and take me to jail?

Possibly. But remember if the officer has probable cause to believe that you drove under the influence, you will be arrested anyway. If you perform the field sobriety tests, then you are only making it easier for the officer to show probable cause. The FSTs provide additional evidence of you being under the influence (positive evidence will not be highlighted in the reports). Ultimately, it is most difficult for the officer to show probable cause immediately after pulling a driver over but before you answer any questions or do any tests. If you refuse to perform FSTs, the officer will have to make a decision on whether to arrest you at that moment on limited evidence he/she has. The case might ultimately be thrown out if the judge finds that there was not a probable cause to arrest and if the case moves on then it will be on very limited evidence against you.  

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