Should I refuse field sobriety tests in a DUI?


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Should I refuse field sobriety tests in a DUI?

Should I refuse the field sobriety tests in a DUI?

Horizontal Gaze Nystagmus (HGN) Field Sobriety Test

Should I refuse to submit to the field sobriety test if I am pulled over for a DUI?   You are not legally required to take a field sobriety test. This is unlike the chemical tests to determine your blood alcohol concentration [BAC]. When asked to take a chemical test, by a police officer who has already arrested you, if you refuse there are serious consequences, i.e., loss of drivers license for a year. I would recommend that you respectfully decline to take the field sobriety test. Remember, always be polite and courteous to the officer. If you are rude or become abusive or obstructive, the only person who is going to lose is you, not the police officer. You can certainly refuse the field sobriety test in a polite and courteous manner.

Always be polite, but say, “on the advice of counsel, I elect not to participate in any field sobriety test.”  And then be prepared for a response from the police officer.

  • Some Police officers will say, “if you pass the FSTs, you will not be arrested.”
  • Some deputy officers will say, “if you refuse to take the FSTs, you will be taken to jail.”
  • Some police agents will threaten to inform the court if you refuse to take the FSTs.
  • Some officers will tell you that your refusal can be used as evidence of your guilt, which is not true.
  • Do not allow the officer to trick or intimidate you into taking any FST.  FSTs are completely voluntary and it is your right not to take them.  Electing not to take them cannot be used against you.

Should I refuse the field sobriety tests in a DUI?  The answer is yes.  Those tests are voluntary, and there are no negative consequences to saying no to the FSTs.  However, you should be aware of a few related issues that may be confusing:

  1. A field breathalyzer, or PAS device, is considered part of the field sobriety testing.  You can safely refuse that test also, which just tests for the presence of alcohol, without consequence.
  2. If the officer has probable cause, or a reasonable suspicion that you are under the influence from observing you and your driving, the officer can demand that you take a blood test or a breath test, as an evidentiary test.  You are required under the implied consent law to take that test, or suffer additional punishment in court, and a mandatory one year suspension of driving privileges
  3. If you refuse all tests, including the PAS field breathalyzer (which again, is not an evidentiary test), then it is likely that you will be taken into custody.  You will be released without having to post bail, unless there is a warrant from another case that requires you be held, or if you have a prior DUI case, but the case becomes much more difficult to make stick against you, and that is to your advantage.  The fact you were arrested is inconvenient, but in the long run, is much better than having a DUI conviction and license suspension.

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