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Should I Refuse a Roadside Field Sobriety Test?

Should you refuse a field sobriety test?Roadside field sobriety tests are one of several tools that police officers may try to use if they suspect you are driving under the influence of drugs or alcohol. After being pulled over and asked for your license and registration, the officer may ask you to step out of the vehicle. At this point, you are likely to be given a Terry search, which is where you are patted down for weapons. The officer may then ask you to perform one of three NHTSA-sanctioned field sobriety tests.

  1. The walk-and-turn test: This is where the officer will ask you to walk heel-to-toe in a straight line for nine paces. After the first nine paces, you must turn standing on one foot and begin walking in the other direction.
  2. The one-leg-stand test: With this test, the officer will ask you to stand on one foot with the other approximately six inches off the ground. You will then be asked to count aloud with your foot raised for 30 seconds.
  3. Horizontal gaze nystagmus: This test involves following an object or the officer’s finger with your eyes. In this case, the officer is looking to see if your eyeballs are jerking. A jerking of the eyeballs could indicate alcohol intoxication, but not always.

How Could I Fail a Field Sobriety Test?

There is one problem with all of these tests – they are designed to make you fail. Sure, we are criminal defense attorneys and you may believe we are biased on this subject. This is not the case. People have failed field sobriety tests even when they were stone cold sober.

Here is a list of factors that could make you fail a field sobriety test without being impaired by drugs or alcohol:

  • Your clothing: Two of the field sobriety tests would be more difficult if you were wearing sandals, boots or high heels. Even if you took off your shoes, what would you do if the asphalt were freezing cold or burning hot?
  • An illness: Do you have bad knees or a bad back? If so, both conditions could cause you to fail a field sobriety test. Certain medications could affect the outcome of the test.
  • The weather: Would you be able to stand on one leg and count to 30 if it were below 30 degrees outside? The weather could affect the test results.
  • Not understanding the instructions: You could become too nervous and preoccupied with the prospect of being arrested to listen to the instructions for the sobriety test. This could also cause you to fail.
  • The officer conducts the test incorrectly: Police officers may not perform or interpret the test correctly. They may even make up their own tests, such as asking you to count backwards. Both situations could lead to your arrest.

This is not an exhaustive list of reasons why you could fail the sobriety test and be arrested on suspicion of a DUI. You should always politely refuse a field sobriety test. Keep in mind, that the officer’s dashboard camera in the police cruiser will record everything you do and say during the test. By submitting to a field sobriety test, you are giving the prosecution more ammunition to convict you of a DUI.

Even if you are arrested for refusing the test, it does not mean you are automatically guilty. The state must prove that you are guilty before a conviction is possible. Whether you refuse or took the test, you should still speak with an attorney after being arrested for a DUI. An attorney could fight on your behalf to dismiss or reduce the charges.

If you were arrested for a DUI in California, the San Jose criminal defense lawyers at the Law Office of Daniel Jensen, LLP. can examine your case and help you formulate an effective defense strategy.


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