Can You Refuse Field Sobriety Tests During a DUI Stop?

When law enforcement officers have reasonable suspicion to pull you over for potentially driving under the influence (DUI) or alcohol or drugs, or stop you for committing a traffic offense, they are performing what is known as an investigatory stop. This means that any evidence they obtain can be used against you if you are formally charged with a criminal offense.

While there are many things officers may note to suggest you are under the influence and therefore should be subject to further investigation, they must have enough legal basis – known as probable cause – in order to arrest you. One of the first steps they will take to gather probable cause is to request that you perform a series of tests. These are known as field sobriety tests, and there are three specific tests that comprise Standardized Field Sobriety Tests:

  • Horizontal Gaze Nystagmus – You have likely seen this test performed on DUI suspects. It involves a law enforcement officer having you track an object, often a pen or some type of light, as they move it across your field of vision. Officers are trained to identify nystagmus, which is involuntary eye movement that commonly indicates impairment by alcohol or drugs.
  • Stand and Balance – During this field sobriety test, an officer will ask you to raise one leg off the ground and count – either out loud or silently – to some predetermined number. This is referred to as a split-attention test because they are asking you to perform two tasks at once.
  • Walk and Turn – Law enforcement will instruct you to walk in a straight line, turn around once you reach a certain point or count to a certain number of steps, and walk back in the same manner. This is also a split attention test.

While these tests, and other field sobriety tests officers may ask you to take (such as tilting your head back and touching your nose, reciting the alphabet, or counting backwards), may appear to help officers in gauging your impairment, the fact is that they are widely disputed as being arbitrary, inaccurate, and unreliable. There are many factors which can impact your ability to successfully complete the tests, including pre-existing medical conditions, physical and mental health, weather or environmental factors, age and mobility, and more. They are not an objective indicator of impairment and because of this, they are not mandatory.

Even though officers may not inform you that field sobriety tests are mandatory during a stop, you should understand you are under no legal obligation to take them, and you should politely refuse them. They are designed to be used against you, and by performing them you risk giving law enforcement more evidence to arrest, charge, and potentially convict you of a crime.

Should you refuse to take field sobriety tests, law enforcement officers will need further justification to suspect you are under the influence and may perform any other testing. This can include chemical tests of your breath, blood, or urine. While you can refuse preliminary breath tests administered in the field, you must take any chemical test administered at a jail or police station under penalty of implied consent laws. Implied consent is given by all motorists as a condition of driving, and refusing a secondary chemical test in West Virginia will result in an automatic suspension of your driver’s license and disqualify you from participation in the deferral program. As such, it is typically advised that while you can refuse a preliminary roadside test, you should not refuse non-roadside chemical tests of your breath or blood.

At Sutton & Janelle, PLLC, our Berkeley County DUI attorneys have extensive experience protecting the rights, freedoms, and futures of clients charged with all types of DUI offenses. This includes DUI charges involving motorists who refused field sobriety tests, or drivers who believed they failed those tests. Our focus on the facts inherent to your stop and arrest – including whether or not a stop, search, and arrest were lawful – and other evidence gathered by law enforcement allow us to construct effective defense strategies that can be used to challenge the government’s case against you.

If you wish to discuss a recent DUI arrest with a member of your team, we encourage you to contact us for a free and confidential consultation.

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