It is 11:00 p.m. and you are driving home. You have just left the bar after having dinner and some drinks with friends. Flashing lights are in your rearview mirror and you panic, even though you had only had two alcoholic drinks. Then you remember the glass of wine you had after work. You know your limits, and feel completely fine, but thoughts of poor judgment go through your head, because what if your blood/alcohol content is above the legal limits?
I am frequently asked what people should do if they are pulled over under the suspicion of OUI (Operating Under the Influence). The first thing people ask is whether or not they should take the breathalyzer test. That discussion is important and often depends on a person’s particular situation. Of more interest is the question I am never asked, “Should I submit to field sobriety tests?”
I am never asked this question because nearly everyone I have spoken with does not realize that declining to perform roadside field sobriety tests is an option. In a typical interaction with police, after a driver is asked to get out of the car, the officer will instruct the driver to perform field sobriety tests. Although the officer will generally not mention that a person can refuse to take the tests, be assured that you absolutely can. Not only is refusing to take the test an option, but if a motorist decides not to take the test, the refusal is inadmissible in any trial on the charge. To put it plainly, if you refuse the field sobriety test, a jury will never even know that it was offered.
Field sobriety tests can be challenging for anyone, and the scoring of these tests is left to the discretion of the investigating police officer. Given that your performance of these tests is optional and your refusal to perform the test cannot be used against you, you should consider quite carefully before agreeing to submit to a field sobriety test. In general, my advice would be to refuse the test, even if you have only had a drink or two.