Every day, across the country, officers ask people to perform tests, “to make sure they’re ok to drive.” Usually, the driver will perform the tests, but is it better to perform the tests or refuse them?
There are two ways that I see the officers make the request for drivers to perform the test. The most common way is for the officer not to ask at all, but to simply direct them to start performing the tests. The second way that I see the test brought up, is that the officer will say, “I need you to perform these tests to make sure you’re ok to drive.” The officer implies that the test is for the benefit of the driver. They can just quickly do these tests and be on their way. The other way implies that the driver has no choice in taking the tests. Both of these ways are shady.
You do not have to take the standardized field sobriety tests (SFSTs) and you shouldn’t. An officer can consider refusal to perform the SFSTs as a clue that you are intoxicated. They may infer that you are refusing to take the test, because you think you will fail. Before making an arrest for DWI, an officer should be taking into everything into account, not just the refusal. The problem for the driver, is that there are a lot of things that have to take place before asking you to perform the SFSTs.
Most drivers come into contact with an officer because they broke a traffic law. That only gives the officer the right to stop you long enough to investigate the traffic violation and write you a ticket. If he wants to have you perform field sobriety tests, he has to have reason to believe that you are driving while intoxicated. Common reasons are odor of alcohol, slurred speech, admission to drinking, the way you were driving, and the time of day (there are a lot of DWI stops that happen at 2:00 AM on a Friday or Saturday night).
If you are being asked to perform the tests, the officer already has reason to believe that you are intoxicated, and is trying to build his case against you. If you have been drinking, taking the test is just helping the cop make the arrest and helps the DA’s office get a conviction against you after you are arrested. None of these are in your best interest.
So, what should you do if an officer asks you to perform field sobriety tests? Request an attorney for advice. You must be very direct and cannot be ambiguous. “I need to speak to an attorney for advice.” Once you have made the request, the officer should stop questioning you and stop requesting that you perform the tests at that point. The officer will still probably use the refusal against you, but that’s better than a failed field sobriety test. At that point I can also argue that the refusal to do field sobriety tests should not come into court, because you weren’t refusing the test, you just wanted an attorney’s advice on whether or not you should perform the test.
Remember, if you are stopped and an officer brings up alcohol or asks where you’re coming from and the answer is a bar, tell the officer that you are choosing to remain silent, you want to speak with an attorney, then stop talking. Nothing good comes after the cop brings up alcohol if you keep talking.
Sean Henricksen Law Firm
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