Barbara A. Bowden

Tacoma, WA DUI Attorney

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Can I refuse Voluntary Field Sobriety Tests?

If you have been pulled over by law enforcement or otherwise contacted by law enforcement, and you have been asked whether you will submit to voluntary field sobriety tests, you have the right to refuse to submit to these tests. 

The answer to this question is a bit more complicated than it seems. The short answer is that yes, you are not required to engage in field sobriety testing if you are stopped on suspicion of DUI. The more complex answer is that while you can refuse field sobriety tests, the Washington State Supreme Court ruled in 2016 that such a refusal could be used against you in court. The theory would be that you refused the test because you knew you were too impaired to pass. Despite this, you may still be better off refusing field sobriety tests, perhaps offering an explanation to the officer in the form of:

  • I’m declining the test because I have a prior or current injury, which would prevent me from performing the tests.
  • I’ve been advised by my attorney to decline the field sobriety tests.
  • I will not take the field sobriety test unless you record them, because I want evidence of whether I passed or failed.
  • While I do not believe I am guilty, the tests are subjective, and I’m therefore declining.

Unfortunately, many people believe if they “pass” the field sobriety tests, they can go home, with no charges filed. This is incredibly rare, and many attorneys would advise clients to skip the tests if they have had anything to drink or have smoked marijuana recently. Even those who have had absolutely nothing to drink or smoke could potentially “fail” the field sobriety tests, as there are many things which can negatively impact performance. The driver’s age could be a factor, as could his or her weight, and whether there is a pre-existing physical issue. The driver could be fatigued at the time of the field sobriety tests, could have an illness which could negatively impact the results, or could have an inner-ear problem which affects balance. A female driver could be wearing impractical shoes which hinders performance on a rocky area. There could be poor weather conditions at the time of the field sobriety tests, or the driver could suffer from any number of physical or mental disabilities.

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You should politely decline to perform any field sobriety tests.

The field sobriety tests consist usually of three tests:  the eye test called Horizontal Gaze Nystagmus Test, the walk and turn test, and the one-leg stand test.

A significant number of people are unable to stand on one leg with the other outstretched for thirty seconds under any circumstances at all. Few police officers are trained to take limitations of the driver into consideration, therefore while the tests are considered “standardized,” the results are not. Typically, when an officer asks a driver to submit to field sobriety tests, the officer has already made up his or her mind regarding the driver’s impairment—the tests are just to “confirm” those suspicions, meaning in some cases the officer may see what he or she expects to see. There are simply too many ways field sobriety tests can go wrong, even if you are not impaired: you could misunderstand the officer’s instructions, or you may be so nervous that you perform poorly. In the end, it is usually in your best interests to refuse the field sobriety tests, however, refusal does not prevent an arrest.

The officer’s opinion as to how well or poorly you perform on these tests will be admissible in court and in your DOL hearing against you.  In addition, the officer may ask you to blow into his or her portable breath test device, or PBT for short.  The PBT is not an alternative to the evidential breath test at the police station or jail where you are taken after being arrested.  The PBT is not accurate or reliable and is not admissible in court to prove alcohol concentration or guilt under the DUI statute, but it is additional evidence that the officer may rely upon to establish probable cause for your arrest, if the proper protocols are followed.

In sum, it is in your best interests to politely decline all field sobriety tests.  Without the field sobriety tests, the officer may not have probable cause to arrest you.

Call our DUI lawyer office in Lakewood, Washington to learn more about whether or not you can decline field sobriety tests.

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