Can I refuse a field sobriety test?

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You can and should refuse to participate in field sobriety tests - especially if you are sober!

If you are asked to exit your vehicle on suspicion of drunk driving, the police officer may administer field sobriety tests. Field sobriety tests are used to provide probable cause for the police officer to arrest you. Make no mistake - they aren't designed to determine if you have been drinking. They are all but worthless for that. Police are looking for probable cause to arrest you, and these unscientific tests help them establish probable cause.

DWI Lawyer P. Adam Militello, Esq.
P. Adam Militello, Esq.

Is it legal to refuse Field Sobriety Tests?

Yes, it is legal to refuse these tests and you should. However, if you do refuse to take the tests, you will quite likely be arrested. If the police officer smells alcohol on you, you're probably going to be arrested anyway. So, if you are going to be arrested, at least get arrested without supplying police with more (unreliable) evidence against you.

The three "standardized" and most common field sobriety tests are:

  • Horizontal gaze nystagmus (HGN): In this test, the police officer will pretend to determine if there is a jerking of your eyes as she directs you to follow a pen passing across your field of vision. There are no less than 47 causes of this jerking, and the test has a 37% false-positive rate, but police like to claim HGN is an indicator of intoxication. You will fail this test. If you don't, prosecutors will ignore the result and charge you anyway.
  • Walk and turn: In this test, you will be asked to walk heel-to-toe for nine steps, turn around by keeping your lead foot planted and taking short steps to turn, and then take nine steps back in the direction you came, heel-to-toe. You will be given the directions quickly, they will be hard to follow, they will not be explained further without the police officer saying that your lack of understanding was a sign of intoxication, and you will fail. The test has a 52% false-positive rate. In other words, if you pass this test, you are more likely drunk than sober.
  • One-leg stand: In this test, you will be asked to stand, lift one leg off the ground, hold that leg in place, keep your balance and do all of this while looking at the toes of your standing leg. You will do this well. But eventually you will lose your balance. And then you fail.

Police will usually offer a "pre-screen" alcohol test of your breath. They will ask you to blow into a small device that will provide them with uncalibrated BAC result. They will lie and tell you that the test doesn't give a BAC, but "only gives a positive or negative result for alcohol." Refuse this test.

Not only are these tests unscientific and inaccurate, they can be nearly impossible for someone who has not had even a drop of alcohol to perform without error. If you are overweight or over 40, you aren't going to pass. Don't even try.

DWI Attorney P. Adam Militello, Esq. is highly skilled in identifying mistakes in the administration and results of field sobriety tests. If police video is available, we may be able to determine if the tests were administered incorrectly. We constantly explore options to have the case dismissed or the charges reduced.

Failed the Standardized  Field Sobriety Tests? Find out how we can help.

If you are facing a DWI charge in Rochester or one of the surrounding counties, contact The Militello Law Firm for a free telephone consultation and case evaluation. Our phone number is (585) 485-0025. We offer upfront pricing on our website, excellent client reviews, and outstanding trial results.

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Militello Law Firm
2480 Browncroft Blvd.
Rochester, NY 14625

1 University Drive
Geneseo, NY 14454

Phone: (585) 485-0025
Fax: (585) 286-3128