What is a field sobriety test and can I refuse one?


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If you were asked to exit your vehicle on suspicion of drunk driving, the police officer may have administered 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 just need probable cause.

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P. Adam Militello, Esq.

Can I Refuse Field Sobriety Tests?

Yes, you can and should refuse to take these ridiculous and unreliable tests. However, if you do refuse to take the tests, you will quite likely be arrested. Truth is, if the police officer can smell alcohol, you're probably going to be arrested anyway. The three most common tests in New York are the following:

  • Horizontal gaze nystagmus (HGN): In this test, the police officer will determine if, while you follow a pen (or other stimulus) with your eyes as he or she moves the pen back and forth in a horizontal motion, there is a jerking of your eyes. 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 not make sense, 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. You'll never hear a police officer admit that.
  • 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.

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.

Attorney Militello is highly skilled in identifying mistakes in the administration of and results of field sobriety tests. If police video is available, we can determine if the tests were administered incorrectly. We consistently explore options to have the case dismissed or the charges reduced.

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If you are facing a DWI charge in Rochester or one of the surrounding counties, contact us at 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, PLLC
2480 Browncroft Blvd.
Rochester, NY 14625

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