They are optional. That about sums it up.
If you are over 21 years old and not currently on DUI probation, you are not required to submit to the so-called field sobriety tests. You can say “no thank you.”
What we have all come to call “Sobriety Tests” are nothing more than subjective agility exercises used to compile circumstantial evidence of a conclusion already drawn. It has been shown that the FST’s are not conclusive of anything, however police and prosecutors are frequently successful in getting juries to believe they are and that is why, when you are asked to perform them, you say no.
The officer will say something like: “you just need to do a few tests so we can be sure you are safe to drive.” It’s a lie. The police lie. They are trained and permitted and expected to lie and you are expected to believe them. Don’t. What they are really saying is: “I want to compile as much evidence as possible against you, so I want you to give it to me…and I get to interpret what that evidence is and what it means.” Don’t!
I have long since lost count of how many DUI arrest reports I have read and each is almost identical to the other; red, blood-shot, watery eyes, slurred speech, staggered gait, strong odor of an alcoholic beverage emitting from the breath and person of the driver. I once read such a report when, three weeks later, the subject’s blood alcohol level came back and was 0.00%.
As for the reported performance on the field sobriety tests, it’s always about the same; each driver fails each element at about the same place and in the same way – just as it was in the case where the BAC was shown to be 0.00%.
However, if you are stopped and questioned about alcohol, regardless of whether you have had a glass of wine with dinner or a beer at the game or nothing at all, remember that you have the absolute right to remain silent and not answer questions.
As soon as you answer “yes” to a question about alcohol, the officer now has probable cause for a DUI investigation and, worse, he has evidence to use against you – evidence you provided.
Remember, too, that it is against the law for you to lie to the officer. If you have had a drink or two with dinner and you are asked about alcohol, your best response is: “I am not going to answer any questions without a lawyer present.” Sure, it might piss off the cop, but your rights are your rights and he is going to do what he is going to do whether you help him or not.
They will inevitably tell you that, if you don’t do the tests, they will have to take you to jail. Guess what: They were going to take you to jail anyway, so why would you give them more evidence to use against you?
One more thing, the Preliminary Alcohol Screening device they use to check your breath at the roadside, that test is optional, too. Say no! However, if they do arrest you and take you to the station or the hospital for a chemical test, to that one you must submit or lose your license for a year. Whatever the results, your DUI lawyer can deal with it.
The bottom line is this: You never have to worry about whether you have had too much if you have not had any at all. If you do, Uber and Lyft and even taxis have made it way too easy to avoid a DUI.
