Can you refuse field sobriety test following a DUI/DWI stop?

The holiday season is here, and many will hit the roads for parties and various family events.   This holiday season, unlike the previous two years, carries with it no restrictions and we can expect more traffic this holiday season.  With that said, increased traffic means an increased police presence on all major highways in Pennsylvania and New Jersey. Police will be on lookout for drunk drivers as it is a very common offense during the holiday season. 

If you are stopped for suspicion of a DUI/DWI in Pennsylvania or New Jersey, a police officer or state trooper will likely ask for you to submit to a field sobriety test.  Field sobriety tests unlike chemical tests (blood or breathalyzer), are optional.  This means that you will not lose your license or incur any additional criminal penalties if you refuse any of the field sobriety tests. 

The National Highway and Traffic Safety Administration (NHTSA) has created standardized field sobriety tests which often form the basis for probable cause to arrest the person for suspicion of DUI.  These tests, in theory, test and evaluate a person’s ability to operate a motor vehicle safely, but specifically tests motor coordination skills.  These standardized tests include the following:

• Horizontal Gaze Nystagmus (HGN)
• Walk and turn
• One leg stand test

Horizontal Gaze Nystagmus (HGN)

Nystagmus is the involuntary jerking of the eyes. This involuntary jerking and a lack of smooth pursuit (horizontal gaze) of a pencil or pen light can mean that a person is under the influence of alcohol or some drug. While involuntary jerking can demonstrate intoxication there are several medical explanations such as diseases of the inner ear, and other physical disorders which could also cause a person’s eyes to simulate that movement.

Walk and Turn Test

The Walk and Turn Test requires that the individual walk on a line either real or imaginary. The person’s left foot must move in a line ahead of his right foot in a “heal to toe” stance. The person is required to keep their arms at their sides and take (9) nine “heal to toe” steps, turn, and take 9 more “heal to toe” steps. This test also requires that the officer demonstrate the movements prior to asking the individual to complete it.

One leg stand test.

The One Leg Stand Test, similar to the Walk and Turn Test, requires that the officer provide the individual with instructions and provide a demonstration. This test requires a person to raise one foot approximately six inches off of the surface and keep it parallel to the ground. While holding that position the individual is required to count out loud until told to stop.

Keep in mind that if you do submit to any of these tests, the police officer or state trooper must demonstrate each of these tests prior to you taking them.  This means that if the officer does not demonstrate the test for you, your criminal defense lawyer can request that the results of the field sobriety test be suppressed during your pre-trial motion to suppress evidence.

If these field sobriety tests are not admissible, there is strong likelihood that police will not be able to establish probable cause for the arrest and the case will be dismissed for a lack of evidence.  This all must occur at the pre-trial stage and its important that your criminal defense attorney assert your constitutional rights.

It is important to keep in mind that if you do not submit to a field sobriety test, the prosecution will likely argue consciousness of guilt. This means that they will tell the Judge or jury that you did not submit to the test because you knew that you were drunk or intoxicated or impaired.  If you refuse the test, you should tell the police officer your reason for doing so.  In many cases a person who has any type of physical limitations, prior injury or lack of mobility, will not perform well in these tests.