Created by FindLaw's team of legal writers and editors | Last updated October 22, 2018
It’s your very unlucky day. You’ve been out drinking beer with co-workers at a weekly happy hour. As you attempt to navigate your way home through downtown, you begin swerving a little and veering off into the lane next to you. You see flashing lights and realize you are being pulled over by the police. The officer approaches your car, asks a few questions, and immediately notices the odor of alcohol on your breath. She has a hunch you’ve been drinking and asks you to step out of the car to perform some simple tests to determine if you are too impaired to be driving.
These “simple tests” she is referring to are called field sobriety tests (FSTs) or roadside sobriety tests. You may wonder, “Can I refuse to take field sobriety tests?” The following will help you better understand the laws behind field sobriety tests, the evidentiary breath test (Breathalyzer), and how implied consent laws come into play in respect to driving under the influence (DUI) investigations.
There are a number of field sobriety tests an officer may ask you to perform to determine your level of impairment. There is a battery of three tests, however, that are officially endorsed by the National Highway Traffic and Safety Administration (NHTSA):
Generally speaking, you are not legally required to take these tests, regardless of how many times an officer may ask you to do so. The tests are meant as an investigative aid to the police officer. Keep in mind: this still may not stop the officer from arresting you for a DUI if he or she believes there is enough probable cause that you are under the influence of alcohol or drugs.
While still at the scene of the traffic stop, and typically after you have performed the above-mentioned field sobriety tests, an officer may ask you to blow into a hand-held breath device, sometimes called a preliminary alcohol screening device (PAS). This breath device can measure your blood alcohol concentration (BAC), but is not the same as the evidentiary breath sample you will be required to submit later at the station.
A PAS device can indicate the presence and concentration of alcohol in your system based on a breath sample. However, you are not required to submit to a PAS test at the scene of the incident per implied consent laws. A PAS test result is akin to an FST in the sense that is it merely used to assist the officer in determining if there probable cause to arrest a suspect.
While you can utter the words, “I refuse to take a breath test,” when asked to submit to the “Breathalyzer” or the evidentiary breath test, the reality is that if you do refuse the breath test, it could result in serious consequences. Your license could be automatically revoked and your insurance rates could drastically increase, for example. Why? Because implied consent laws require you to submit to a breath test if asked by an officer as a condition of obtaining your driver’s license. Keep in mind that if you take your case to trial, the prosecutor is allowed to tell the jury that you refused a chemical test.
However, the law is different when it comes to blood tests. You can legally refuse to submit to a blood test. In 2016, the U.S. Supreme Court decided Birchfield v. North Dakota, a case which effectively mandated that states may not criminalize a suspect’s refusal to take a blood test, absent a warrant, as an ordinary incident of an arrest for driving while impaired. The only exception is in an exigent circumstances situation where evidence may be lost absent immediate action and a subject is unable to consent to perform a breath test, such as being unconscious at the scene of an accident.
If you performed poorly on a series of field sobriety tests, or refused to take any at all, and the officer still arrested you, you may wish to speak with a local DUI/DWI lawyer who can review the police report and advise you about your case and any legal or administrative consequences of a plea or conviction.
Contact a qualified DUI attorney to make sure your rights are protected.
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