Suspected of Operating Under the Influence? You can refuse the Field Sobriety Tests.
Most people will say that at some point in their lives they have been advised to refuse the breathalyzer test. Generally, when suspected of operating under the influence, this is sound advice. There are, however, other factors to consider when declining to take the breathalyzer or breath test. In deciding whether to take the test, you should consider the amount of alcohol you consumed, whether you are on any medications that would affect the test, any prior offenses that would trigger an increased license suspension for the refusal and whether you plan to contest the allegations against you in court.
During a roadside stop, you will also be asked to perform field sobriety tests. You are also permitted to refuse field sobriety tests; a refusal that, unlike the breathalyzer, will not impact your license to operate a vehicle. The officer can, and likely will, still request that you take a breathalyzer test post refusal, but with less support for that request. During the academy, the police officer conducting the motor vehicle stop is taught to break the stop down into several stages. These stages include operation, the stop, exit of the vehicle, field sobriety tests, etc. If you deprive the Commonwealth of one major component of the stop, there exists less evidence to support both a request to take the breathalyzer test and a subsequent conviction for Operating Under the Influence.
If you are asked to take the breathalyzer, and refuse, your license can be suspended between 180 days and lifetime, depending upon the number of prior offenses. In challenging the loss of license for a refusal, the driver can claim one of three defenses (1) the police officer did not have reasonable grounds to arrest the driver for operating under the influence, (2) the driver was not arrested for OUI; or (3) the driver did not refuse to take the breath or blood test. In cases where the driver refuses to perform field sobriety tests and subsequently refuses the breathalyzer, the driver may have a stronger case to support a challenge based upon a lack of “reasonable grounds.”
Logistically, you must consent to field sobriety tests prior to performing the tests. At the same time, the police are not required to inform you of your right to refuse the field sobriety tests. If you do give consent, any physical actions in can be used against you at a later trial. A refusal is not always clear cut. For instances, you may agree to take the tests, however, after hearing the instructions realize you cannot perform the tests. If you tell the Officer “I can’t do that” or the like prior to beginning the test, you are refusing the test. The court looks at this scenario as a catch 22 – take the test and fail or refuse the test and be arrested. While the latter will likely happen, you can still refuse to provide the Commonwealth with evidence that can be later used against you in the form of field sobriety test clues of impairment. If you choose to refuse to take the field sobriety tests, you are not penalized by any associated loss of license. The registry of motor vehicles can suspend your license for refusing to take the breathalyzer test; that is not the case with field sobriety tests.
During the course of any Operating Under the Influence of Alcohol arrest, the driver will be asked to sign a document acknowledging his/her decision to refuse the breath test or breathalyzer. This refusal form acknowledges any associated rights and potential ramifications of that decision; you will not be asked to sign a similar form with respect to the field sobriety tests.
If you have been arrested for Operating Under the Influence of Alcohol and have a question about the admissibility of either field sobriety tests or the breathalyzer, call Criminal Attorney Kristen F. Bonavita for a free consultation at 978-376-6746.