If the police pull me over, should I take the roadside field sobriety tests? Do I have an option? Before I answer those questions, you should know this: In Minnesota, the police have to have a reasonable, articulable suspicion that you are actually impaired or over the .08 blood alcohol limit before they can ask you to get out of the car and take field sobriety tests. Why is that important? Several DWI cases have been thrown out of court because the police officer illegally asked the driver to get out of the car. How? Because it’s not illegal to drink and drive, it’s only illegal to be over the limit or impaired. The officer actually has to prove to the judge that he or she had specific facts to believe that you were over the limit or impaired, not just that you drank before you drove. If they can’t prove that, then they had no right to get you out of the car and we may be able to get your case thrown out.
There are usually 4 roadside field sobriety tests:
- the Horizontal Gaze Nystagmus (where they look for jerking in your eyes);
- the One Leg Stand;
- the Walk and Turn; and
- the portable (or preliminary) breath test (the handheld breath test on the side of the road or in the squad car, called the PBT).
Okay, now to the questions.
Should I take the roadside field sobriety tests? It depends, but usually no. If you are confident that you will not be over the limit and you feel in control of your body, then you may be okay taking the field sobriety tests. On the other hand, if you think there’s even a chance that you may be at or over the limit, then you have nothing to gain by taking the tests. Why? Even when people do well on the tests, I’ve never seen an officer let them go without having them take the hand-held breath test (the PBT). So even if you walk and balance perfect, the officer will ask you to take that roadside breath test, and if you fail it by blowing .08 or more, they’ll arrest you for DWI.
If I take the roadside field sobriety tests, do I have to take the PBT? No. You don’t have to take it. If you think there’s even a chance that you’re at .08 or more, then there’s no benefit to taking the roadside breath test.
What if I refuse the roadside field sobriety tests? The police have the right to arrest you if you refuse the tests or the PBT. When you read this, I’m sure your reaction is “then why would I refuse those tests?” Here’s why: the FSTs are tricky and they’re not natural (who walks heel to toe and turns in a military-style pivot?). If you take those tests, you’re likely to fail them because you’ve never practiced them before. If it turns out that you’re under the limit, then it doesn’t matter that you refused them. If it turns out you’re over the limit, then all you’ve done is make it that much harder to win your case. So if you think you are even close to the .08 limit, you are better off politely telling the officer that you are not going to take the field sobriety tests or PBT.
It is important to understand the distinction between refusing the field sobriety tests and PBT, and refusing the blood, urine or breath test at the police station or hospital. If you’re arrested for DWI, the officer will then ask you to take a blood, urine or breath test (on the Intoxilyzer 5000 machine). The Intoxilyzer breath test is a different test than the roadside PBT. It is a crime to refuse the blood, urine or Intoxilyzer test after you have been arrested for DWI. Also, you have the right to consult with an attorney within a reasonable time before you make a decision about the blood, urine or breath test. You should make every effort to get a hold of a lawyer before making that decision.
This is confusing, so here’s an example:
You’ve just been pulled over. The officer asks you to get out of the car because they suspect that you are driving while impaired. They ask you to stand and they start to give you one of the 3 roadside tests above (the walk and turn, the one-leg stand, or the HGN). You can politely decline their request. Then they ask you (or tell you) to blow into a hand-held PBT. You can politely decline that. At that point, they will arrest you.
After you are arrested, the officer will read you a form and tell you that you have been arrested for DWI and that refusal to take a test is a crime. This usually happens at the police station or hospital, but sometimes it happens in the squad car. They will tell you that you have the right to contact an attorney before making your decision, and then they will ask you to take a blood, urine or breath test. I am not recommending that you refuse this test. If you do not take this blood, urine or breath test, your license will be revoked for one year and you will be charged with a more serious crime. This is the actual test that counts against you in court, and if you pass it, you’re in good shape. If you fail it, you should get a lawyer because you will be charged with DWI.
I wouldn’t be a lawyer if I didn’t include a disclaimer: there are too many fact-specific variables to cover every situation in one document. Therefore, this information should not be relied upon for legal advice. The best thing you can do to protect yourself is to hire an experienced DWI lawyer. If you have further questions, feel free to call Ryan Pacyga Criminal Defense at (612) 351-1786 for a free consultation, or visit my website at www.arrestedmn.com You can also follow me on Twitter: arrestedmn.