The short answer: Yes, you can legally refuse any field sobriety test. Ours is an accusatorial system, and you are under no obligation to assist your accuser. You can also refuse a preliminary breath test. However, if you refuse to take a breath, blood, or urine test after your arrest, you will face legal consequences.
So, yes — you can refuse field testing. But should you? We’ll dig into that answer below:
What is a field sobriety test?
If a police officer suspects you of driving under the influence, they can pull you over and request that you complete a field sobriety test.
These tests are voluntary, which means that you have a right to refuse to take them, but you will never be told that by an officer. The assumption is that you paid attention in civics class (ignorance of the law is no excuse), so you are fully versed in your constitutional rights to remain silent and be free from warrantless searches of your person. Officers have the obligation to obtain sufficient evidence to form probable cause before an arrest, and they are counting on you forgetting your civics lessons to get you to provide them that evidence.
There are only three specific tests that have been officially endorsed by the National Highway Traffic Safety Administration:
- Walk and turn test (WAT)
- One-leg stand test (OLS)
- Horizontal Gaze Nystagmus test (HGN)
Here’s what each of those tests entails:
Walk and turn test
The driver is asked to walk heel to toe in a straight line for nine steps. Then, the driver must turn around and complete the same nine steps back to the original location. The officer looks to see if you can maintain your balance and position on the line and if you remember to turn around and come back in the prescribed manner.
One-leg stand test
The driver is asked to lift one leg six inches off the ground and stand on the other leg for a specified duration of time (30 seconds), without losing balance. The officer is seeing if you can maintain your balance or if you have difficulty keeping your foot in the air.
Horizontal Gaze Nystagmus test
In this test, the officer will hold an object (such as a pen, light, or finger) and ask the driver to follow it with their gaze as the stimulus is moved horizontally across their field of vision. The officer will be looking for certain involuntary eye movements that occur when the eye reaches certain angles. These involuntary movements are supposedly more pronounced in those under the influence of alcohol and start when the eye reaches 45 degrees or earlier.
Alternative tests
An officer may encounter an individual who cannot perform the standard field sobriety tests (SFST). They may decide to use other tests such as counting backward, reciting a section of the alphabet without singing, or finger dexterity tests. These tests aren’t standardized by the National Highway Traffic Safety Administration, so they may be even more unreliable.
Are field sobriety tests objective?
No, field sobriety tests are not entirely objective. Because it’s up to the officer to determine how you performed on the test, these tests have considerable subjectivity — which affects their reliability.
Are field sobriety tests reliable?
Absolutely not. These tests fall squarely in the category of made-up cop nonsense.
The problem is that they have been sold to police, prosecutors and judges as “science,” so valid or not, you will have to deal with their claimed scientific validity if you participate in them. There have been six major studies since 1977 (all conducted by state actors–in other words, police) to determine whether field sobriety tests are reliable. The studies indicate that the tests are somewhat reliable at predicting whether a person is at or above a certain alcohol concentration, but they are far from perfect.
Another problem is that the tests themselves don’t just need to be effective at predicting intoxication (which they aren’t) — they also need to be administered correctly. If the officer doesn’t perform and evaluate each test correctly, the test is even more unreliable.
If a driver is nervous, has an injury, or has pre-existing difficulties with balance and coordination, they could fail the tests even if they are sober or under the legal limit.
But because the evidence gained in these tests can be used against you later on (regardless of your actual blood alcohol content), we don’t recommend taking them at all.
What if the officer asks you to exit the vehicle?
You are legally required to exit your vehicle if the officer tells you to. Refusing to exit can lead to charges of resisting or obstructing an officer.
Field sobriety tests vs. preliminary breath tests
If you refuse the field sobriety tests, you may be asked instead to take a portable breathalyzer test (which can also be called a “preliminary alcohol sensor”).
Preliminary breath tests are handheld devices. They are not considered reliable enough to be used as evidence of a specific BAC at trial, but they can be used to establish probable cause for an arrest.
Can you refuse a preliminary breath test?
Breath tests are considered searches under the Fourth Amendment to the United States Constitution and cannot be compelled without a warrant.
You can therefore refuse the preliminary breath test before an arrest in almost every circumstance. The only exception to this rule may be if your right to refuse searches is diminished by being on probation.
However, you cannot refuse testing after a DWI arrest without legal consequences. Minnesota makes post-arrest test refusal a criminal offense, usually punishable at a more serious level than the DWI itself.
Because portable breathalyzer devices are essentially tinker-toys and carry an undeserved amount of weight by cops and courts alike, we recommend refusing all roadside sobriety tests, including the preliminary breath test.
What happens if you refuse to test?
Officers are good at making their request to test sound more like a requirement. But the truth is, you are not legally required to take field sobriety tests or portable breathalyzer tests, and you will not face legal penalties for refusing to participate in field testing. You are simply exercising your constitutional rights–and that’s a good thing. It is why we have them.
The only test you cannot refuse to take without legal consequences is a breath, blood, or urine test following an arrest for DWI.
Can you be arrested for refusing to participate in field tests?
No, you cannot be arrested simply for refusing to test. As indicated, you are simply exercising your constitutional rights. However, an officer can arrest you if they have other probable cause to believe you are intoxicated.
At that point, you will be taken to the police station or hospital to take a breath test or a blood test. Refusing to perform these tests, unlike the roadside tests, can have very serious legal consequences.
What happens if you refuse to test at the station?
Refusing a breath, blood, or urine test after an arrest can lead to increased penalties, including having your license revoked for a much longer time than if you took the test and failed. This is where “implied consent” laws come into play — when you get behind the wheel, you are deemed to have consented to taking these tests if you are lawfully arrested on suspicion of DUI.
You can still refuse to test — but you will face increased penalties for doing so. The specific penalties vary by state, but in Minnesota, your license can be revoked for a minimum of one year. There are circumstances where these potential increased penalties are worth the price, but you should consult with counsel while making this decision so that the best choice can be made for the particular facts of your case in real time.
Should you refuse to test?
Field sobriety tests are subjective, unreliable, and can be used against you if you’re charged with a DUI. Portable breathalyzer devices can also be unreliable. For these reasons, we recommend refusing all roadside sobriety tests when you’ve been pulled over.
You don’t want to allow unreliable evidence (or evidence that has been improperly obtained) to be used against you in court.
