March 24, 2014
It occurred to me that over the course of the hundreds of DWI cases I’ve defended, the issue of whether or not to take the FSTs has rarely come up. Sure, clients ask all the time, “should I have refused the chemical test?” But no one really ever asks if they should have refused the FSTs. So I have to presume that’s because most people don’t realize that they can. Well, I am happy to inform everyone (at least in NYS) that you do not have to perform the FSTs just because the officer asks you to!
There is no law, rule, regulation or whatever in NYS that requires a driver to comply with an officer’s request to take FSTs (note, however, that refusing to take the roadside breath test [which is not an FST] is a traffic infraction). What does this mean? Just what it says! If you’re in the unfortunate circumstance of finding yourself standing outside of your vehicle – often in the dark of night and bitter cold, with cars whizzing past you while a well-trained and armed civil servant tells you to “follow the tip of the pen” or “stand heel to toe (without moving!) while I give you these instructions” or to perform some other circus monkey-like feat, you have the right to say no – or nothing at all, for that matter – and refuse to perform any of the tests.
Why would you want to do this, you ask? I’m not saying you would (mostly because I’m not really allowed to give legal advice in this sort of forum); I’m just saying it’s an option. Every case is different, and you know yourself and your abilities better than anyone else; so the decision is yours as to whether or not to perform the tests. But, as with most issues in a DWI case, there are pros and cons to whatever you decide to do…or not do.
The purpose of the FSTs is to assist the arresting officer in establishing probable cause to determine whether the driver was operating the vehicle in violation of VTL 1192 (impaired or intoxicated) and make a subsequent arrest. The presumption is that if you fail these tests of physical wonderment, you are clearly too intoxicated (or at least too impaired) to drive a car. So refusing to take these tests may make it more difficult for the arresting officer to determine (legally anyway) whether you were impaired. Keep in mind, however, the officer is making observations of you and taking notes from the time s/he decides to pull you over; so if you’re all over the road for 4 miles and pour yourself out of your car with an open container in your hand after you eventually pull yourself over onto someone’s front lawn taking out the treasured garden gnome and maybe the corner of the front porch in the process, well, refusing to take the FSTs may not help you out that much in the big picture.
FSTs and the administration thereof are subject to mistakes and errors in interpretation by the arresting officer. And my personal opinion for the ability (or inability) of the tests to actually determine intoxication aside, the fact is that the tasks you are asked to perform are nothing like other physical activities in which you may regularly engage (Sure! I routinely stand on one leg with my hands at my side for prolonged periods of time everyday at work! Who doesn’t?). Moreover, even if you do fail all three of the standardized tests (HGN, Walk and Turn and One Leg Stand – the only “reliable” tests), it’s still not a 100% certain that you are intoxicated (more like only 80% certain; what is that, like a “B” in school? “B-“ maybe? No one’s making the honor roll with low B’s, I can tell you that!). The tests are simply indicators of intoxication. So perhaps by not performing these highly subjective tests you may take away a weapon that the prosecutor can use against you to show you were driving while intoxicated.
But of course, there is always a price to pay for your decision! If you do refuse to take the FSTs, the prosecutor can introduce your refusal as evidence against you at your DWI trial, as an inference that you knew you were intoxicated so refused to take the tests to try to protect yourself. So you may want to remember that before you start thinking you’re going to outsmart the system if, god forbid, you’re ever facing the working end of a DWI arrest. But you may want to keep this in mind, too: “the inference of intoxication arising from failure to complete the tests successfully ‘is far stronger than that arising from a refusal to take the test.’” People v. Berg, 92 NY2d 701, 706, 685 NYS2d 906 (1999) (quotation omitted) (emphasis added).
Officers are not required to advise you of your right to refuse the FSTs. So it’s incumbent on all of us to remember on or own that we have that right, and to decide if we are better or worse off if we exercise it. There are a lot of factors in a DWI case, and any one of them can undermine your quick-thinking FST refusal and perhaps any good that may have come from it. It’s tough to do in the pressure cooker of an imminent DWI arrest, but you must weigh your options carefully before you decide to take or refuse any part of the DWI arrest process.