Can You Refuse to Perform Field Sobriety Tests?

May 3, 2016

Short Answer? Yep! But is that the smartest answer? Not necessarily.

     There is no legal requirement (in NY anyway) that a driver suspected of driving while intoxicated perform field sobriety tests (“FSTs”) just because the officer asks him or her to do so. And from a punishment perspective, there really is no consequence for refusing, i.e., you can’t get arrested or ticketed for simply refusing to perform the tests. (NOTE: this is not the case for the pre-screen breath test (“PBT”).  Refusing to blow into the little box on the side of the road is a violation of NYS VTL Sec. 1194.1(b), and although just a traffic infraction, a conviction can result in a fine, surcharge, up to 15 days in jail for a first offense, two points assessed to your license, and a DMV civil assessment of $750.)

     Because there’s no per se consequence, some people (including some attorneys) believe that performing the tests simply provides the cop and prosecutor with additional ammunition to arrest and convict you, and argue that you should never perform them. After all, no one ever does well on them, be they sober, drunk, physically limited, a professional athlete, or even a police officer.

     But an officer starts looking for probable cause to arrest a potential drunk driver long before the FSTs, and your performance on them is only one of many factors considered in determining whether probable cause to arrest exists. In most cases, I think it’s fair to say that a refusal to perform the FSTs is simply going to piss the officer off, which will get you arrested anyway. Do you really think an officer is going to let someone just drive off who they have reasonable cause to believe may be intoxicated or impaired simply because that person refused to do the walk and turn or the one leg stand? Not likely.

     So then do you take the tests? Or just lock yourself in the car, hide under the dash and hope the bad man goes away?

     Depends on your circumstances (I don’t really recommend hiding under the dash, by the way). No one knows you better than you. If you’re hammered drunk, maybe take a pass on the FSTs, since pouring yourself out of the driver seat before the tests even begin is not really putting your best foot forward. And watching a dashboard video where a cop stops the tests halfway through “out of safety for the defendant” is never fun for a DWI defense attorney to watch. And if you end up blowing a .25 at the station, a step for step reenactment of a scene from West Side Story probably won’t even spare you from some sort of conviction.

     But I have also seen many cases where the driver agrees to take the tests and the officer actually screws up the instructions or the administration of the test, which may help during negotiations and/or trial. Some cops just flat out lie about how someone performs on the tests, even in the face of crystal clear dashboard video to the contrary. And sometimes the driver actually delivers a not so terrible performance! In a high BAC case, that sort of evidence can be critical. Have any physical limitations or disabilities? Cops are supposed to ask about that first. And they do…sometimes. But taking the FSTs with certain diagnosed physical/mobility limitations can render any inference from them virtually useless to the prosecution.


     The bottom line is, I can’t tell you what to do. Sorry. That would constitute legal advice. I’m not allowed to just throw that kind of stuff around unsolicited. What I can say though is use your best judgment. If you think you’re going to perform horribly, refusing the FSTs might be worthwhile (after all, if you’re that lit up, it’s pretty unlikely that the tests are going to save you or help you in any way). If you’re borderline, it’s up to you! Like I said, if it’s gotten to the point where the cop is asking you out of the car to perform FSTs, you’re probably already in a “damned if you do, damned if you don’t” situation. But just remember, there’s no law that says you have to damn yourself!

     If you have been arrested for DWI or another alcohol or drug related driving offense, call the DWI defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919 to schedule a free consultation. Let us put our nearly 40 combined years of DWI defense experience to work for you.