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Can I Refuse to Perform Standardized Field Sobriety Tests if I am Pulled Over for DUI?

Jennifer M. Alexander


Consider this scenario.  You’ve been out drinking with friends at a party and were not planning to drive home. An unexpected situation arises, and you find yourself driving home from the party.  You rationalize the decision because you don’t live far away, and you feel “fine” to drive.  As you drive home, you see red and blue lights lit up behind you and realize you are being pulled over by the police. The officer approaches your window, asks where you are coming from, and says that she smells alcohol. She asks you to step out of the car to perform field sobriety tests to determine whether you are safe to drive.

These “tests” she is referring to are called roadside tests, also known as standardized field sobriety tests.  You may ask yourself in that moment, “Can I refuse to perform field sobriety tests?” The answer is yes!
While there are many different “roadside tests” an officer can ask that you perform, there are only three standardized tests that are officially sanctioned by the National Highway Traffic and Safety Administration (NHTSA).  Standardized means that there is an official and correct way to instruct one to perform the tests.  The standardized tests are frequently used by the prosecution against the defense in court, and are referred to as:  

  • Horizontal gaze nystagmus (an involuntary jerking of the eye),
  • Walk-and-turn (a divided attention test primarily to observe balance and instruction following), and
  • One-leg stand (a divided attention test requiring you to stand on one foot for 30 seconds)

You are not legally required to take any of the roadside tests – whether standardized or not standardized.  The tests are divided attention tests that are meant to challenge you both physically and mentally and can be difficult to perform even under the best of circumstances particularly if you have certain medical conditions, take certain medication, or are wearing high-heeled shoes.  The tests are meant as an investigative aid to the police officer and can be used against you in court to help the prosecution prove you were driving while impaired or under the influence. Therefore, you should politely decline to perform any roadside tests to avoid giving the prosecution additional evidence against you.  Keep in mind, however, that even if you refuse to perform the roadside tests you very likely will still be arrested if the officer believes there is enough probable cause that you are driving while impaired or under the influence, but by refusing the tests you are also refusing to give the State evidence to use against you at trial.  

If you find yourself in this situation, or are in need of aggressive legal defense in court, please contact one of the criminal defense attorneys at McNamee Hosea, Jennifer AlexanderChris Hamlin, or Brent Ahalt to assist you in defending your case.