To Take Or Not To Take Field Sobriety Test?

Mon, 17 Nov 2008 15:40:00 GMT

A few days ago, I was in court with a client accused of driving under the influence of alcohol (“DUI”). This was the first time she had been in trouble with the law. She is an intelligent woman with a wonderful family and a promising career. Yet, if convicted, she could have received a mandatory minimum of three days in jail, a mandatory driver’s license suspension, and up to $1,000.00 in fines.

She was stopped by a police officer for not having a rear license plate light at 2 a.m. The officer smelled alcohol on her breath, and after a few questions she admitted to having few beers. The officer asked her to step out of her car. He told her that he wanted to conduct a few test to see if she was okay to drive. She informed the officer that a family friend advised her to never take Field Sobriety Test (“FST”) and politely declined. Her refusal to the FST was a major factor in us getting the DUI charge dismissed.

In Ohio, FST are optional. Unlike the breathalyzer and other chemical test, there is no driver’s license suspension or legal penalty for refusing to take FST. FST are supposedly designed to check your "divided attention," a necessary skill in operating a motor vehicle. However, they are not really sobriety tests. With the exception of the Horizontal Gaze Nystagmus Test (“HGN”), they are physical coordination exercises that are subjective in nature. Many people cannot perform any of the FST, including the HGN, to the police officer's satisfaction for a variety of innocent reasons. Police officers are trained to document any clues of supposed mental and/or physical impairment observed during the test to assist the prosecutor in pursuing DUI convictions.

Most DUI lawyers never recommend that anyone take FST. They commonly advise their clients to politely refuse to take the FST. This does not mean that the client will not be arrested. Over the years, I have had private conversations with several law enforcement officers and the majority of them have said that once they determine that a person has been drinking they will arrest them regardless of how well they perform on the FST. Their biggest fear is that they will release a driver who they know has had a few drinks and that person ends up causing an accident and harming someone shortly thereafter.

So if a police officer asks a person to take FST, that person is probably going to be arrested regardless of how well they perform on the tests. By refusing to take FST the prosecutor has less evidence to use at trial against them.

Information provided in this blog does not create an attorney-client relationship or constitute advertising.

Shimane Smith Law, LLC

To Take Or Not To Take Field Sobriety Test?