Can I refuse to take a roadside breath test or other field sobriety tests?
While you can refuse to take a roadside breath test or other field sobriety tests, you should be careful about how you handle it. Refusing a breathalyzer or other sobriety test does not mean that you can't be arrested for a DUI. Police officers rely on their judgement to determine if a driver appears intoxicated and you may be charged even if you refuse a test.
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UPDATED: Dec 14, 2020
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What are your rights when you’re pulled over for a suspected DUI? Can you refuse to take a roadside breath test or other field sobriety tests? It’s important to know your legal rights.
While you can say no, there can be a downside for refusing a DUI breathalyzer test or other tests, and it may not prevent your arrest. Read on to learn more about DUI laws.
If you need legal help with a DUI stop, enter your ZIP code now for free advice.
Can you refuse a roadside sobriety test?
You do have the option of refusing to take a roadside sobriety test, but each individual situation and type of test requested will yield different results; and whether or not it’s a good idea to refuse will depend on these factors.
What is a roadside breath test?
A “roadside breath test,” also called a preliminary alcohol screening test or “PAS,” indicates the presence and/or concentration of alcohol-based on a breath sample.
You will be asked to blow into a breath meter. The purpose of giving this test is to determine if there is enough reasonable cause to arrest you for a DUI (driving under the influence). The PAS is not nearly as reliable as the breathalyzer, and is usually not admissible in court. Defense toxicologists will often state that the PAS is only useful to determine the presence of alcohol, not the quantity.
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Will refusing the roadside sobriety test prevent arrest?
While you generally may refuse to take the roadside breath test, your refusal may not stop the officer from arresting you if there is other evidence of alcohol usage that would affect your ability to drive (e.g., slurred speech, bloodshot eyes, clumsiness, poor driving observed).
Unlike the chemical test, where refusal to submit may have serious consequences, in most states you are not legally required to take any field sobriety tests or FSTs.
Are there consequences to refusing a field sobriety test?
However, keep in mind that your refusal may suggest to the officer that you have something to hide and incite further examination of whether or not you have been drinking.
The reality is that officers have usually made up their minds to arrest when they give the FSTs, and the tests simply provide additional evidence. In many cases, the suspect inevitably “fails” the field sobriety tests. However, officers are likely to testify that the FSTs were administered to help determine whether you were under the influence.
This is because they don’t want to have to testify that during questioning, you were not free to leave (ie, “under arrest”). If you were under arrest, they would have been required to advise you of your Miranda rights even to ask you if you were drinking, and they don’t want to do that as it suggests to the suspect that they should stop talking, making it harder for the officer to determine if they are intoxicated.
So, if the officer testifies that he asked you to do the FSTs because he was not sure you were under the influence, and you refuse the FSTs, that can build “reasonable doubt” into your case. The blood-alcohol test (BAC) is, however, another issue.
Bear in mind that in some cases, refusal to take a test can also make you appear to be guilty. Combined with other evidence witnessed by the officers, this can hurt your case.
What are no-refusal policies?
Some states have no refusal laws that allow officers to obtain a warrant for a DUI blood test immediately. This is usually enforced during certain times of the year.
How should you handle a DUI stop?
Obviously, if you appear drunk in a videotaped field sobriety test, it will not impress the judge or jury. Thus, in most DUI cases a polite refusal “until I speak with an attorney” may be the most appropriate choice. Since the “pass” or “fail” on a field sobriety test is purely subjective, with no published standards for “passing”, you have little chance of helping your situation by taking the field sobriety test.
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