This is a really hard question with no right answer. Instead of throwing out what I would call a “tough-guy” blog saying you should always refuse any police request 100% of the time, I’ll give you my thoughts on taking field sobriety tests and let you decide whether you’d consent to them (or not) if you ever find yourself in that situation.
Top 3 Reasons to Refuse Field Sobriety Tests:
1. The Officer has Already Made Up Their Mind Anyway.
One of the psychological underpinnings of submitting to field sobriety tests (“SFST’s”) is because you feel like you have a chance to persuade police to release you. This assumption is often incorrect. Though the term ‘manipulation’ is a bit harsh, that’s exactly what an officer does when he/she infers they have an open mind about your arrest when they actually do not. It’s very common for police to use terms like “let’s make sure you’re okay to drive” to get someone who is reluctant to take tests — with the clear implication being the officer could decide to let you go. But remember, deception is a legitimate tactic for law enforcement.
2. You’re Going to Fail (On the Officer’s Scoresheet Anyway)
The grading criterion for the tests are, in theory, objective. If you step off the line, it’s a clue of intoxication. If you raise your arms more than 6 inches from your side, it’s a clue… etc., etc., etc. But referees in football and basketball have “objective” standards too. They let their emotions and biases interfere all the time. A police officer is no different. An officer grading SFST’s incorrectly isn’t trying to shaft the test subject but they see what they want to see. When you read the officer’s arrest report after the arrest — I can promise you that very little of what you did right will make it into the report anyway.
3. The Tests Are Quasi-Scientific but are Sold to the Jury as Fully Scientific
The National Highway Safety Transportation Administration (“NHTSA”) has developed a battery of 3 tests commonly given as a package. You can read more about the specific tests here. NHTSA will tell you by failing the 3 tests they can correlate those failures into a certain percentage which indicates a person has over a 0.08 blood alcohol concentration. Sounds solid, right?
Here’s the problem. There was no “control” group with the testing. So they got all the test subjects drunk, gave them all the field sobriety tests and if 10% managed to pass while they were drunk, according to NHTSA, the SFST’s were therefore 90% accurate in predicting if someone blew over the legal limit.
But what they didn’t do was test people who hadn’t consumed any alcohol or who had consumed very little alcohol. In other words, they never tested for a false-positive rate. Wouldn’t you like to know if 25% of sober people would fail too? Or if 50% of people with diagnosable anxiety disorders would also fail with little or no alcohol in their system? Or if 75% of people with recent concussions would fail too?
Here’s the Top 3 Reasons You Should Consider Taking Field Sobriety Tests
1. Don’t Be the Bad Guy
Jurors can’t understand why someone would refuse field sobriety tests. When you refuse all the tests you are turning yourself into someone defiant and disrespectful to authority. As a prosecutor, I don’t think I ever lost a case where the defendant refused all the field sobriety tests.
2. You’re Getting Arrested if You Completely Refuse
Make no mistake about it — the officer just won’t snap his/her fingers and say “aw shucks” as you drive off into the sunset. If you refuse all the tests you’re going to jail, end of story. Believe it or not, some officers will let you go in borderline cases.
3. Jurors Tend to Tune-Out the Officer’s Scoring Anyway
Even though, as I said above, the officer will fail you on his/her score sheet doesn’t mean the jury won’t pass you. Jurors watching someone take the SFST’s are putting themselves in your shoes to see how they would react or do the test. Many think “I couldn’t do that either.” So even if you know you’re getting arrested, by being a good sport and doing your best on the test — a jury may ultimately side with you anyway.
Ultimately the decision to take field sobriety tests is yours and yours alone. I hope this discussion helps.
*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about this topic or any other you should consult an attorney directly.