(Or….To Test or Not to Test? That is the Question.)

There is no legal requirement for you to take what are known as the Field Sobriety Tests (FSTs). The police can’t issue you a ticket for saying , “No thanks!” to these tests, and DMV has no power to sanction you for refusing. The police know this, but won’t advise you that you have the right to decline to take the FSTs. Unlike incriminating speech and the famous Miranda v. Arizona case (“You a have the right to remain silent…..”) there is no caselaw requiring the police to tell you the tests can be declined. And, they usually should be.

Imagine this……

It’s late at night and you are on your way home from a friend’s. You had a beer after a late dinner. You know at your body weight one beer hasn’t put you close to being impaired or intoxicated. Red flashing lights appear behind you. As you pull over, you wonder why you are being stopped. Maybe you didn’t signal within 100 ft. of the last turn? Maybe the little bulb over your license plate is burned out? Perhaps you were doing 38 in a 35 mph? None of those are the real reason. No…it is prime time for DWIs and the police are looking for any reason to pull cars over.

You’re nervous because the cop approaching your car looks unhappy. You aren’t used to being viewed with suspicion by the police and are nervous. You’ve opened your window and you’re talking with him. He can smell the faint odor of the beer on your breath and asks if you have been drinking. You truthfully tell him you had one earlier in the evening (remember your right to remain silent?). To your surprise and alarm, he orders you out of the car.

You are standing on the side of a busy road with cars whizzing by. You’re not far from home and are worried a friend or neighbor will see you. It is cold and you are tired. The officer tells you he is going to give you some FSTs. He doesn’t ask. He doesn’t mention you can refuse. Instead, he rapid fires instructions at you. They would be confusing to many under normal, calm circumstances. But you are not calm and the situation is not normal. The officer has a commanding presence and you feel you have to do what he says.

You’re trying to keep up and understand what is expected of you. You believe you are innocent and sober. Why can’t this guy see it? And what did he just say about what to do with your arms while you walk forward how many steps?

Failure to quickly comprehend and strictly follow the instructions is as damning as failing to perform the physical feats required by the tests. Both will be used by the police to bolster their claim you were DWI.

Here is what the police don’t want you to know (if they did, they’d tell you): You do NOT have to participate in the FSTs. There is no law or DMV regulation requiring you take those tests. The officer has no basis to issue you a ticket for refusing to take them. There is also no law or court ruling requiring the police to tell you of your right not to take the tests.

If you refuse, the prosecutor can try to argue the refusal should be taken as an inference of guilt. They can try. You have lots to fight back with on this point. And, as the NYS Court of Appeals held, “….the inference of intoxication arising from failure to complete the tests successfully is far stronger than that arising from a refusal to take the test.” People v. Berg, 92 NY2d 701 @ 706.

In other words, you will probably be better off by refusing than by failing. In any conflict, anticipate the threat and have a proven counter in place. The threat is the negative inference. The counter is knowing all the reasons why the tests should be refused. Here are a few:

— One study showed that 46% of the test subjects could not pass FSTs completely sober.

— The tests require you to move your body in unnatural ways. It can be argued they are designed for failure. Your anatomy is not designed to allow you to walk heel to toe…you have 2 legs to stand on, not just one, etc.

—The “most reliable” test is considered to be the Horizontal Gaze Nystagmus (HGN). This does not test for the presence of alcohol per se. Nystagmus (the “jumping” of the eye) can have up to 40 causes in addition to the consumption of alcohol.

— Given alone, the HGN test has only a 77% reliability rating. The Walk & Turn has a 68% rating. The 1 Leg Stand is a lowly 65% accurate. Taken together, these 3 tests have an 82% accuracy rating. These 3 tests are known as the “Standardized FSTs”. They are the ones most often used. Others, such as the Finger to Nose and Alphabet test (sometimes motorists are asked to say it backwards….go ahead….give it a shot) are even less reliable.

— Absent the officer wearing a body camera, it will be her word and her subjective perceptions against your recollection of whether you passed or failed. More and more officers are wearing body cameras, but so far the NY State Police have failed to adopt the use of cameras. I suspect they like the odds of it being a cop’s word against yours.

— Perform the test correctly, but violate one of the many instructions thrown at you and you are deemed to have failed.

— Physical injuries, disabilities, past surgeries, fatigue….all can cause you to fail the tests. So can the disorienting experience of being out on the side of the road with bright lights in your eyes and a police officer giving you strange instructions.

If you refuse these tests, your lawyer can have you testify why you made that decision. The common assumption is the tests work and that is why they are given and are admissible. It is a bad assumption. The tests often do not work, but failing them gives you one more hurdle in the battle to have the charges dismissed or reduced.

Chances are, you won’t do as well as this guy from Reno 911:  https://www.youtube.com/watch?v=D6VQDNIZH7U , and even he blew it by saying too much.

Here is a short history of the FSTs: http://www.fieldsobrietytests.org/accuracyoffieldsobrietytests.html

In the Art of War, Sun Tzu warns against meeting your opponent on his or her terms. Chances are you have never performed the FSTs before, but the officer has administered them dozens of times. There is little to gain and much to lose by taking these tests. The odor of an alcoholic beverage, an admission to having drank, glassy or red eyes (which can result just from being tired)….all are used by police to claim probable cause for an arrest. If you take these failure designed tests and fail, you will strengthen the prosecution’s case.

It is your call when in the critical moment. If you find yourself there, I hope you remember what the odds are and that you have a right to refuse these tests.

  • Posted by Janet Penk April 25, 2018 at 2:30 pm

    Glad to see you blogging again! I've missed them.

  • Posted by John O Webster April 25, 2018 at 7:37 pm

    Refusing The Field Sobriety Test "The state of New York issues driver's licenses under the principle of implied consent. When you receive your license, you are consenting to follow the rules of the road and the orders of the police authorities and Department of Motor Vehicles (DMV). In effect, from the first day you have your driver's license, you are consenting to take a field sobriety test when ordered to do so at any future traffic stop. Refusing to submit to the test gives the police officer the right to confiscate your license at the scene and drive you down to the local police station for further BAC testing. You will be responsible for the cost of towing your car from the scene of the traffic stop. An administrative law judge has the right to suspend your driving privileges up to one year, even if no DWI charges are pending. In the event you are charged with a criminal offense, the prosecutor may use your refusal as evidence of your consciousness of guilt." This is from the Katz Law Firm of Manhattan's website. I greatly enjoy your blog and would certainly want you as my attorney if the need arose. But I noted that the Katz firm seems to take a much different view than the one you present. Which is true and correct? Losing your license for a year is a real hardship up here in Upstate NY

    • Posted by Kurt Mausert In reply to John O Webster April 26, 2018 at 4:55 pm

      Hi, John....thanks for your comment. The quote you provided from the Katz law firm is partially right, and partially wrong. The "implied consent" law pertains to taking breath and/or blood tests. It does NOT pertain to the FSTs my blog is about. VTL § 1194 (1)(b) is entitled "Field Tests" but the body of the statute refers only to the breath (or chemical) tests. If you refuse to take the alcohol-sensor breath test on the roadside, you can be ticketed under the Vehicle & Traffic Law. No such tickets can be issued for refusal to take the FSTs. Nor does DMV file administrative charges or have hearings unless the the driver refused the breath/blood test. No such hearings are held just because the driver refused the FSTs. There are NO VTL or DMV sanctions that can be imposed just for failure to take the FSTs. The prosecutor can ask the court and jury to draw a negative inference, but that is all. The Berg case I cited is on point. I also confirmed my views expressed here by speaking to DMV's Counsel's Office. The Katz quote seems to take a few laws and rules and mixes them together. It's claim there are sanctions (other than the inference) for not takings FSTs is simply wrong.


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