Why do lawyers always say to refuse a field sobriety tests? What if you dont drink?

[The motor guy]

I had a cop suspect i was drunk one time, so they did the whole wave the pen back and forth in front of your eyes test. I don't drink and the cop he brought in to do the test was like he's good. I have a feeling it was a rookie officer that pulled me over. He asked me all kinds of things he wasn't supposed to ask and they let me off with a warning. He said I didn't use my turn signal (after he turned his lights on) and that I wasn't staying in the center of the lane. Finally decided it was time to fix the front end after that I didn't answer any of his questions, but I did politely go along with all his sobriety tests. That was a very strange interaction. They had 3 cop cars just for me and were wondering why I was acting nervous. my guess is the list of things the rookie did wrong far outweighed anything I did.

 

[RooflessVW]

"Anything you say can and will be used against you"

 

[The motor guy]

"Anything you say can and will be used against you"

So what if i refuse and they bring a perfectly sober person into the police station? I just didn't want to go to jail, so that's why I cooperated.

 

[SubieRubyRoo]

"Anything you say can and will be used against you"

They call it the Miranda warning for a reason.

 

[Owen Lucas]

IIRC there isn't any state where doing a field sobriety test is mandatory. I hear that their interpretation is highly subjective and basically a fishing expedition. Asking to read the ABCs backwards? Many people nowadays can't recite them anyway lol.

I think the safe thing to do is ask for the breathalyzer which is mandatory.

No breathalyzer? You go to the PD and have your car towed? Must be a slow night for the police.

You blow a 0.00 on the machine? Now they say you have drugs in your system and time to go to the hospital for blood work?

 

[The motor guy]

IIRC there isn't any state where doing a field sobriety test is mandatory. I hear that their interpretation is highly subjective and basically a fishing expedition. Asking to read the ABCs backwards? Many people nowadays can't recite them anyway lol.

I think the safe thing to do is ask for the breathalyzer which is mandatory.

No breathalyzer? You go to the PD and have your car towed? Must be a slow night for the police.

You blow a 0.00 on the machine? Now they say you have drugs in your system and time to go to the hospital for blood work?

That's actually what I did, but they did the pen thing. They didn't go any further after that.

 

[GON]

The other side of the story:

 

[dnewton3]

There have been some serious violations of the conceptual field sobriety testing parameters IMO.
Of note, there have been some agencies in TN which are in big trouble for arresting folks who blow a .000 on the PBT and little else in terms of evidence of intoxication.

Much more reliable is the NHSTA SFST (standardized field sobriety test) protocol. It is not fool-proof. It is reasonably accurate as a predictor of intoxication.
SFSTs are not an absolute reason for arrest; they are building blocks of reasonable suspicion working towards probable cause for arrest.

Here is the real information:
https://www.nhtsa.gov/dwi-detection-and-standardized-field-sobriety-test-sfst-resources
Here's the conceptual premise:
- there are three general tests; eye-gaze-nystagmus, one-leg stand, walk and turn
- three or more "clues" in a test indicate a test failure
- the more tests which are failed, the more likely you are intoxicated

Technically, (I know this is true in IN, and likely true in all states), you are not under arrest until you fail a certified breath test or blood test, or formally refuse those tests. You are only "being detained" during testing and when being transported.

Because driving is a privilege, those tests are considered to be under the "implied consent" doctrine. As soon as you operate a vehicle, you have given implied consent to testing by your choice to exercise the privilege.

In Indiana, refusal to take the tests results in an automatic suspension of your license for one year, regardless of the outcome of any legal proceeding. This is because, again, the BMV has control over your "privilege". Driving is not a "right" and therefore falls outside of normal claims of duty and response.

Each state will have nuances which vary slightly from this, but the general concept applies to all as best I understand.

For reference, I was NHSTA certified in SFSTs for most of my career. It's not a requirement to be so, but it certainly helps when it comes time to testify in court.

 

[Owen Lucas]

Technically, (I know this is true in IN, and likely true in all states), you are not under arrest until you fail a certified breath test or blood test, or formally refuse those tests. You are only "being detained" during testing and when being transported.

So if you are detained, is your vehicle left on the side of the road or typically towed away?

If you end up blowing zeros, I presume this looks bad for the officer but the unlucky driver has to find a way to the tow yard and foot the bill or is this all covered when innocent?

 

[JeffKeryk]

I wonder why you were given a field sobriety test if you were sober? Police Officers are not perfect, but are pretty good at recognizing signs of intoxication; it's their job.

Lawyers advise refusing chemical tests because the test is extremely strong evidence against you.

 

[JeffKeryk]

So if you are detained, is your vehicle left on the side of the road or typically towed away?

If you end up blowing zeros, I presume this looks bad for the officer but the unlucky driver has to find a way to the tow yard and foot the bill or is this all covered when innocent?

In my experience, towing is up to the Officer. Also, some impound places will not release a vehicle that is not legally registered and insured.

 

[dnewton3]

So if you are detained, is your vehicle left on the side of the road or typically towed away?

Towed if it was in a public roadway. Or maybe left if it was in a parking lot. Or maybe allowed a family member to come get it. This is at the discretion of the agency SOPs.

If you end up blowing zeros, I presume this looks bad for the officer but the unlucky driver has to find a way to the tow yard and foot the bill or is this all covered when innocent?

So the answer is "it depends". This is why SFSTs and other intoxication/impairment tests are important. You can be impaired by narcotics and not be intoxicated by alcohol. If impairment is still proveable, the arrest would take place. Any officer who replies solely on one test result as a basis for arrest is just asking to be embarrassed in court. It was my protocol to administer the full SFSTs, and the PBT, and then if indicated, the blood/breath testing. And maybe other impairment testing (which I was not trained in, so I would have another certified officer administer that portion of the testing).

There is really no reason a person should have to be returned to the tow yard to claim a vehicle. If you build a good case with plenty of evidence, the result of .000 BAC isn't the only means of arrest. You can still prove impairment if they failed the other tests. And if the intoxication is suspected to be because of drugs, you request a warrant from a judge and get a blood draw to test for illicit drugs (or even prescribed drugs that would, by nature, be a cause of intoxicated driving).

An example would be someone who has a medical marijuana card (not in IN, but some other state). They can be impaired, but pass the BAC test, and fail a blood test based on the THC in the system. Many states now have THC limits for presence in blood.

 

[JohnnyJohnson]

Refuse in Washington State and you automatically lose your license.

 

[FowVay]

Refuse any voluntary action that can be used to incriminate you. You can always fight the charges in court and the less information the cop has on you the better for your case. If you incur legal expenses then you can sue the cop for false arrest after the charges have been dismissed. Police have an obligation to know what they're doing and when they abuse the authority they're given it is time to swing back. These clowns run around with defaced US flags on their uniforms and pretend to be defenders of our Constitution but they can't wait to hammer any poor sucker that is willing to incriminate themselves. Don't talk to them, don't help them investigate you for a crime and certainly don't volunteer to give up your Constitutionally protected rights. They're not your friend.

 

[skyactiv]

The Ohio State Highway Patrol is doing a pilot program with mouth swabbing for drug impairment. It supposedly detects THC up to 24 hours. So if you smoked marijuana Friday evening he/she shouldn't test positive on Sunday for THC by swabbing.

 

[dnewton3]

To circle back to the OPs question, it plays out like this ...

- Suspect gets pulled over, refuses the testing.
- This may or may not work. If the officer can articulate reasonable suspicion, he can request a warrant for blood from a Judge. (I've done this multiple times). So the evidence is collected even if the suspect doesn't want to cooperate.
- refusal results in a suspension of the license; this happens pretty much in every state, and it often independent of the legal findings
- most states have a "work around"; called a "hardship license". You have to go in front of a judge and say why you "need" a license for your job, kids, etc. These are often called "conditional licenses" and will have specific parameters for driving (to/from work; grocery; kids school). They will be very specific; they will list the home and work addresses, the school addresses, the times when driving is allowed, etc. If caught outside those parameters, you're not allowed to drive and are subject to arrest again. (I have arrested folks for violating their conditional license parameters more than once.) Conditional licenses are not a given; they have been refused when other options are present (busing for the kids, ride sharing to work, etc).

My OPINION ...
So why do lawyers say to refuse the tests? Because they want to try and wiggle out of the nuances of the DWI/OWI; those look bad on a driving record and can really hurt your insurance rates. And those same lawyers also know that you're going not only be paying them to defend you in court for the DWI/OWI, but also in court for the "conditional licenses" as well. In short, when you refuse, it makes them more money because it makes for more billable hours as there are more things to represent you for.

 

[The motor guy]

I wonder why you were given a field sobriety test if you were sober? Police Officers are not perfect, but are pretty good at recognizing signs of intoaification; it's their job.

Lawyers advise refusing chemical tests because the test is extremely strong evidence against you.

I had some worn out front end parts, so it was hard to maintain the center of the lane. It was bs though because he only followed me for maybe 100ft. He just wanted to get me before I left city limits as I was only 100ft away. I bet I swerved slightly or something and that was enough. Plus I forgot he was back there. Lol Supposedly I read that they can't pull you over for that

 

[The motor guy]

To circle back to the OPs question, it plays out like this ...

- Suspect gets pulled over, refuses the testing.
- This may or may not work. If the officer can articulate reasonable suspicion, he can request a warrant for blood from a Judge. (I've done this multiple times). So the evidence is collected even if the suspect doesn't want to cooperate.
- refusal results in a suspension of the license; this happens pretty much in every state, and it often independent of the legal findings
- most states have a "work around"; called a "hardship license". You have to go in front of a judge and say why you "need" a license for your job, kids, etc. These are often called "conditional licenses" and will have specific parameters for driving (to/from work; grocery; kids school). They will be very specific; they will list the home and work addresses, the school addresses, the times when driving is allowed, etc. If caught outside those parameters, you're not allowed to drive and are subject to arrest again. (I have arrested folks for violating their conditional license parameters more than once.) Conditional licenses are not a given; they have been refused when other options are present (busing for the kids, ride sharing to work, etc).

My OPINION ...
So why do lawyers say to refuse the tests? Because they want to try and wiggle out of the nuances of the DWI/OWI; those look bad on a driving record and can really hurt your insurance rates. And those same lawyers also know that you're going not only be paying them to defend you in court for the DWI/OWI, but also in court for the "conditional licenses" as well. In short, when you refuse, it makes them more money because it makes for more billable hours as there are more things to represent you for.

But if they arrest someone who's sober, then they're gonna sue the pants off you.

 

[dnewton3]

Refuse any voluntary action that can be used to incriminate you. You can always fight the charges in court and the less information the cop has on you the better for your case.

That's generally good advice.

If you incur legal expenses then you can sue the cop for false arrest after the charges have been dismissed.

Meh ... maybe, maybe not. This would depend on qualified immunity. If the cop was following SOPs and training, then you would be unlikely to even get your case heard, let alone win.

Police have an obligation to know what they're doing and when they abuse the authority they're given it is time to swing back.

Again, I agree. LEOs have an obligation to follow the law and SOPs, etc. If they don't, you have a right to challenge that.

These clowns run around with defaced US flags on their uniforms and pretend to be defenders of our Constitution but they can't wait to hammer any poor sucker that is willing to incriminate themselves.

Now, your underlying disdain is beginning to show through. Not all cops are "clowns", though some are; true of any profession.

Don't talk to them, don't help them investigate you for a crime and certainly don't volunteer to give up your Constitutionally protected rights. They're not your friend.

Reasonable advice.


But the distinction you fail to recognize is that driving is a privilege, not a right. And so your advice fails to acknowledge the nuances of the process which are a bit different, as I already explained in previous posts above. Not giving a breath or blood sample voluntarily likely will not stop the collection of evidence; as I said a warrant can be requested. And so the refusal to submit will often result in an assurance of loss of license, and still not keep you from jail.

And, why refuse to submit if you are not intoxicated? You would have your license suspended for sure for 1 year, and for what purpose? To what end?
Example:
You are involved in a motor vehicle accident where death (or imminent loss of life) is present. In most states, you are required to give a breath/blood sample at that time. So if you're sober, why in the world would you refuse? The breath test can actually prove your sobriety; that would be very helpful in your defense.

Also, if you refuse multiple tests in multiple separate events, those refusals have a stacking effect. You'd lose your license for 1 year at the first refusal. But if you are involved in a separate event and refuse again, your license is suspended for 2 years!

Refusing to participate in testing when you actually are intoxicated/impaired does not make the risks go away. It only displaces them to other criminal/civil charges and will often result in a forced draw of your blood, ultimately resulting in the evidence being presented anyway. It increases the charges you accumulate, it results in a loss of driving privileges irrespective of the legal outcome, and it gives more billable hours to the lawyer.

I recommend anyone in Indiana review IC 9-30-5 and 9-30-6 and 9-30-7, et al.
If you're in another state, familiarize yourself with your state laws.

Caveat Emptor!

 

[dnewton3]

But if they arrest someone who's sober, then they're gonna sue the pants off you.

Well, if a cop is sloppy and careless, that's a viable pathway forward. If they violate laws and SOPs, they won't have qualified immunity.

Good cops will collect the right evidence to make for a successful prosecution. Cooperation on the part of the suspect really isn't a necessity for prosecution.