Refusing Field Sobriety Tests

Published: 27 January 2013

If you are pulled over for suspicion of driving under the influence, you will be asked to perform field sobriety tests. Failing the tests will almost certainly result in arrest. Your performance on the tests will be used against you in court. They are powerful evidence, and an officer’s testimony that you failed them can result in a conviction.

Here is the secret police do not want you to know: the tests are voluntary. Police cannot make you take them. You can, and probably should, decline to take the tests.

The three most commonly administered field sobriety tests are the Horizontal Gaze Nystagmus, which requires that you follow an object (usually a pen) with your eyes; the Walk and Turn, which requires that you walk in a line, heel to toe; and the One Leg Stand, which requires that you balance on one foot for a certain period of time (usually 30 seconds).

Although the Horizontal Gaze Nystagmus test is not admissible in court, officers routinely rely on the test in formulating their opinions of whether a driver has been driving under the influence. The test requires you to follow an object using your eyes only. If you move your head, or if the officer thinks your eyes “jerk” while following the object, you will likely fail this test.

The Walk and Turn test requires you to walk a straight line, heel to toe, for nine steps. Then, you must make a very precise turn and walk nine heel-to-toe steps back down the line. There are myriad ways to fail this test. If you step off the line at all, if you do not make heel to toe contact, if you use your arms to balance, or if you do not execute the turn properly, it is almost certain that the officer will determine that you have failed this test.

The One Leg Stand requires you balance on one foot for 30 seconds. You must hold your other foot six inches off of the ground. You must keep your arms at your sides. You must keep your eyes on your foot. Finally, you must count aloud in the 1-one thousand, 2-one thousand fashion until the officer tells you to stop. If you “hop” to keep your balance, use your arms to balance, sway, put your foot down, or fail to hold it up high enough, the officer will fail you on this test.

To read more about these three field sobriety tests and the science behind the tests, go to the National Highway Traffic Safety Administration’s website at

Because it is so easy to “fail” these tests, it is important to remember that they are completely voluntary. You do not have to perform them. Yes, there is a chance that you will be arrested even if you refuse the tests. However, taking the tests and failing could have far more severe consequences. These tests are usually captured on the dash camera of the patrol vehicle, and they are almost always allowed to serve as evidence against you at trial. Keep in mind that you are likely going to be arrested whether or not you take the tests if you admit to the officer that you consumed alcohol or if the officer claims that you smell of alcohol. Don’t be intimidated by the officer. If you do not want to take the tests, politely decline.

If you have been arrested for DUI, whether you submitted to testing or not, it is important to have an experienced attorney review the unique facts of your case. Our attorneys know how to successfully defend DUI charges. Call us today to discuss your case.

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