It is difficult not to do what a police officer asks us to do. We are taught as children to do what they say and obey. Many times we may feel like we need to go along with them “Go along to get along” only to suffer the consequences of a conviction later. Even grown adults can and will be intimidated. Regardless, I will always be respectful to the officers.
If you are in a situation where an officer is asking you to “perform” field sobriety tests, the officer already thinks you are intoxicated. (Legal Definition-Not having the normal use of your mental and physical faculties due to alcohol, drug, or a combination) Note: The definition is important because not having our normal use of our faculties can be caused by a lot of things besides alcohol and drugs and, if so, you are not intoxicated. The officer has been taught to get you to follow his directions and perform the Walk and Turn, (1) Leg Stand, and the Horizontal Gaze Nystagmus. He will not tell you or infer that you can refuse. The officer is looking for what he calls “clues of intoxication” to support his assumption and use later in a trial for his conclusion that you were intoxicated. The officers will not realistically consider any of the many innocent reasons or causes for the legitimate clues because all they need to arrest you for DWI is probable cause and which doesn’t take much at all. When the case goes to trial, the officer and prosecutor want to win or get a judge or jury to say “guilty”.
The Walk and Turn and the (1) Leg Stand- Why refuse?
Most people cannot perform these tests perfectly without any alcohol or drugs. Even if you do them perfectly, they might not be recorded or the recording could be lost before trial. I’ve read a lot of police reports and the audio/visual recording always looks better than as described in print on a police report. More importantly, there are so many legal reasons not to have the normal use of our faculties. If we are tired, exhausted, ill, nervous, scared, bad knees, etc., we will not be perfect in the way we talk, respond to questions, or perform on these tests and the testimonial reason for not having them will be Alcohol or Drugs. For me, it would be a judgment call at the time but would want to be sure I could knock them out of the park. I would have to be confident that nothing (innocent or not) would prevent me from doing them perfectly.
Horizontal Gaze Nystagmus (HGN) – Why refuse?
I was taught to “never say never”, so I won’t this time either even though I want to say it. The officers are taught to look for an involuntary jerkiness in your eyeballs as you move them from side to side while following their pen or finger. You can’t feel a nystagmus and wouldn’t know if you have one regardless of what caused it. The police never record what your eyeballs are doing as they move from side to side and the officers are free to interpret, report, and testify any result they choose and we have no real way to rebut it. Finally, should you get lucky and perform the balance tests perfectly, the prosecutor would blame that on your tolerance and say, “The eyes don’t lie”. And so, it is a No for me.
Whether you agree to perform these tests or not, most of the time you will be arrested regardless. So, when they say, “Ma’am- I’m going to have you do some tests to see if you are O.K. to drive”. Just be respectful and tell them No until you have had a chance to talk to a lawyer.