“You know, you weren’t required to take the field sobriety tests.” We can’t tell you how many times we’ve said these words to clients who have come to us looking for representation in DUI cases. Inevitably, this statement elicits surprise from the client, followed by one of two statements, “The officer didn’t give me the option,” or “I thought if I didn’t comply my license would be suspended automatically.”
First, the officer doesn’t have to give you the option. He is under no obligation to tell you that you don’t have to participate in the tests. Many officers will simply ask the driver to exit the vehicle and then begin to instruct the driver on whichever test they’d like her to perform first.
Second, your license will not be suspended if you refuse to participate in field sobriety testing. Pennsylvania’s Implied Consent Law states that your license will automatically be suspended if you refuse a test of blood, breath, or urine after an officer has requested one. It says nothing about field sobriety testing and specifically states that refusing a portable breath test–which is often used to supplement the three standard field sobriety tests (horizontal gaze nystagmus, one-legged stand, and walk the line)–will not result in a suspension.
“But isn’t there a chance that the officer will let me go if I pass the tests?” Not much of one. The sole purpose of these tests is to gather evidence showing that you’re intoxicated. And there are numerous ways to fail the tests, even if you’re stone-cold sober. Just ask Amanda Houghton of Layton, Utah, who failed field sobriety tests and was arrested for DUI after calling the police herself because she had been rear-ended. In other words, the risk greatly outweighs the (unlikely) potential benefit.
So what are you required to do if you’re pulled over or going through a sobriety checkpoint? You have to provide your license, registration, and proof of insurance when asked. You have to exit the vehicle when asked. You do not have to answer any questions, including about where you’ve been, where you’re going, whether you know why you were stopped, or how much you’ve had to drink.
If the officer says that he’s going to take you to a hospital or other facility for a test of blood, breath, or urine, you have to go with him. But you have a choice to make about whether you’re going to submit to the test once you get there. If you don’t submit, your drivers license will be suspended for one year regardless of whether you’re ultimately convicted of DUI. If you do submit, you will not face an automatic suspension for refusing the test, but you may be providing evidence that will be used against you.
However, if you refused to participate in field sobriety testing prior to being taken to the hospital, you give your attorney the opportunity to argue that the officer didn’t have enough evidence to require you to submit to testing. That could result in the court ruling that the test results can’t be used against you, thus making it much harder to convict you.