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Perhaps one of the most debated subjects amongst OVI/DUI Lawyers and often discussed among everyday citizens alike is whether to take the breath test or refuse. That said, much less debated is whether or not to take the Field Sobriety Tests. Oddly enough, many people have the erroneous belief that a single beer means they should refuse the breath test (despite the consequences of refusal) yet provide the prosecution with a veritable treasure trove of evidence through the Field Sobriety Tests.
Many people do not realize that there is no automatic requirement to take the Field Sobriety Tests. In fact, there is a strong argument to be made that they should be refused as a rule. Simply put, when you take the Field Sobriety Tests you are playing a game rigged against you. The tests are designed in most cases to make you look bad (all the more true given that when you’re not used to doing them) and unless you possess the balance of an Olympic Gymnast you would most likely struggle to do them even without alcohol in your system. Admittedly, having consumed alcohol is likely to make your performance even worse. These difficulties are further complicated with somewhat complicated instructions you may have difficulty following along with as you try to perform the balance tests to the best of your ability. Throw in the pressure of the situation and it’s a recipe for disaster.
As if your odds weren’t bad enough- consider who decides whether you have passed or failed the test. The Police Officer who stopped you! You can be damn sure the police officer has already made his mind that you are guilty of an OVI when he asks you to step out of the car and take the Field Sobriety Tests. At this point in the process, he’s acting in a strictly evidence gathering capacity. He’s going to do everything he can to validate that decision. So the person who decides whether or not you pass the test is the same person who has already made up their mind that you are guilty. As previously stated- a rigged game.
In short- if you think that your stellar performance on the Field Sobriety Tests is going to convince the officer not to arrest you, think again. At least 95% of the time, that will not happen. Furthermore, unlike refusing the breath test- there is no legal consequence to refusing the Field Sobriety Tests.
Imagine sitting in high school and the teacher springs a test on the class. There is no notice of the subject of the test, how it is graded, or what happens upon failure. That scenario hardly seems fair. But it happens all the time with Field Sobriety Tests. Never play a rigged game.
Last but certainly not least, should your case go to trial, without the Field Sobriety Tests, the prosecutor will have likely have little evidence of your impairment to put forward. It’s much more likely that your performance on tests that you have no experience with, and likely lack the coordination to perform even with practice will be beneficial to your case.