Never Take a Field Sobriety Test Say DUI Lawyers

DUI lawyers urge people to never, ever take a field sobriety test. That is because about one of every three completely sober people will fail under ideal indoor conditions. And you wouldn’t be taking it under ideal conditions.

On the contrary. You would be taking it on an uneven surface. There would be cars rushing past, and patrol car lights flashing. You would fear being arrested and spending time in jail. You would be frightened and nervous. That, alone, could cause you to fail a field sobriety test. That’s because if you fail to follow directions exactly, you could fail the test.

So follow the legal advice of lawyers. Or you might end up in jail.


I.   Field Sobriety Test is Voluntary

II.  Police Tactics & What to Say

III. Field Sobriety Test Example

I. Field Sobriety Test is Voluntary

The decision about whether or not to take a field sobriety test is completely voluntary. Officers may try to to convince you otherwise. It makes their job much easier. But the tests are totally voluntary in every state in the U.S. So politely decline the request. And continue doing so as long as necessary. In this regard, see the Fied Sobriety example at the bottom of the page.

You have nothing to gain by taking the test even if completely sober. But you stand to lose a great deal if you do. So say DUI lawyers.

Assume you’re a teetotaler and never drink alcohol. If you fail a field sobriety test, you will be arrested for DWI or DUI. The arrest usually occurs before you can clear yourself with a breath tester. And they’re far from accurate.

Even after you’re proven to be innocent, you still have an arrest record for the rest of your life. You will have suffered embarrassment, and anxiety. There will have been worry, inconvenience, and unnecessary legal expenses. And they can be huge. You might even lose your job and face other problems. All because you ignored simple legal advice.

Officer’s Belief Causes Bias

take a field sobriety testAn officer who asks you to take a field sobriety test does so in the belief that you are impaired. Determining who passes or fails is very subjective. The belief that you are guilty unconsciously biases the officer’s view of your performance.

The officer’s behavior in this way is normal. It’s to be expected. That is because our beliefs can distort our perceptions. For this reason, for example, wine competitions are usually conducted “blind.” Thus the judges don’t know the identity of the producers. That would tend to influence their judgments.

Highly Subjective

It is the officer alone who decides what is a body ‘”sway.'” It is the officer alone who decides what is “smooth” eye movement. And so on. And remember that the officer is unconsciously biased against you.

Unconscious bias by officers is only the tip of the iceberg. There are physical, mental, emotional, medical, and age-related reasons why so many sober people don’t pass the tests.  Learn more about sober people and field sobriety tests.

Many lawyers advise activating the recorder on your phone before the officer comes to your car door. Some suggest it’s best if the officer doesn’t know the interaction is being recorded. That recording could make all the difference if you are arrested. For example, it might prove that you were illegally coerced to take a field sobriety test.

Most people know that driving with a .08 BAC is illegal. And that it’s dangerous. But driving with a .05 BAC is usually also illegal. It’s evidence of driving while impaired. That could lead to arrest.

So it’s always smart to stay well below .05. Remember that breathalyzers are not very accurate. So you could be falsely convicted even if your true BAC falls below that.

Discover tips for how to keep your BAC low while drinking.

II. Police Tactics & What to Say

Police are trained on how to get people to take field sobriety tests. First, of course, they never tell people that they have a Constitutional right to decline. They want drivers to take the test to gather evidence against them.

They may say “If you have nothing to hide, you wouldn’t refuse, would you?” Or “Taking this test can prove that I’m mistaken about my suspicion that you’re DUI.” Perhaps “This will show me that you’re safe to drive home.” Or “Refusal will convince a jury you’re guilty.”

Attorney Jeff Lotter suggests how to respond to an officer who asks you to submit to a test. He suggests saying something like this. “I’ll take the test to prove my innocence. But I need to check with my lawyer to make sure it’s ok.”

Most officers will refuse to let you make the call. Mr. Lotter points out that if that’s the case, the blame now shifts to the officer…not you.

If the officer does permit the call, phone a friend or relative and talk for a few minutes. Then come back to the officer and say “My attorney told me to decline. He said they’re designed for people to fail.”

Attorney Lotter says you’ll likely go to jail whether or not you take the test. But this way, you deny the state evidence it wants to use against you.

III. Field Sobriety Test Example

Some officers can be incredibly insistent that drivers take a field sobriety test. They may falsely believe that drivers must take the test. Or they may simply try to intimidate drivers into taking it. It doesn’t really matter. Drivers have a Constitutional right to decline.

One driver had his phone audio record his interaction with police when pulled over for an illegal turn. He asserted his right to decline a field sobriety test. The officer repeated insisted that the law required him to submit. Then he arrested the driver for DUI for refusing. You can listen to the recording.

A judge listened to the tape and  rejected the officer’s claim that the driver’s speech was slurred. It wasn’t. And that he was antagonistic. He wasn’t. To the contrary, the judge said it was the officer who was antagonistic.

A breathalyzer test at the police station showed that there was absolutely no alcohol in the driver’s body. The judge then ruled that the officer had falsely arrested the driver as punishment for not taking the test.

The driver settled the matter for $70,000.

This case shows three things.

    1. Police may falsely but adamantly insist that drivers legally must submit to a field sobriety test.
    2. Drivers don’t have to take the test.  (Doing so can only harm them.)
    3. It’s wise to audio record interactions with the police.

Officers can legally lie when investigating a possible DUI.

Of course, the best advice is don’t drink before driving. Failing that, it’s important to keep your BAC well under 0.08. And always refuse to submit to a field sobriety test even if you abstain from alcohol!


This site gives no advice. Always see a lawyer for facts and advice.