Do I have to take Field Sobriety Tests?

Many people are well aware that police cannot force you to take a breathalyzer test.  Massachusetts is an implied consent law state, however, so any refusal of a chemical test (breath or blood) results in an immediate administrative suspension from 6 months to lifetime, depending on how many OUI convictions someone already has.  What is less well known is that you do not have to agree to exit your vehicle and take field sobriety tests.  If an officer has justifiable suspicion that you may be impaired, the officer is within their rights to ask you to exit the vehicle.  However, you do not have to comply with any request to take field sobriety tests.  The down side is, almost every time, the officer will then arrest you and use the observations (glassy bloodshot eyes, odor of alcohol, admission to drinking, erratic operations, etc.) to arrest you, because probable cause to arrest is a very low standard.  The benefit of refusing the tests is that you do not give the Commonwealth prosecutors much evidence to use at trial. Refusal of field sobriety tests more often than not will result in a not guilty at trial, unless the driving observed by witnesses is particularly awful, or if a blood test or breath test is admitted at trial.  There is no penalty for refusing to take field sobriety tests, which differs from refusal to take a breath test.  Although they do share in common that if you refuse either, a jury or judge can never hear about it at trial.  This usually prompts jurors to wonder why field sobriety tests were not administered.  Often times a jury will ask the question “Was there a breath test or field tests offered?”  The judge unequivocally has to answer that since those were not in evidence, they can’t even think about them.  The police do not have to tell you how long you will lose your license for if you take a breath test, just that it is from 6 months to lifetime.  In short, refusing everything will result in less evidence that can be admitted at trial.  Of course, there are always exceptions, for example if someone is unconscious behind the wheel and reeks of alcoholic beverage odor, or if someone attempts to get out of their vehicle and falls flat on their face, then a reasonable jury could absolutely infer that the person is intoxicated. There is no legal exclusion for common sense and every day observations.  If you are pulled over, always be respectful to the officer, even in refusing to comply. The words “I understand you are just doing your job, but I respectfully refuse,” will go a long way.  At trial, many officers will be more apt to just testify in a manner that makes it seem like they didn’t necessarily want to have to arrest you, and that comes across very well to a jury.  If you are aggressive and belligerent, it all but assures that police will be more apt to testify to make sure you are convicted.  Often times people will think that they can pass the field tests.  Rarely is that the case, because the things officers are trained to look for as “clues” are things that most sober people do.  For example, if someone uses the door to “steady” themselves exiting a vehicle, that is a ”cue” that someone may be impaired.  This is despite the fact that it’s nearly impossible to not use the door for balance exiting a vehicle.  There are also many other issues that complicate taking field tests, such as any minor nagging injury, particularly anything in your hips or knees that comes naturally with age.  People that are overweight or elderly will have significant issues in taking the tests, because the tests are not designed for people with any issues. Police will say that they take this into consideration when they administer the tests, but the reality is if you are already asked to take them, and you don’t do well for any number of reasons, you’re getting arrested.  The tests are designed for a healthy person of average size and weight.  Field sobriety tests are a product of police testing and do not have much of a basis in actual science.  Sure, it’s common sense that if someone is inebriated then it will be difficult to stand on one leg for 30 seconds.  However there are several other reasons why this is a difficult endeavor.  In short, if you are pulled over for suspicion of OUI, refuse the field sobriety tests, and in the words of Dalton…”be nice.”