Standardized Testing, Not Just for Kids Anymore
One of the most common questions I get asked is whether or not one should take the field sobriety tests (FST’s). And I always answer it like a lawyer. It depends. My lawyer advice is that if you have had just one beer or glass of wine, then do everything. Do all the tests, give them breath or blood, whatever they want. Please note that I was being specific when I said beer or wine. One glass of beer or wine for the vast majority of us will not lead to intoxication. However, when dealing with hard liquor or cocktails, that’s not an easy calculation to make. I’m looking at you purple margarita drinkers.
Now, what do you do if you have had more than one glass of beer or wine? What do you do if you’ve had more than zero glasses of anything else? Politely refuse everything. This bears repeating. If you have to do any math in trying to figure out what you had to drink, politely refuse everything. You have the right to refuse to do field sobriety tests. An officer can encourage, scold, whine, beg or plead for you to do the FST’s. But they cannot make you. Unfortunately, even if you are stone cold sober and refuse to take the FST’s (see the above paragraph), you are probably going to jail for DWI.
Now, you might be saying, “Did you just give me advice that you know will get me arrested?” Yes, yes I did. You see, FST’s are (in my always humble opinion and not backed up by the actual law) confessions. You are confessing with every word, step, stumble, hop and fall, your guilt. All of this is getting recorded for posterity and for use against you in the future. It is much better to be arrested with no evidence, than to be arrested anyway after you try to hold one leg up and face plant on the sidewalk instead. Being arrested is bad, but being convicted is worse. Understanding this upfront will make it much easier for you to be polite to the officer even when filled with righteous indignation.
I cannot stress enough that even if you feel that you did great on the field sobriety tests, you might still be arrested. Even if you haven’t had anything to drink at all or you really did just have one beer, you might still be arrested. The decision on whether or not you are going to jail is entirely in the hands of the officer grading those tests. And these are not objective tests. An officer has a lot of leeway in determining whether or not you passed them (yes officers, I know it’s not a pass/fail test, but come on!). While there are technical guidelines that the officers are supposed to follow, wide subjective power is given in determining whether the “totality of the circumstances” warrant an arrest for DWI.