Do I Have the Right to Refuse a Sobriety Test?
August 7, 2020
Virginia has some of the strictest traffic laws in the country. The stringency owes partly to a genuine desire to keep people safe and partly to a desire to collect revenue through fines. DUI offenses are especially harsh in the state. Virginia troopers patrol the highways of the state aggressively, constantly on the lookout for drivers under the influence of drugs and alcohol.
Field sobriety tests (FSTs) are a battery of tests used by police officers to determine if a person is intoxicated by drugs, alcohol or a combination of both. These tests are used to meet probable cause requirements for an arrest, and they can be used as evidence toward securing a conviction.
The main three standard field sobriety tests include:
1. Horizontal Gaze Nystagmus test (HGN)
The officer will have you follow a stimulus moving side to side with your eyes only, while checking your elses for involuntary jerking.
2. Walk and Turn test (WAT)
The officer will have you walk 9 heel-to-toe steps in a straight line, turn around in a prescribed manner, and walk 9 heel-to-toe steps back on the same line. While you do this, the officer will evaluate your ability to maintain your balance and coordination, as well as follow directions.
3. One Leg Stand test (OLS)
The officer will have you stand on one leg while raising the other leg approximately 6 inches off the ground for 30 seconds while they assess your balance and coordination.
The officer can also use a Preliminary Breath Test (PBT). This is roadside breathalyzer tool used to get a preliminary sense of your blood alcohol count (BAC)—that is, the amount of alcohol in your blood stream. The BAC legal limit in Virginia is .08. However, by statute, ANY presence of alcohol on a PBT can establish probable cause for an officer to arrest you for DUI.
Refusing a Field Sobriety Test
Field sobriety tests are used as an investigative tool for police officers to determine whether you are intoxicated. You are not legally required to take any of them, not even the PBT. For an officer to coerce you into doing so would be a violation of your rights. By law, the performance of FSTs and the PBT must be voluntary and may not be coerced or forced.
Although you have the right to refuse a sobriety test, police officers are authorized to arrest you if they establish probable cause by other means. They can take you into custody if they have probable cause to believe that you are driving under the influence of drugs or alcohol based on your driving behavior, manner, speech, disposition, muscular movement, and/or demeanor. If you are taken into custody, the authorities may ask you to give a breath or blood sample for chemical testing. You can refuse this as well but, unlike refusing the FSTs or the PBT, this could result in an additional charge of Unreasonable Refusal.
Under Virginia Implied Consent Laws, you are required to submit to a breath or blood test at the request of an officer who has probable cause to arrest you for DUI, lest you receive an additional charge of Unreasonable Refusal. However, if it is concluded at a suppression hearing that the officer did not have probable cause to arrest you, then this would be dispositive of a refusal charge and cause it to be dismissed along with the DUI charge.
You Still Have a Right to Defend Yourself
You may have good reason to refuse the field sobriety test. At the time, you may have been concerned that you would fail it because of a medical condition or because you had been drinking. No matter the reason for your refusal, you should hire a Fairfax DUI lawyer once you have been arrested.
A criminal lawyer Fairfax VA will examine every aspect of the stop and your interaction with the police officer. If you do have a medical condition that makes carrying out any of the three sobriety tests difficult, then this fact can be used in your defense. The officer’s reason for stopping you can also be called into question. If the officer cannot justify the reason for stopping you or it is revealed as defective, then it is a violation of your Constitutional rights and warrants dismissal of your charge.
The point is that you deserve the strongest defense possible if you have been jailed and charged after refusing a field sobriety test or PBT during a DUI investigation. Rudolphi Law has the Virginia criminal defense attorney for you. We are always in your corner.