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Deciding to Consent to Field Sobriety Testing

by Seth Azria on 5/03/2016

This article was adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books. Please call (315) 364-1155 or email us for a free consultation with Mr. Bruffett about your DWI case.

You do not necessarily have to consent to take the field sobriety tests in New York State; that decision is completely up to the driver. However, I generally tell my clients that if they do not cooperate they are essentially giving the officers a valid, reasonable suspicion that they have been drinking and driving. Therefore, refusing to take the field sobriety tests is rarely helpful to a driver.

Basically, the field sobriety tests are aimed at testing the driver’s level of cooperation and focus and to determine if any level of intoxication or impairment is present. It also allows the officer to interact and observe the suspected intoxicated driver. At the same time, a driver can refuse to take the FSTs but agree to have their BAC level tested by taking a Breathalyzer test at the police station. Officers will generally accommodate such a request; and refusing to take the FSTs does make it more difficult for the DA to prove their case—i.e., they cannot use any evidence from the one-legged stand, walk and turn, or HGN tests; all they can point to is the BAC result.

Simply put, if you do not perform the FST tests as requested you will not be providing evidence to the prosecution to help build their case. That being said, while you may be making the prosecutor’s job much more difficult, you have also put yourself in a position where your license could be suspended for years. Again, taking the breath test is mandatory, while taking the field sobriety tests is not mandatory, but the driver needs to know that their conduct in this area will be used against them. While you are not going to be charged for not cooperating with the field sobriety testing process, the officer is going to let the judge and the DA know about your refusal; and that is going to be an area that is ripe for questioning. For instance, when you are on the stand the DA is likely to ask, “Why didn’t you take this test?” As a defense attorney I often ask to see the arrest report in a case where the client has not taken the FSTs because I want to know that the prosecution will not be able to use any evidence of improper coordination, improper balance, or poor HGN performance: by refusing to take these tests you already eliminated such evidence from the prosecutor’s quiver; and again, their job is going to be more difficult. At the same time, as previously noted, I always tell my DWI clients that we can litigate or negotiate but you generally cannot do both.

My advice to clients who may be stopped is simple: be polite, be cooperative, and do not lie. Lying is not illegal, but it never looks good later on when the facts of the case are put on paper. I tell people that if they have a legitimate excuse with respect to some sort of medical condition that is going to affect their performance on a field sobriety test then they should be honest and tell the officer about their condition right off the bat. Indeed, DWI is a unique offense because in most other types of cases, a defense lawyer will tell their client, “Do not talk to or cooperate with the police without talking to me first.” However, if you exhibit such behavior in the context of an alcohol-related offense you will likely come across as guilty and under the influence. Basically, what is good advice for a client who is charged with petty larceny or assault is horrible advice for someone who is charged with an alcohol-related offense. If you do not answer a question or just stare at the officer while exercising your right to not incriminate yourself, you will often appear to be intoxicated, thus unwittingly providing the officer probable cause to continue with the arrest.


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