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Common Misconceptions: Refusing the Tests

Interviewer: What would you say are the most common misconceptions that people have about field sobriety tests?

Ron Mondello: Well, the most common perception is that you are required to actually perform the field sobriety tests. You don’t have to. However, number one, most folks are going to be scared. They’re going to be intimidated. They’re going to be very nervous.

Number two, the officer, in his discretion, might issue you some type of a disorderly person’s offense or summons for not listening to the police officer’s instructions or not cooperating with the police officer or interfering with an arrest. I don’t know. It could be a number of charges that could be filed by the police officer if you tell them that you’re not going to take the field sobriety tests.

Unlike the Breathalyzer; There is No Law that Compels You to perform the Field Sobriety Tests

However, unlike the Breathalyzer in New Jersey, where you must take the Breathalyzer, there’s no law that says you must perform the field sobriety tests. Again, most defendants or most folks are going to be very nervous and are probably not going to be able to say, “I’m sorry, Officer. I don’t mean any disrespect, but I’m not going to perform those field sobriety tests.”

However, if they do that, they’ve helped their case, because let’s not forget: these field sobriety tests are not for the defense. They’re used by the state as probable cause for the police officers and as evidence in court to convict you of the DWI.

Yes, if you have the intestinal fortitude to respond to the police officer’s request to perform the field sobrieties by saying, “Officer, I don’t mean any disrespect but I’m not going to perform any of those field sobriety tests,” you’ll go a long way in assisting in the defense of your case.

Even If You Have Consumed a Number of Alcoholic Beverages, You Can Refuse The Field Sobriety Test

If in fact you have consumed a number of alcoholic beverages and in fact you were driving your car, and you refuse the field sobriety tests, the officer is going to be angry. The officer is going to be upset, but you can always respond by saying, “I will take the Breathalyzer whenever you deem it appropriate, Officer, and again, I mean no disrespect, but I’m not going to take any of those field sobriety tests.”

Again, you run the risk of the police officer citing you for perhaps a disorderly person defense for not complying with the police officer’s instructions or interfering. I’ve never seen that, quite frankly, but then again, most of my clients do in fact perform the field sobriety tests when asked to do so.

If you have the nerves of steel, politely – and I underline, bold, and highlight “politely” – decline.

Intimidation Factor

Interviewer: Do you think that there’s an intimidation factor on part by the police officer?

Ron Mondello: An intimidation factor? Well, most people that get pulled over by a police officer are going to be nervous. They’re going to be intimidated to some extent. I don’t know if the field sobriety tests add to a level of intimidation. I’m not so sure. None of my clients have ever said that. They’ve simply performed the tests when they’ve been instructed to perform the tests.

Some people do very well. Some people do very poorly. In fact, some people who have consumed zero alcohol do very poorly on some of these tests.

Interviewer: Right.

Ron Mondello: In particular would be the elderly, folks that are very much overweight, and folks that are very much fatigued. They’re not foolproof.

By Ronald P. Mondello