Do I have to do Roadside Field Sobriety Tests?

In the State of Arizona, the answer isn’t a clear “yes” or “no” and you’ll have to decide what is the right choice for you. If we explore the policies behind the Field Sobriety Tests that are held in Arizona, we get a clearer picture of what our options are.

Field Sobriety Tests or “FSTs” are a series of roadside coordination tests. In the late ‘70s and early ‘80s, they were tested for efficacy and three were considered validated (which means they correlate to a particular blood alcohol concentration–it does not mean they are valid). These three tests are the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and the One-Leg-Stand (OLS).

HGN
When an officer waves a pen or finger back and forth in front of your eyes, the officer is looking for a jitter, which is called nystagmus, to the moment at certain instances. The officer the records this as an indicator as to whether or not you are intoxicated. If there are 3 different instances in each eye, which gives a total of six cues, the HGN test is then considered failed. Bear in mind, this subjective test is not reproducible, and there are many completely normal reasons why the eye might show nystagmus.

WAT
This is the classic “walking the line” test where a person takes 9 steps heel-to-toe down a straight line, turning and then walking back. The officer is looking for 2 or more mistakes in order to fail the person. The test itself is designed to fail as many sober people fail this test, and many times officers have been proven to “double dip” on cues. This means that if a person steps off the line, that person would also miss the “heel-to-toe touch”.

OLS
The OLS consists of a person standing on one leg, and counting to thirty. If the person does two or more of the following four things: sways, hops, puts foot down, uses arms for balance, the person fails.

Choosing What’s Right for You

Considering answering YES.

The Arizona Supreme Court has said that Field Sobriety Testing is not optional. The Supreme Court has also deemed it to also be considered a “reasonable search”. Bear in mind that that 4th Amendment to the United States Constitution only protects people against an “unreasonable” search. By making this decision the Arizona Supreme Court has determined that with enough reason to detain a driver, that driver must submit to the testing procedures given by the officer.

This means that if the driver declines the test, the police can automatically take that as a sign of guilt and use it for probably cause for arrest. It also might mean that a prosecutor will argue that the driver (the defendant) refused to take the test because he or she knew they would fail one or more tests. This however does not mean that you as the defendant cannot fight that allegation and that there are many innocent reasons for declining to take roadside tests.

This is the sole reason you might want to answer “yes” to taking Roadside Field Sobriety tests.

Consider answering NO

The first thing to note is that there is no criminal or civil penalty for declining to take a Roadside Field Sobriety test. The policy cannot force you, charge you with a crime specifically for refusing to take the test or take your license away. These are not punishable offenses.

This does not mean however that someone severely under the influence can simply refuse the test and drive away. With probable cause you may still be arrested.

Also, even where a person exactly performs every portion of a FST, the result is inconclusive. If the you do not take the FST, the result is also inconclusive. This means that the smart thing to do as the driver is to start out with the best possible result of inconclusive (as opposed to failing) and decline to take the tests.