Challenging Field Sobriety Tests: Your Legal Rights and Options

Getting pulled over and asked to take a field sobriety test is scary stuff. Those flashing lights in your rearview, the stern look on the officer’s face as they ask you to walk the line and follow the pen with your eyes—it’s enough to make anyone nervous, even if you haven’t had a single sip of alcohol.

But just because an officer asks you to take a field sobriety test doesn’t mean you have to submit. You actually have more legal rights than you probably realize when it comes to challenging these tests. And knowing how and when to assert those rights could save you a DUI charge.

In this article, we’ll walk through the most common ways people challenge field sobriety testing—from refusing to take the tests altogether to questioning the validity of the results. We’ll also look at the pros and cons of each approach so you can make the best decision if you ever find yourself in this unfortunate situation.

The Right to Refuse Field Sobriety Testing

When an officer pulls you over and suspects you of drunk driving, the first thing they’ll probably do is ask you to step out of the vehicle and perform some field sobriety tests. These usually include the classic walk-and-turn test, the one-leg stand test, and the horizontal gaze nystagmus test, where they check your eye movements for signs of intoxication.

But here’s the thing—you have the right to refuse to take these tests. That’s because field sobriety tests constitute a search under the Fourth Amendment. And searches generally require probable cause and/or consent.

By refusing to take the tests, you avoid providing potentially incriminating evidence. If you know you’re completely sober, refusing may be a smart move. Without field sobriety test results, the officer has a much weaker case if they still decide to arrest you.

On the flip side, refusing to take the tests could be used against you in court. The prosecutor may argue that your refusal indicates a “consciousness of guilt”—basically, that an innocent person would have no reason to refuse. So refusing is not without risk.

Overall, if you’re positive you can pass the field sobriety tests, it’s generally best to take them. But if you have any doubt about your ability to perform the tests perfectly, refusing may give you a better shot at beating the charges. Just know that refusing comes with consequences too.

Questioning the Validity of Field Sobriety Tests

Okay, so you went ahead and took the field sobriety tests. Maybe you were confident you could pass, or you didn’t want to look guilty by refusing. Either way, you did the tests and the officer determined you failed.

Now what?

Well, first know that the field sobriety tests aren’t definitive evidence. In fact, research shows they can be pretty unreliable. According to one study, up to 50 percent of completely sober people will fail the field sobriety tests.

Why is that? Turns out there are many innocent reasons someone might fail. Nerves, lack of coordination, injuries—these can all affect test performance. Not to mention the tests are inherently subjective. What one officer considers “failing” may pass muster with another.

So if you end up charged with a DUI after taking field sobriety tests, make sure your attorney challenges the validity of the results. There are several ways to do this:

• Question the testing conditions – Windy weather, slanted road shoulders, flashing lights—these could have negatively impacted your ability to perform the tests. Your lawyer can argue the results are invalid given the imperfect conditions.
• Challenge the officer’s training – In most states, officers need specialized DUI training to administer field sobriety tests. If your lawyer discovers your arresting officer lacked proper training, it undermines the reliability of the results.
• Point out physical limitations – Medical conditions like back injuries, neurological disorders, and inner ear problems can make the field sobriety tests difficult even for sober people. Your attorney can argue your results were affected by these physical limitations.
• Highlight subjective nature – Since the officer uses their own judgment to assess performance on the field sobriety tests, it’s highly subjective. Your lawyer may be able to find cases where officers “failed” completely sober people to show the unreliability.

If your lawyer succeeds in getting the field sobriety results thrown out, the prosecution is left with a much weaker DUI case against you.

Demanding a Blood or Breath Test

Most of the time, officers will ask you to take portable breathalyzer or blood tests after completing the field sobriety tests. They may even seek a warrant to compel you to take these chemical tests if you refuse.

So should you take them? Or is refusing the better option here too?

The answer really depends on your individual case. If you know you have alcohol or drugs in your system that will show up on the tests, refusing may be wise. This forces the prosecution to rely on other evidence like the officer’s testimony about your impairment.

However, refusing to take a chemical test can also lead to stiff penalties like license suspension. And in some states, prosecutors can use your refusal against you as evidence of guilt.

If you are stone cold sober, on the other hand, taking and passing a breath or blood test gives you solid proof of your innocence. Of course, false positives do happen, especially on portable roadside devices. So there are risks here too.

Overall, there’s no one-size-fits-all answer on whether to take chemical tests after field sobriety testing. Your lawyer can advise you based on the specifics of your case. Just know you do have the right to refuse in most (but not all) situations.

Requesting an Independent Blood Test

Suppose you take the breathalyzer test and it shows your blood alcohol level over the legal limit. Case closed, right? Not so fast.

In many states, you have the right to request an additional blood test from a medical facility and independent lab of your choosing. This independent test acts as a check against potential errors or false positives from the police’s test.

If your independent test comes back under the legal limit, it creates significant reasonable doubt about your intoxication level. At the very least, it gives your lawyer strong ammunition for challenging the prosecution’s evidence.

One catch: you typically have to request the independent test immediately after taking the police’s test, before the alcohol starts leaving your system. So if you want to go this route, don’t delay. The right to an independent test is time-sensitive.

Filing a Motion to Suppress

Let’s say the officer didn’t have probable cause to pull you over or make you take field sobriety tests in the first place. Or maybe they didn’t read you your rights or let you speak to a lawyer when you asked. In cases like these, any evidence obtained from the invalid traffic stop or testing could be inadmissible in court under the exclusionary rule.

This is where a motion to suppress comes in handy. Your lawyer can file one of these motions asking the court to exclude evidence gathered in violation of your rights. If successful, the prosecution may even have to drop the DUI charges altogether due to lack of evidence.

Some common situations where a motion to suppress may work:

• The officer prolonged the traffic stop longer than necessary without justification
• You passed the field sobriety tests but were arrested anyway without probable cause
• The officer didn’t obtain a warrant despite your refusal to consent to a blood draw
• You asked for a lawyer but the officer refused and continued questioning you
• The officer lacked reasonable suspicion to pull you over in the first place

A motion to suppress is a powerful tool for getting illegally obtained evidence barred from your DUI trial. But your lawyer will need strong arguments for the violation of your rights—it’s not a silver bullet. Still, it’s worth exploring if the officer cut corners or disregarded protocols during your arrest.

The Waiting Game: Challenging the Adequacy of Counsel

Drunk driving charges are serious business. Your freedom, driving privileges, and reputation are all on the line.

So if you end up convicted of DUI after your lawyer failed to utilize any of the strategies we just covered—like challenging field sobriety results or filing a motion to suppress—you may have grounds for an inadequate counsel claim.

Basically, you can argue your lawyer’s failure to competently defend you led to an unfair conviction. If a judge agrees, you may be granted a new trial with improved legal representation.

However, inadequate counsel claims are notoriously difficult to win. You’ll need strong evidence your lawyer’s performance fell well below reasonable standards. And you’ll have to show this poor performance impacted the trial’s outcome.

It’s a high bar to clear. But it’s one last option if you feel your lawyer completely dropped the ball and failed to use the many tools available for challenging field sobriety and DUI evidence.

Know Your Rights, Protect Yourself

Dealing with a DUI charge is overwhelming no matter what. But you have more power than you think when it comes to field sobriety testing.

Refusing to take the tests, questioning their validity, demanding independent chemical tests—these are all options if you find yourself in the unfortunate situation of being pulled over on suspicion of drunk driving. And if the officer violates your rights, your lawyer may be able to get the results suppressed entirely.

No one expects to be put through field sobriety testing. But now you know your rights if it ever happens. With a little preparation and assertiveness, you can put yourself in a stronger legal position and avoid a wrongful DUI conviction. Here’s hoping you never need to use this advice—but at least now you’ve got it in your back pocket just in case. Stay safe out there!