Do you have the right to refuse a field sobriety test?
In Colorado, law enforcement officers may apprehend drivers who they suspect may be under the influence of alcohol or drugs. In some cases, they may ask the driver to submit to a field sobriety test. Unfortunately, field sobriety tests are highly flawed methods of testing that are difficult for even people who are completely sober to pass. Because of this, many people often wonder, “am I allowed to legally refuse a field sobriety test?”
Fortunately, the Fourth Amendment to the Constitution (as well as Article II, Section 7 of the Colorado Constitution) protects all citizens against unreasonable search and seizure without probable cause. Furthermore, in Colorado, submitting to a field sobriety test is completely voluntary. You have the right to politely refuse a sobriety test, and I highly recommend that you do so, and contact me, criminal defense lawyer Christian A. Schwaner, as soon as possible.
As an experienced criminal defense attorney representing those in Colorado Springs and the surrounding areas, I know how field sobriety tests are administered and the very real flaws in such types of testing. If you’ve been arrested and charged with a crime and a field sobriety test is part of the evidence against you, let me go to bat for you.
Christian A. Schwaner, P.C. can provide free initial consultations at jails or police stations when necessary. Call (719) 577-9700 or contact me online to schedule a confidential consultation.
Types of Field Sobriety Tests
The National Highway Traffic Safety Administration (NHTSA) sponsored research in 1975 that led to the development of a Standardized Field Sobriety Test (SFST) battery consisting of three tests administered and evaluated by officers to assist in making arrest decisions. The NHTSA SFST consists of three field sobriety tests:
Horizontal Gaze Nystagmus (HGN)
Nystagmus refers to involuntary eye movement. With this test, an officer looks for involuntary jerking of the eyes as they move to the side. The officer will be looking for lack of a smooth pursuit, nystagmus being sustained at maximum deviation, and the onset of nystagmus occurring before the eyes reach 45 degrees.
Walk and Turn
During this test, a subject is typically asked to take nine heel-to-toe steps along a straight line with their arms at their sides, turn, and then take nine more heel-to-toe steps. An officer will be looking to see if a person cannot keep their balance during instructions, starts too soon, stops walking, does not step heel-to-toe, steps off the line, has to use their arms for balance, or takes an incorrect number of steps.
The subject is asked to stand with their feet together and their arms at their side. They raise one foot about six inches off the ground, look at it, and then count aloud to 30. During this test, an officer will be looking to see if a person has to use their arms to maintain balance, sways while balancing, hops up and down, or puts their foot down before reaching 30.
While these are the three tests approved by NHTSA, they are not without flaws. People could easily fail tests because of simple exhaustion or basic issues with maintaining balance because of other medical conditions.
In some cases, officers may use other field sobriety tests besides those authorized by NHTSA.
Some of the other possible field sobriety tests can include the Romberg test in which a person keeps their feet together and their head back with their eyes closed for 30 seconds, the finger-to-nose test in which a person tilts their head back with their eyes closed and touches the tip of their nose with the tip of their index finger, the alphabet test in which a person is asked to recite a portion of or the entire alphabet forwards or backwards, or any kind of counting test.
Your Right to Refuse Field Sobriety Tests
Some people assume that express consent in Colorado means that they are expected to comply with all tests requested by a law enforcement officer. An express consent violation is important because refusing to provide a requested breath or blood sample can result in an automatic revocation of a driver’s license, and the refusal can be used against the alleged offender in a criminal prosecution of a DUI or other criminal case.
The express consent provisions do not apply to field sobriety testing, and a person will not face any consequences for refusing to submit to field sobriety tests. The officer may note their lack of cooperation in a police report, but there are no administrative or civil penalties for refusing to submit to this testing.
In most cases, it is to a person’s advantage to decline field sobriety testing because doing so usually avoids providing any evidence of impairment to a police officer. While field sobriety tests are not supposed to have a pass or fail measure to them, with tests only being conducted to observe possible signs of intoxication, people need to understand that the tests are very difficult for even completely sober individuals to perform properly.
You should avoid agreeing to submit to these tests even when you are confident in your ability to pass. Any errors you commit could lead to an officer presuming the mistake was a sign of impairment, and they may use it as one basis for arresting you for DUI.
Contact a Colorado Springs Field Sobriety Test Defense Attorney
Field sobriety tests are not the same types of concrete evidence as BAC levels. You should not assume that you have a hopeless case just because you did not fare well in field sobriety tests, as a jury may be sympathetic to the idea that the accuracy of these tests is never infallible.
Were you arrested for DUI in Colorado Springs or a surrounding area of Colorado after submitting to field sobriety tests? Your supposed failure on these tests is not necessarily proof of intoxication, and you will want to make sure that you quickly seek the help of a skilled criminal defense lawyer.
Christian A. Schwaner, P.C. aggressively defends clients accused of drunk or drugged driving and fights to get criminal charges reduced or completely dismissed. You can have our attorney provide a complete evaluation of your case as soon as you call (719) 577-9700 or contact us online to set up a free consultation.