Jump to Navigation

our practice

Can you politely decline to participate in field sobriety tests?

Perhaps you like to stop off after work to sit with friends during happy hour. You have done this far too many times to count without any issues driving home thereafter. Perhaps one day, your luck will run out.

A police officer may pull you over on your way home after happy hour. If you had anything to drink, it may be on your breath. Now the officer suspects you of impairment and asks you to step out of the vehicle. What happens in the next few minutes could affect your future. The officer will probably ask you to participate in field sobriety tests.

Do you have to participate in field sobriety tests?

You may be surprised to discover that you do not have to participate in these tests. Many people are under the impression that they must participate, and police officers do nothing to dispel that perception. You see, police officers may only need reasonable suspicion to stop you, but they must have probable cause to arrest you, which requires more alleged evidence. Failed field sobriety tests provide at least some of that proof.

If you agree to the tests and fail, which is possible even if you had nothing to drink, you end up helping the officer establish probable cause. Many people fail these tests based on physical or other health conditions, but an officer's bias also plays a role in the results. If an officer already suspects you of intoxication, reaching the conclusion that you failed the tests may not be difficult. This subjectivity is a primary factor in why some courts will not rely on such testing as evidence of impairment.

What happens after you refuse to participate?

More than likely, the officer will attempt to convince you that you should take the tests. He or she may use veiled threats, guilt or other tactics to try to talk you into participating. Remain calm and polite but persistent in your refusal. Not taking the tests may not keep you from ending up under arrest, but at least you are not providing the officer with probable cause based on failed field sobriety tests.

As soon as you are able, you may want to begin working toward a resolution to the situation that provides you with the best outcome possible. This may include challenging field sobriety tests if you participated in them, challenging the roadside breath test if you submitted one and reviewing the circumstances of the traffic stop to determine whether it was, in fact, a legal stop in the first place. These and other factors could make a difference in the outcome of your case.

No Comments

Leave a comment
Comment Information
FindLaw Network

McHenry Haszard Law
1220 Lincoln Mall
Suite 250
Lincoln, NE 68508
Phone: 402-858-4263
Toll Free : 800-231-3624
Fax: 402-476-2301
Map and Directions

With heavy hearts, we mourn the loss of John M. McHenry. John, the founder of our firm, was a cherished husband, father, grandfather, friend, colleague, mentor and leader. Please join us in offering friends and family of John our deepest condolences. He will be forever missed. Click here to view John’s obituary.

McHenry Haszard’s experience enables them to evaluate your situation and provide advice that will give you a sense of stability in turbulent situations. Learn More +