Do I Have a Right to Refuse Field Sobriety Tests?
Americans are protected from unlawful search and seizure by the Fourth Amendment to the Constitution of the United States and by Article II Section 7 of the Colorado Constitution. This essential right protects us all against arbitrary arrests, and forms the basis for the rules made regarding search warrants, stop-and-frisk, safety inspections, and other criminal issues.
Field sobriety tests constitute a full “search” in the constitutional sense of the term. See People v. Carlson, 677 P.2d 310 (Colo. 1984). Here’s a little more about the subject from The Bussey Law Firm, P.C. If you have specific questions, please don’t go off this general information—call us for a free consultation.
What Are SFSTs?
Standardized Field Sobriety Tests (SFSTs) are tests conducted during a traffic stop in order to gather evidence to support the conclusion that a driver is impaired. There are three parts to the SFST—in fact, the entire script by the National Highway Traffic Safety Administration is publicly available online—here is a quick summary.
- The horizontal gaze nystagmus (HGN): The driver is asked to follow a moving object from right to left and back again. Under normal circumstances, when you gaze far to the side, an involuntary jerking of your eyeballs occurs. If you are alcohol-impaired, this nystagmus will be more pronounced at lesser peripheral angles, and will often occur when your eyes are tracking a moving object. Exaggerated HGN may also be caused by certain prescription medications.
- The walk-and-turn-test: The driver is asked to take nine steps, heel-to-toe along a straight line, then turn on one foot and return in the same way. If you are impaired, you may begin before the instructions are finished; you may be unable to maintain your balance; you may not touch heel-to-toe; you may take the wrong number of steps; you may use your arms to balance. These are all indicators of insobriety that the police officer will be looking for.
- The one-leg stand test: The driver is asked to stand with one foot held about six inches above the ground and count aloud, beginning with one thousand and going up until told to stop. The officer will time the driver for thirty seconds and look for inability to balance, swaying, hopping, or putting the foot down.
Not every state runs these tests to the exact standards set by NHTSA. “Substantial compliance” is required, see Ohio v. Boczar, 863 N.E.2d 155, 160 (Ohio, 2007), and when states deviate too much from the standard, the evidence found in these tests can be thrown out by a court.
Can I Refuse to Take a Field Sobriety Test?
In the state of Colorado, field sobriety tests are voluntary. You have a right to refuse them, and we recommend doing so with politeness and firmness. However, you do NOT have the right to refuse chemical testing—blood, breath, or urine analysis—if the officer asks it of you. Express consent is an exception to the Fourth Amendment and Article II Section 7 of the Colorado Constitution. See generally Turbyne v. People, 151 P.3d 563 (Colo. 2007). A chemical test completed pursuant to express consent is a search that every person “consents” to by operating a motor vehicle in the state of Colorado.
This is a stressful situation, so try to stay calm and keep your wits about you. If the police officer tells you to step out of the car and instructs you to perform a field sobriety test or an initial breath analysis, politely decline and remain silent. Do not try to explain or enter into a conversation with the officer. All you have to say is: “I prefer not to do them.”
If you have been arrested for DUI in Colorado, contact The Bussey Law Firm, P.C., straight away. If you were coerced into taking a field sobriety test, you may be able to contest the findings. We can explain your situation and help you decide which defense is best for you—call (719) 475-2555 to schedule a free consultation.