Suppose that you have been out at a bar. It is 1:30 a.m. and you are headed home. An officer sees you struggle as you get into your car and start the engine. He thinks you may be impaired. Fair assumption when you add the facts up – right? So before you can drive away, he approaches you:  "Good morning, Sir. Have you been drinking?" You admit that you have.  "How much?" Couple beers, you tell him. But he smells alcohol and he thinks your eyes are red, puffy, bloot-shot , even though that may be the way your eyes look every day.  "I’d like to have you step out of the car and perform some simple tests," he says. "Pass these and you are on your way."

Should you take the "simple" field sobriety tests? 

Let’s start this out by considering what the test will be used for. The officer will use the test to confirm his impression that you are operating a motor vehicle while impaired or "driving under the influence." DUI. The failure of the tests – which is as near a certainty as awaking to wet streets after a night of rain storms – provides the officer with "objective" evidence establishing probable cause to arrest you for that charge. It is not really very "objective" as the test requires the officer to interpret your performance, but it is evidence that can cause the next domino to fall: arrest you for DUI and require you to take or refuse the breathalyzer.

There is no "constitutional right" to refuse the request to perform the field sobriety tests, but there is no constitutional duty to require you do so either. An Idaho case decided by the Court of Appeals in 2008 explains the competing duty to take the tests with a driver’s power to refuse. Read the case if you want more info but here is the bottom line. They cannot make you take the field sobriety tests.

In my opinion, there is little to gain from taking the field sobriety tests if you have had more than a single drink. 

When you refuse the field sobriety tests, you will be told that you have to tests. Politely disagree. And don’t be a jerk or a "sidewalk lawyer."  Don’t argue that you have a right to talk to a lawyer – you don’t. And do not get all over the cop about how unfair it is or how you can’t possibly pass the field sobriety tests because the sidewalk is sloped or your legs are too tired. Just be respectful. Cops are people too. People with authority. They don’t want to get into an argument with you and you have no real power to impact on them anyway. The nicer you are, the better.

And that officer is going to write a report. If you go to trial, he or she will rely on that report to refresh their memory of what happened. You do not need a report that is colored by the officer’s opinion that you are a jerk.

You will be arrested for DUI and a breathalyzer test will be offered to you. As I have recently written, you should almost always take it.  If you don’t, your privileges to drive in Idaho are going away for a year and the punishment from the court if you are convicted will be more harsh than if you had taken the BAC and blown greater than .08.

Here’s my reasoning as to this point – I have never seen anyone arrested for DUI who passed the field sobriety tests. Most of us could not pass the tests dead, cold sober. Your refusal to take the field sobriety tests will be used against you if you fail the breathalyzer. But let’s face it, a failed BAC with failed FSTs is worse. 

What if you are stone, cold sober? Nothing to drink. Take the test. Even if you fail, you will pass the breathalyzer – assuming you had NOTHING TO DRINK. And I mean nothing – zero, nadda, zip – not even one.

And one more thing – the safest way to avoid this problem is simple: had a drink? Do Not Drive. Get someone else to take you home – like a friend or a taxi. We all have a serious interest in preventing needless death and injury on the roads.