Flagstaff, AZ – Field sobriety tests. Nobody wants to do them. When you pass by a person on the side of the road, walking in a straight line with their arms extended outward, while a cop shines a flashlight on them and takes notes of ever swaying movement, you always think, “Wow, glad that’s not me!” Well, what if it is you one day? You should know the facts.
You can decline field sobriety tests under Arizona DUI laws.
Your refusal can be used against you, but that may be less of a problem for you than failing FST’s. It doesn’t matter how the police officer phrases the question:
“Will you do me a favor, ma’am? I’d just love if you’d make my job easier and do a few simple tests for me and then I’ll send you on your way.”
“You said you haven’t been drinking. Great. Show me by doing a few tests please?”
“If you do a few tests successfully, I’ll let you drive away without a ticket. How about it?”
No matter what, the police cannot force you to perform field sobriety tests. They are not required in Arizona. And field sobriety tests (or “FST’s”) are fraught with peril.
Every mistake, every sway, every time you put a foot down when you’re not supposed to, the officer will write it down and use it to establish probable cause that you are impaired so that you can be arrested and charged with a DUI. \
At a legal training course as a prosecutor, I was once asked to perform FST’s in front of a class. I was sober, of course. How did I do? FAIL. Well, it’s not really a pass/fail test. But I made two (2) mistakes, which would have been noted as proof of my impairment. The truth is that a sober person, on the side of a road, in the dark, with adrenaline rushing due to the police officer’s presence, shining blue-and-red lights causing distractions, cars whizzing by, and many other factors, would not perform FST’s perfectly.
Rather than give the police “evidence” of your impairment, even if you are not impaired at all, you can respectfully decline to perform the tests. Tell the officer if you have any injuries to your legs, feet, or other body parts that would cause you problems with performing the tests. What’s the harm in refusing to perform FST’s?
Well, the truth is that you don’t have a legal right to refuse a lawful search. So if the officer has reasonable suspicion that you were driving while impaired, then your refusal to perform FST’s is admissible at trial against you, and the prosecutor can argue that you refused to perform FST’s goes to show your guilt. See State ex rel. Verburg v. Jones (Phipps, Real Party in Interest), 211 Ariz. 413, 121 P.3d 1283 (Ariz. App. Div. 1, 2005).
It’s not the perfect argument of your guilt, but it can hurt your case. So it is a catch 22 in many ways. Unless you know you can nail the FST’s perfectly, the risk is all yours to consider. Know the consequences.