If you’re a Virginia driver, and you’re pulled over for drunk driving, it’s likely that law enforcement will ask you to take Field Sobriety Tests (FSTs). Before you find yourself in that situation, here’s information you need to know:
What are Field Sobriety Tests?
FSTs are purported “scientific” and “objective” tests to determine whether you are impaired from alcohol. Law enforcement typically requests that you take FSTs when they are investigating you for drunk driving.
During a traffic stop, law enforcement will ask to you exit your vehicle and perform FSTs to “show that you’re not drunk.” Here is a list of typical FSTs:
- One Leg Stand: They will ask you to stand with your feet squared up with your shoulders. They will then ask that you raise one of your legs for a period of seconds with your arms to your side. Should you sway, raise your arms, or put your raised leg down, they will count this against you.
- 9 Step Walk and Turn: They will direct you to walk a straight line. They will give you instructions to take nine steps “heel to toe” and not to step off that line. And they will show you how to turn once you’re nine steps out and walk nine steps back. Should you fail to walk a straight line, not walk heel to toe, sway, or turn in a manner they deem unacceptable, they will count this against you.
- Horizontal Gaze Nystagmus: They will ask you to follow an object (be it a pen, their finger, etc.) with your eyes. Should your eyes make “jumping” motions, they will count this against you.
- Preliminary Breath Test: They will present you with a small device (a Preliminary Breath Test aka a PBT) that is meant to detect alcohol on your breath. They will ask you to blow into it. Should alcohol register on this PBT, they will use this against you.
To be clear, these are just a few tests law enforcement uses. Some use other types of tests that they claim are also “scientific” and “objective.” They will also use other observations they note while you take these tests against you, such as “slurred speech, bloodshot eyes, confused responses” and others to assert that you demonstrated signs of impairment.
How do they use the results of these tests?
If they arrest you for DUI, law enforcement will use their “findings” of your FSTs to establish you were drunk driving. Most will write down their findings and put them in their police reports. In many jurisdictions, they will record your tests from their cruiser video and play in court to establish that you were drunk driving.
Am I required to take these tests?
Under the Virginia and United States Constitution, you are not required to give evidence against yourself. Therefore, you are permitted to refuse any or all of these FSTs. Because of the non-scientific nature of these tests, we believe that they are typically harmful to your case recommend asserting your 5th Amendment Right to Remain Silent.
With that said, the Court, in Jones v. Commonwealth, 279 Va. 52 (2010), found that refusal to submit to Field Sobriety tests “may have some relevant” in an officers decision whether to arrest you for DUI. So, if you go to trial, the court may allow testimony about your refusal. Nevertheless, at least in the cases that we see, such testimony is far better than people who attempt these FSTs. In short, they are created for you to fail.
I thought I was required to take a Breath Test under Virginia Law?
This is a big misconception. There is no requirement that you take the Preliminary Breath Test (PBT) on the side of the road when being investigated for a Virginia DUI.
However, there is a requirement that you take the breath test back at the police station under certain circumstances. Should you refuse to take this test, you may be charged with Civil Refusal, which can lead to an automatic suspension of your privilege to drive here in Virginia for a year. The PBT and the breath test at the police station, however, should not be confused.
Do you have more questions about your Virginia DUI? Reach out.
Abrenio Law has been defending DUI cases for over a decade. Should you have questions, give us a call for your FREE Consultation at Ph. 703-570-4180. You can also check out Northern Virginia DUI Attorney James Abrenio here.