If you pulled over for drunk driving in Virginia, it’s likely that law enforcement will ask you to take Field Sobriety Tests (FSTs). Before you find yourself in that situation, here’s some information that you need to know:
What are Field Sobriety Tests?
Law enforcement claim that Field Sobriety Tests “scientific” and “objective” tests that can determine whether you’re drunk. Law enforcement typically requests that you take FSTs when they are investigating you for drunk driving.
During a traffic stop, law enforcement will ask you to exit your vehicle and perform FSTs to “prove 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 you to 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 say this is evidence that you’re drunk.
- 9 Step Walk and Turn: They will direct you to walk in a straight line “heel to toe.” 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 say that this is evidence that you’re drunk.
- Horizontal Gaze Nystagmus: They will ask you to follow an object (pen, their finger, etc.) with your eyes. Should your eyes make “jumping” motions, they will say that this is evidence that you’re drunk.
- Preliminary Breath Test: Law enforcement will give you a small device (a Preliminary Breath Test aka a PBT). The PBT detects detect alcohol on your breath. They will ask you to blow into it. If the PBT detects alcohol, they will say that you’re drunk.
To be clear, these are just a few tests law enforcement uses. Different departments use other types of Virginia field sobriety tests. They also make observations while you take the FSTs that they claim prove you’re drunk. These include “slurred speech, bloodshot eyes, confused responses” and others observations.
Do you have to take these tests?
Under the Virginia and United States Constitution, you do not have to give evidence against yourself. Therefore, you can refuse FSTs. Because of the non-scientific nature of these tests, we believe that they are typically harmful to your case and 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 relevance” in an officer’s decision to arrest a suspect for DUI. So, if you go to trial, the court may allow testimony about your refusal to take the FSTs. Nevertheless, at least in the cases that we see, such testimony is far better than people who attempt these FSTs. In short, the tests were 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.