Stand with your feet together. Watch the tip of my pen and follow the movement with your eyes without turning your head. Stand on one leg and raise the other off the ground. Walk on this line, turn, and walk back. Field sobriety tests involve a lot of orders and potentially difficult-to-follow instructions whether you are sober or not. Do you have to put up with them if you are pulled over?
Generally speaking, there is no law requiring you to take field sobriety tests when you are pulled over for a potential DUI/DWI. However, this only refers to the tests such as the walk and turn and leg raise; you cannot refuse a post-arrest chemical breath test without facing license suspensions and other penalties. Additionally, while you can legally refuse field sobriety tests, it might make the police angry and more determined to arrest/convict you of drunk driving.
For a free, private case evaluation, call our Cherry Hill, NJ DWI defense lawyers at Lombardo Law Group today at (609) 418-4537.
Can I Say No to Field Sobriety Tests in NJ?
There is a common misconception that you must comply with every order the police give you during a traffic stop and that you cannot refuse things like a portable breath test or field sobriety tests.
Neither of these kinds of tests is required, and the only test that you cannot legally refuse without penalties is a post-arrest test (such as a Breathalyzer, Alcotest, or blood test). Otherwise, you can refuse to take field sobriety tests for any reason or no reason.
If you have a physical disability or other problem that prevents you from fulfilling the requirements of the test, you might also want to avoid taking the test so that you do not “fail” it for another reason. Officers will typically decline to test you if your disability would interfere with the legitimacy of the test.
However, you might simply not want to participate in the test, or it might be cold outside your car, and you do not want to get out on the side of a dark highway and perform physical tasks.
In any case, you have the legal ability to refuse to take field sobriety tests, but that does not always mean that you can refuse with no consequences.
Possible Penalties for Refusing Field Sobriety Tests
It can be hard to say no to a police officer, but doing so is not necessarily a crime. However, that does not mean there are no consequences. You can legally refuse to submit to a field sobriety test after being pulled over, but doing so might not work in your favor in the long run.
Since there is no law requiring drivers to submit to field sobriety tests, there are no statutory penalties for refusal. You should not face criminal charges, fines, or any other legally imposed penalty for refusing to submit to field sobriety tests.
As described below, refusing field sobriety tests may come up in court and be used against you. It might also make the police more suspicious, and they might investigate more thoroughly for signs of intoxication.
If you are visibly intoxicated and refuse a field sobriety test, the prosecutor in your case can use this information against you in court. They may argue that you refused because you were intoxicated and did not want to get caught.
Can the Police Retaliate if I Refuse Field Sobriety Tests in NJ?
There is generally no direct penalty for refusing field sobriety tests like there is for refusing to take a post-arrest breath test. Even so, there are some potential practical consequences that our Folsom, NJ DWI defense lawyers should warn you about.
Police Retaliation for Refusing Field Sobriety Tests
First and foremost, the police do not like it when you do not cooperate with them. It is generally best to be polite when speaking with police. If you want to refuse field sobriety tests, you should say so politely but firmly. You may also want to say that it is your lawyer’s advice that you refuse, allowing them to place the blame on someone other than you.
If the officer is annoyed or angry because you do not want to perform the tests, they may try to threaten you with a DWI arrest or otherwise pressure you into taking the tests anyway. It can be hard to say no to an armed police officer on a dark road, and giving in to this kind of pressure is very common and understandable.
While the police may be frustrated, they are not allowed to retaliate. If you feel you were somehow punished or penalized by law enforcement because you would not submit to field sobriety tests, talk to your lawyer about it right away.
Arrest After Refusing Field Sobriety Tests
One other thing to consider is that police cannot (legally) arrest you without grounds to do so. If they have enough evidence to arrest you for drunk driving, they will do so whether you take field sobriety tests or not. If you refuse and they arrest you without proper grounds to do so, our New Jersey DWI defense lawyers can fight the arrest.
Remember, field sobriety testing is often conducted as a way for law enforcement to gather probable cause to execute an arrest. If you refuse to do the tests but they have sufficient probable cause, they can still arrest you. If they do not, they may become agitated, but they should not be allowed to arrest you.
Forced Testing After Refusal
If you refuse to do field sobriety tests, the police are not allowed to make you comply. They might be frustrated at your refusal to comply, but they have to move on. If you were forced to perform field sobriety tests after you clearly and directly said no, tell your lawyer. It is possible that the results of forced tests may be excluded from the case.
The police might tell you that you have to perform field sobriety tests as part of New Jersey’s implied consent law. This law requires drivers to submit to post-arrest chemical testing. If they do not, they may be charged and penalized. Remember, the implied consent law does not apply to field sobriety tests.
How Refusing a Field Sobriety Test May Be Used Against You
You can refuse to perform field sobriety tests, and the police are not allowed to retaliate. However, there may be other consequences that you should discuss with your attorney.
First, your refusal may be combined with other evidence to establish probable cause to arrest. Drivers often think that if they refuse to perform field sobriety tests, the police will not have enough evidence to arrest them. However, your refusal may seem suspicious in light of other observable evidence, and the police may actually use your refusal as probable cause to arrest.
Second, your refusal to perform field sobriety tests may come up in court. The prosecutor may call the arresting officers as witnesses and ask them if they conducted field sobriety tests, and the officers may answer that you refused. This could lead a jury to believe that you had something to hide.
In the end, there are no statutory penalties for refusing to perform field sobriety tests, but your refusal could work against you in court. If field sobriety tests came up during a DWI stop, tell your lawyer about it, whether you complied or not.
Can I Beat DWI Charges by Refusing Field Sobriety Tests in NJ?
Generally speaking, refusing field sobriety tests will not be enough to beat the charges against you. In many cases, police will be able to get enough evidence to charge you with drunk driving even without the field sobriety tests.
What police and prosecutors do must be analyzed at each step of the case: did they have reasonable suspicion to pull you over? Did they have probable cause to arrest you? Did they prove the case to the judge to convict you?
In order to make the arrest, police need probable cause that you were driving under the influence of drugs or alcohol, and they may get sufficient evidence without field sobriety tests.
Generally, police will want more than just a “failure” on the tests to confirm you were drinking and driving, and they will look for the odor of alcohol on your breath, slow movements, bloodshot eyes, stumbling/fumbling motor skills, and other evidence before even considering making you perform field sobriety tests.
If this gets them enough proof to arrest you, they do not need the field sobriety tests to move forward with their case.
Other Evidence Besides Field Sobriety Tests
Drivers often refuse to perform field sobriety tests because they do not want to give the police any information that may be used against them later. However, the police might gather more than enough evidence to arrest you without the use of field sobriety tests.
Some evidence you cannot hide even if you tried. If police officers pull a driver over and notice a smell of alcohol emanating from the vehicle, this information may be used as evidence against you.
Alcohol tends to affect the way people talk, especially when people drink a lot. The police will undoubtedly ask you some questions during a traffic stop, and they might detect slurred speech. This is such a common sign of intoxication that the police will likely assume you are intoxicated and treat the stop as a potential DWI.
The police may begin collecting evidence to arrest you before they pull you over. They might pull you over because they notice erratic driving. Speeding, weaving between lanes, and sudden stopping and starting are tell-tale signs of intoxication. This, combined with the other evidence described here, may lead to an arrest for a DWI.
Should I Refuse Field Sobriety Tests if I’m Pulled Over for Drunk Driving in New Jersey?
The final question is whether you should actually take the test or not. In general, you should always ask for your lawyer to be present before talking to the police or giving them any information, as anything you give up will be used against you. Because of this, it makes sense just to say no to field sobriety tests, as any mistakes or failures could be misconstrued as evidence that you were drunk.
However, it might not be fatal to your case to take the tests in some situations.
First, if you are completely sober and know you can do the tests – and that a breathalyzer will show no alcohol even if you are arrested – it might help shut down the officer’s suspicion and end the case right there.
Second, if the tests are performed incorrectly by the officer, then we might be able to get them thrown out as evidence against you anyway.
If you have a disability or some other good excuse to say no to the tests without drawing backlash from the officer, it is usually best to just say no.
Call Our NJ DWI Defense Lawyers for a Free Case Review Today
Call (609) 418-4537 for a free case evaluation with Lombardo Law Group’s Haddonfield, NJ DWI defense lawyers today.
