Interviewer: I wanted to touch on refusals again. If someone’s pulled over and asked to step out of the car and perform a series of exercises on the roadside, like touching your finger to your nose or following an officer’s pen or walking the line, those are called field sobriety tests? Can you refuse to undergo these tests?
Stuart: Yes. You can, and you probably should. Meaning in most cases the results are not going to help you. Most people think, oh, I’ll just do these and I’ll go on my way. Very few people who get pulled over for standard field sobriety test pass the test, and that stems from two reasons.
It Is Unlikely You Will Perform Well During the Field Sobriety Tests
One is the tests are not a good indicia of whether you are drunk or not or whether your ability to drive is impaired by alcohol. The second reason is they’re not performed correctly by the police officers. The example that I give is the finger-to-nose test. Most people, when they do it in my office, they say this is exactly what I did, see I passed.
The difference between a pass and a fail is touching your finger with what they consider the pad of the finger and the tip the finger, which is probably just three or four millimeters’ difference, and on a dark road for the police officer to see the difference is very difficult. Those are the kinds of problems that you have. It is almost guaranteed the officer is going to fail you for those tests.
Which Tests May You Be Asked to Perform?
Interviewer: What are the typical tests that the police request?
The HGN Test
Stuart: Normally, they emphasize the finger-to-nose test. They will do the HGN test, which is a horizontal gaze nystagmus test. The problem with that is that test should not be done on the side of the road where there are any kinds of stimuli to your eye that will take your eye away from what they’re doing. For example, the biggest distraction is flashing lights.
This test is usually administered on the side of the road, at night, where cars driving by are flashing lights. That will change the test outcome. The second thing is most police officers don’t turn off their overhead lights. So in the middle of a test, if the test is performed on the side of the road in perfect darkness and in a perfect environment, you still have the lights of the police car flashing in your eye. This test really should only be done by a health professional, by a doctor.
The Walk and Turn Test
Also, people will be asked to do a walk and turn test. They take nine steps forward and nine steps backward. The problem with that test also is that there’s never really a good line on the side of the road to do it by. Most people, when they’re pulled over, are very nervous and are not listening. Even if the officer gives you the instructions correctly and most of them skip the instructions, you probably won’t process it the same way on the side of the road, as you will somewhere else. Again, this is because you’re worried, you’ve just been pulled over and it’s a very difficult time. So even if you’re perfectly sober, there are problems with the tests themselves.
The Portable Breath Test
Interviewer: How about a preliminary Breathalyzer test? Do police officers here use a machine at the roadside to test your breath, or do they only do it at the police station?
Stuart: There is a PBT. Some officers have it and some don’t. The way you can usually tell is if the officer has it, he’s usually a DWI cop that’s looking for the overtime on the arrest. If a police officer just pulled somebody over because they were weaving and it looked like they were drunk and had to call somebody to administer those tests, that test is not admissible in New York as of now.
However, the rule is slightly changing. There are some courts that have allowed it, but it is still not a very accurate test. The Breathalyzer machine at the police stations has its own problems as well. That is probably a $50,000 machine and it is not accurate. To take a test on a portable one, and let’s say that we can do it with a machine that costs closer to a few thousand dollars, is not reliable either. In fact, it’s the same science they use that you can buy on a nine-dollar key chain to some extent. It doesn’t give you reading, it will just do a red or a green light indication.
Can You Refuse a Test Administered on the Portable Breath Machine?
Interviewer: Can you refuse the preliminary breath test without consequence?
Stuart: Normally, as I said, yes. If you are 100% sober and have not had anything to drink and you really think, let’s say, you’re not going to be nervous and you can do it, then you can take those. Or it is just as likely the officer sometimes won’t even ask you to take any of those tests. Normally, once they have taken the steps of administering one or more of those sobriety tests, they believe that there are some indicia or they smelled alcohol on your breath. They also may administer them if they saw your driving was erratic or whether they’re just looking, as I said, for the overtime. But normally, as I said, with those tests, the results are not going to be in your favor.