Should You Take Roadside Sobriety Tests? Police Interaction, Part XVI
By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney
This is the sixteenth part in a series of posts about what legal obligations you have when you interact with the police.
You and your friends have been to a bar. You’ve had two drinks but you feel you are sober enough to drive. Suddenly, however, flashing lights strobe behind you. You pull over and the officer comes to the window. He asks you to get out of the car and begins explaining the roadside sobriety tests he wants you to perform.
You might wonder what to do.
BEST answer: Let the police officer know you refuse to do any roadside tests of any kind until you have an opportunity to speak to an attorney about the matter.
GOOD answer: Tell the police officer you will not do any roadside tests.
MEDIOCRE answer: Tell the police officer you cannot do the roadside tests for health reasons or some other true excuse.
WRONG reaction: Do your best to pass the tests.
The BEST, GOOD, and even MEDIOCRE answers all recognize that you should not take a roadside test of any kind. In modern policing, there are essentially four types of sobriety tests that are administered at the side of the road – the portable breath test (PBT), the Walk and Turn, the One-legged Stand (OLS) and the Horizontal Gaze Nystagmus (HGN). There are also a few other varieties which are not recognized in Ohio but sometimes are used. However, it does not matter what type of test it is or what is required to pass because the rule for dealing with this situation is simple – If you are asked to do a test and it is going to take place at the scene of the traffic stop, then you should refuse.
A common thought in this situation is something like this, “Well, I’ve only had two beers. I can probably pass this test. And if I pass the test, the officer will let me go and that will be better than being arrested, having my car towed, hiring an attorney, and etc.” The problem with this common line of thought is it relies on a false assumption. It assumes that the officer has not yet made up his mind as to whether or not you are drunk. The fact is, the officer pulled you over for a reason. He asked you to get out of the car for a reason. And now he is asking you to do the roadside tests for a reason. He already thinks you are drunk and he is almost certainly planning to arrest you no matter how you perform on the test.
In short, the WRONG reaction is wrong because when you take the test the officer is not really “testing” to see if you are drunk. He has already decided you are. What he is doing now is trying to collect evidence to give him an ironclad reason to arrest you and charge you with some species of driving while intoxicated (sometimes called DUI, DWI, OMVI, or OVI). Do not give it to him. There is no penalty under Ohio law for refusing to take a roadside test (whether it is a portable breath test or any of the various physical tests). Since there is no penalty for refusing, since you are probably getting arrested regardless of how you perform on any “tests,” and since poor performance will only hurt your case, you should refuse.
The final point worth noting here is it matters how you refuse the test. If you refuse and offer an excuse (like an injury which prevents you from walking heel-to-toe) then you will be limited in what you can later say in court. That is, if you think of a better reason (which is also true) later for not having taken the test, you may be stuck with the excuse you provided at the scene of the stop. It is also hard to think of a true excuse that would prevent you from participating in any physical test and also would prevent you from taking a portable breath test or having your eyes examined (for the purposes of the HGN test). Moreover, if you provide an excuse that turns out not to be true, that will look bad later. On the other hand, if you refuse and provide no excuse or explanation of any kind, you will be able to give thoughtful reasons later in court to explain your refusal. However, if you provide no reason at all, it will look like you are trying to hide the fact that you are drunk or, to use a legal term, “consciousness of guilt.” For this reason, the BEST answer is that you do not want to do the tests until you consult with an attorney. The officer is asking you to make a decision (whether or not to take the test) that impacts your legal rights. It is proper and reasonable to want legal advice before making that decision. Since the officer is not going to summon your attorney to the scene of the traffic stop, the end result is you will not have to take the test and you can explain your reluctance to take the test without looking guilty.
If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.