DON’T PERFORM FIELD SOBRIETY TESTS
A motorist suspected by the police of driving under the influence of drugs or alcohol will be requested to perform a series of field sobriety tests. All drivers should understand that these tests are VOLUNTARY. That means you don’t have to do them. YOU SHOULD NEVER DO THESE FIELD TESTS. Never. Not for any reason. Ever. Most especially not if you’re sober (because then you should know better).
The reason is that these tests are “designed to fail.” People don’t pass these tests, they only fail them. Police will tell you they use these tests to determine whether or not a driver is capable of driving safely. That’s not true. They use these tests to support their decision to arrest you; to create “probable cause”, in legal parlance. We know this is true because almost nobody who performs these tests is ever allowed to drive away afterwards. In short, no matter how well you think you did on these tests, you can only fail them.
It is your right to refuse these “tests”. Police officers may pressure you to take them, but they cannot force you to do so and it is not against the law to do so. Let me be clear: the police officer will arrest you for DUI and he will take you to jail. But that was going to happen anyway. If the police officer arrests you on insufficient evidence your case may be thrown out, but at the very least you will not have given the prosecution more evidence on which to convict you.
Virginia has no standards for how these so-called “tests” must be administered. In most states, officers are trained to perform a set of three Standardized Field Sobriety Tests set forth by the National Highway Transportation Safety Administration (NHTSA). While the evidence that these NHTSA tests have any scientific relationship to intoxication is sketchy to begin with, they are at least standardized, meaning they can logically be compared to something. Virginia police, on the other hand, are not required to administer any particular set of tests. Virginia police frequently administer tests that are intentionally harder than the standardized NHTSA tests.
Worse, most Virginia judges routinely permit police officers to testify about these “tests” without requiring the prosecution to prove they have any relationship to whether or not the defendant is sober.
Worst of all is the roadside breath test (sometimes called a preliminary breath test). This tests is also voluntary and YOU SHOULD NEVER BLOW INTO IT. This small hand-held device is notoriously unreliable. In fact it is so unreliable that Virginia law does not permit the numerical result of the test to be used in a prosecution. Virginia police routinely tell defendants that the preliminary breath test “can’t be used against you in court”. This is (let’s not sugar-coat it) an out-and-out lie. The roadside breath test (and under certain circumstances, its numerical result) can and will be used against you in court. Don’t blow into it.