Why I Would Refuse to Perform Field Sobriety Tests
If you are in a situation where an officer is asking you to "perform " field sobriety tests, the officer already thinks you are intoxicated.
It is difficult to not do what a police officer asks you to do. We are taught as children to do what they say and obey. Many times, we may feel like we need to go along with an Officer's requests, only to suffer the consequences of a conviction later on. Even grown adults can and will be intimidated by police contact. Despite officers' use of power-imbalances and intimidation techniques, it is usually best practice to remain respectful to the officers.
If you are in a situation where an officer is asking you to "perform " field sobriety tests, the officer already thinks you are intoxicated (Legal Definition of Intoxicated: Not having the normal use of your mental and physical faculties due to alcohol, drug, or a combination) Note: The definition is important because not having our normal use of our faculties can be caused by a lot of things besides alcohol and drugs. The officer has been taught to get you to follow his directions and perform the Walk and Turn test, the One Leg Stand test, and the Horizontal Gaze Nystagmus test. Additionally, the officer may ask you a series of tricky questions. The officer will not tell you that you have the right to refuse these tests. The officer is looking for what he calls "clues of intoxication" to support his assumption and use later in a trial for his conclusion that you were intoxicated. The officers will not realistically consider any of the many innocent reasons or causes for the "clues" because all they need to arrest you for DWI is probable cause. When the case goes to trial, the officer and prosecutor want to win by getting a judge or jury to say "guilty".
The Walk and Turn and the One Leg Stand- Why refuse?
Most people cannot perform these tests perfectly, with or without alcohol or drugs in their system. Even if you do them perfectly, they might not be recorded properly by the officer, or the recording could be lost before trial. I've read a lot of police reports, and the audio/visual recording always looks better than what the officer prints in his or her written report.
If we are tired, exhausted, ill, nervous, scared, have bad knees, etc., we will not be perfect in the way we talk, respond to questions, or perform these sobriety tests. If I were asked to perform sobriety tests, it would be a judgment call at the time of the officer's request, but I would want to be sure I could knock them out of the park. I would have to be confident that nothing (innocent or not) would prevent me from doing them perfectly.
Horizontal Gaze Nystagmus (HGN) - Why refuse?
I was taught to "never say never", so I won't this time either, even though I want to say it. The officers are taught to look for an involuntary jerkiness in your eyeballs as you move them from side to side while following their pen or finger. You can't feel a nystagmus and wouldn't know if you have one regardless of what caused it. The police rarely record what your eyeballs are doing as they move from side to side and the officers are free to interpret, report, and testify any result they choose, and we have no real way to rebut it. Should you get lucky and perform the walking and balance tests perfectly, the prosecutor would blame that on your tolerance and say, "The eyes don't lie". And so, it is a No from me.
Whether you agree to perform these tests or not, most of the time you will be arrested regardless. So, when they say, "Ma'am/Sir- I'm going to have you do some tests to see if you are okay to drive," just be respectful and tell them No until you have had a chance to talk to a lawyer.