Many people call our office and describe the field tests that the officers had them perform prior to arrest. And while a majority are aware that they may refuse to submit to a breathalyzer, very few know that they may also refuse to perform the field sobriety tests. These tests, ranging from the alphabet, horizontal gaze nystagmus, nine-step walk and turn, and one leg stand, are often testified about in court by the police when describing why they formed their opinion that the defendant was impaired by alcohol. However, these tests cannot be forced upon an individual, and if a subject politely refuses to perform the tests, this refusal is not admissible in court. The best way to decline is to simply state, “My attorney says to never perform such tests.”
To do so means that the police will need to make their decision to charge based on evidence other than the evidence furnished by the subject. It may not result in a decision not to arrest, but the court case will usually look much better down the road.