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Short answer: no.
Why? You may provide incriminating evidence you do not need to give. Such as this.
Won’t I come off as a jerk by not doing what the cops tell me to? No. You can still be cooperative without being incriminating. Just politely decline to do the tests. The police cannot force you to perform field sobriety testing.[1]
If I refuse to perform field sobriety tests, what will happen next? At that point, some officers will ask you to take a preliminary screening test, otherwise known as a PBT, or preliminary breath test.[2] If you refuse that test, the officer will arrest you on suspicion of DWI. Opinions vary about whether you should take the PBT. In circumstances where you believe you may be well under the legal limit, then taking the test may save yourself a trip to the police station. In situations where you believe you are close to, or over, .08, then blowing into the PBT may be incriminating.
Field sobriety tests can be difficult for people to perform, even if they are sober. If a person is more than fifty pounds overweight, the National Highway Traffic and Safety Administration (NHTSA) recommends officers do not administer coordination field sobriety tests. Other factors, besides being under the influence of alcohol or drugs, can affect your performance on the tests, such as the bitter Minnesota cold, strong winds, uneven or gravel roadways, prior injuries, etc. Not to mention the tests are often done in a highly stressful situation with officers sometimes giving instructions very quickly.
The officer may already have sufficient evidence to support a DWI by your driving conduct, odor of alcoholic beverage, and speech. There is no need to bolster the prosecution’s case by performing tests you are not required to take.
In Minnesota, the most important test in a DWI case is the evidentiary test the cops ask for after you are arrested. Upon arrest, the officer is then required to read you the Minnesota Implied Consent Advisory, which includes asking whether you wish to consult with an attorney. After being given that opportunity, the officer will ask you whether you wish to submit to a breath, blood, or urine test. This is the most important test, because it is the one the prosecution can use in court as evidence about whether you tested over the legal limit. In Minnesota, if you refuse that test, then you will be charged with a DWI Test Refusal.[3]
In short, there is no need to perform field sobriety tests if asked. You can politely decline and ask to take the PBT if you believe you are well under the legal limit. There is not much harm if you decline to take the PBT, or if the officer does not even offer it upon your refusal of field sobriety tests. Just know that you will be arrested on suspicion of DWI, transported to the police station and asked to take another test of your breath, blood or urine.[4] That is the most important test to decide whether to take. Most importantly, you have the right to talk to an attorney before making that decision.
Robert H. Ambrose is a criminal defense lawyer in Minneapolis. The American Institute of DUI / DWI Attorneys named him a “Ten Best” DWI Attorney in Minnesota for Client Satisfaction. He also achieved Lead Counsel Rating Status in Drunk Driving Defense. For a free consult, please contact our office at 612-547-3199, ambroselegal@icloud.com, or by filling out a request form below.
[1] Standard field sobriety tests include the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), also known as the heel-to-toe test; and One-Leg Stand (OLS). The WAT and OLS are the most common coordination tests. Other tests often include reciting numbers, or the alphabet, backwards from one specific point to another; and touching your finger to the tip of your nose with your eyes closed.
[2] Many people include the PBT as a field sobriety test. If asked to perform field sobriety tests, you may politely tell the officer you will not take the tests except for the PBT. Some officers, however, will arrest you on suspicion of DWI if you say you refuse to take the field sobriety tests.
[3] In Minnesota, you have the right to an independent test after you submit to the officer’s test. You must clearly request to get an independent test. Then you must setup the test, which includes calling a company to come take a blood or urine sample from you, or having a family member or friend call, and pay for the test. It usually costs around $300 to $400, which includes analysis of the sample, but not expert testimony if needed.
[4] If you refuse to take the evidentiary breath test, then the officer is not required to ask you for an alternative test. If you refuse to take a blood or urine test, the officer must offer you an alternative evidentiary test.
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