Every new client that is charged with Operating a Vehicle While Intoxicated shares a similar, sad, tale with me. Without fail, every client tells me about their stop and interaction with the police officer. Then I ask them the question: “Did you perform field sobriety tests?”
Folks, let me start by saying that you do not have to perform field sobriety tests. There, I said it. You can leave now unless you want to learn more.
The first thing to know about police is that they generally won’t do things unless they have lawful authority to do so. If you get arrested, it’s typically not because that officer is just in the mood to slap cuffs on someone. They have reasonable suspicion that you have committed a crime so they arrest you. Notice how they do not ask for permission to cuff you?
Pay attention to that. If police do not have the authority to do something, they will ask for your permission.
Will you submit to some field sobriety tests?
They’re asking you to submit because they cannot make you. Trust me, folks. If you were required to do something, they would tell you. For example, not long after you did your field sobriety tests you probably were read the implied consent law that told you if you refused to submit to a certified chemical breath test then your license would be suspended for a year. See the difference? You were told a real world consequence if you chose not to cooperate.
The same goes for searching your car or your body. If police have the authority to search, or at least think they have the authority, then they will simply search. But when an officer stops you, asks you some questions, and then asks if you mind if they search your car – it’s because the cannot search your car. Not until you give them consent.
Why does this matter? Why shouldn’t you submit to field sobriety tests? Two reasons.
- You don’t have to. That should be enough. Don’t do things you aren’t required to. Otherwise it’s an invasion of your privacy.
- YOU’RE GIVING THE POLICE EVIDENCE OF YOUR POTENTIAL INTOXICATION. I think that bears some attention, hence the capital letters.
That’s right. If a cop stops your and smells alcohol, that might be the only evidence they have that you’re driving while intoxicated. But then they get to personally witness you flop around, stumble, slur your words and generally perform tests that are difficult to perform while sober? Yep, you’re giving them the evidence needed to charge you.
SO WHAT SHOULD YOU DO?
Be polite. Give them your name and address. Just your basic identifying information. And then tell them you want your lawyer. It’s possible you may still be arrested at that point. It depends on what other evidence exists. But at least you are not giving them more!