If you are accused of any crime in the United States of America, it is not your responsibility to help your accuser prove that you have committed that crime or to help your accuser gather evidence that will help him prove you have committed that crime.
The 5th Amendment of the United States Constitution protects U.S. Citizens from having to incriminate themselves. In any criminal matter, you are innocent until proven guilty.
It is not incumbent upon you to help the police or the state of Texas prove that you have committed a crime…any crime…even driving while intoxicated.
If you are driving a motor vehicle or boat, and a police officer stops you and accuses you of a crime, you are under no compulsion to help that police officer prove ANYTHING. It is not your duty to help the police prove that you have committed a crime.
In fact, it is the exact opposite. You have the right to remain silent. The burden of proof is completely on the state and you are not obligated to help them form a case against you.
Before we go any further in this discussion, you need to recognize that there is a difference between providing a breath or blood sample, and taking a field sobriety test.
Giving a breath or blood sample to the police will involve you either blowing into a breathalyzer or allowing some medical personell to draw a blood sample from you.
Performing a field sobriety test will involve you allowing the police officer to put you through some kind of physical test, like following a pen with your eyes, or standing on one foot, or walking an imaginary line, or something similar.
You have the right to refuse a breathalyzer test. You have the right to refuse to give a blood sample. You have the right to refuse any field sobriety test. And most lawyers will advise you to refuse all of the above.
There is a civil penalty (license suspension) for refusing to take a breathalyzer test or give a blood sample. There is no penalty for refusing to take a field sobriety test.
Rule No. 1: Don’t Drink and Drive
Do not consume any amount of alcoholic beverage and/or impairing drugs and operate a motor vehicle of any kind.
A Hypothetical Situation
Let’s imagine a quick hypothetical situation. Pretend that you are walking down F.M. 1960 at 2:47 AM and you get stopped by a police officer.
Police: Where are you coming from?
You: The gas station.
What you don’t realize is that you fit the description of a suspect who has just robbed the gas station.
Police: Have you ever robbed a gas station before?
You: Yes, I robbed one in Montana back in 1987.
Police: Your under arrest for robbing the gas station down the road.
You have just helped the police convince the jury that you robbed the gas station.
Why Lawyers Advise You Not to Take a Breathalyzer Test
I think the main reason that lawyers advise you not to take a breathalyzer test or submit yourself to any kind of blood alcohol test, or any other form of field sobriety test is because no lawyer would ever advise you to help the police prove that you are guilty.
That advice would run completely counter to everything a lawyer is taught in law school and to the entire premise that the United States Legal System is built upon. In the U.S. A., a person accused of a crime is innocent until proven guilty and the burden is on the state to prove that the accused is guilty. The burden is not on the accused to prove that they are innocent.
What is the Penalty for Refusing to Take A Breathalyzer Test or Give a Blood Sample?
The reality is that if you are being asked to take a breathalyzer test, you are probably going to be arrested for DWI anyway. And at this point, your main concern is to avoid a criminal conviction of DWI.
There is a chance that once you refuse the breathalyzer test, the officer will obtain a warrant to obtain a blood sample from you. He may not do that, so most lawyers still advise you not to blow.
Once you refuse to blow, the officer will place you under arrest, confiscate your license, and issue you a yellow piece of paper that acts as your temporary license and gives you a notice of suspension. There is a civil penalty for refusing to take a breathalyzer test or refusing to give a blood sample. There is an implied contract between you and the Texas Department of Public Safety that in order to avail yourself of the privilege of driving in Texas, you will voluntarily submit to a breathalyzer test or give a blood sample when asked by a police officer.
The civil penalty that you will incur for refusing to honor the implied contract is that your license will be suspended.
However, at this point, you are trying to avoid a criminal conviction of driving while intoxicated, which is a much greater penalty then having your license suspended by the Texas Department of Public Safety.
Should You Take a Field Sobriety Test?
I am not a police officer, so everything I am about to type is simply my best guess about why the police ask you to take a breathalyzer, blood test, or any other field sobriety test. My guess is that the officer is asking you to take those tests so that he can prove you are driving while intoxicated and take you to jail.
My guess is that most police officers who are tasked with finding drunk drivers do not take the view that they need to go out and prove that drivers are sober. My guess is that a police officer who asks you to take such as test is not testing you because he wants to prove that you have no alcohol in your system. I could be wrong.
Typically, a person will get pulled over because they have done something to arouse the suspicion of the police, like, having a tail light out, or speeding, or failing to signal a lane change. Then the officer thinks he smells alcohol, or he believes you are acting the way a drunk person might act, or maybe he thinks your skin is flushed or you eyes look strange. This leads him to suspect that you have been drinking. So now the officer asks you to get out of your car and do a field sobriety test.
You need to understand what is going on here. At this point, the police suspect that you are committing a crime, and now they are asking you to voluntarily help them confirm that suspicion. That is crazy!
Before I go any further, I want to tell you that the absolute best policy is to have zero alcohol before driving a car.
However, most defense lawyers are likely to advise you that if you are alleged to have committed any crime, the last thing you want to do is give the police any kind of information that corroborates that suspicion.
Which is exactly the purpose of a field sobriety test. In effect, the police are saying, “I suspect you of committing the crime of driving while intoxicated, and now I want you to voluntarily take this test to help me prove that suspicion.” And this is probably why most lawyers are likely to advise you to refuse to take any kind of field sobriety test. Why would you ever voluntarily help the police build a case against you?
What Should You Do If The Police Accuse You of Driving While Intoxicated?
Anybody who is accused of any crime by the police should do absolutely nothing. You should not take any tests, you should not make any statements, you should ask to speak to your lawyer and turn into a mute.
If an officer accused me of driving while intoxicated and then asked me if I had anything to drink, I would never be dishonest, and I would say, “I would like to contact my attorney before answering any of your questions.”
If the officer asks me to get out of the car and perform a field sobriety test, I would say, “I respectfully refuse to take any field sobriety test.”
Of course at that point, the officer is most likely going to arrest you on suspicion of driving while intoxicated, but he likely would have arrested you for same anyway.
There are 3 Common Field Sobriety Tests, and each of them have flaws that can easily help you to be convicted of driving while intoxicated.
The Eye Test
The officer will wave a pen or a finger in front of your face and ask you to follow the object with your eyes. He is looking for your eyes to move in a jerky motion as they follow the object. This is known as nystagmus.
The police officer is not an eye doctor / optometrist. There are many different causes of nystagmus, other than the consumption of alcohol. Some people exhibit nystagmus simply because of their genetics.
Additionally, while a large quantity of alcohol in your body will cause nystagmus, an impairing quantity, it is also true that just about any level of alcohol in your body will cause some degree of nystagmus, even a level of alcohol less than 0.08. And the officer is not an eye doctor. And it is true that some level of alcohol is perfectly legal to be in your system while you are driving.
Why would you take this test? What are the chances that you are going to pass this test, even if you have had no alcohol? And guess who gets to decide whether you pass or fail the test. That’s right, your accuser gets to decide if you have passed the eye test. The police officer who has accused you of driving while intoxicated, and who is not an eye doctor, gets to decide whether you pass the eye test which decides whether he wrong or right.
The Imaginary Line Test
There you are standing on the side of a busy road, in the middle of the night. Cars are whizzing by you. An man in a costume with a gun, who has the power to completely ruin your life, pretends to paint an imaginary line on the road and tells you to walk that imaginary line so that he can decide if you are intoxicated.
Guess who gets to decide whether you walked his imaginary line in a way that convinces him that you are not drunk. Your accuser gets to decide if you walked his imaginary line properly or not.
Why would you ever take this test?
The Stand on One Foot Test
Once again, a man in a costume with a gun, who has the power to completely ruin your life, asks you, in the middle of the night, on a busy highway, to stand on one foot, put your head back, and perform some mental math out loud.
Then he gets to decide if you passed his test. And if he decides that you do pass his test, then he has to admit that he was wrong about his professional assessment of your intoxication. Do you imagine that you are going to pass this test? Then why take it?
Lose-Lose Field Sobriety Tests
If you fail any of these tests, you are going to jail. So if you have complete certainty, not in your ability to pass these tests, but in the knowledge that the officer is going to decide that you passed all of these tests, then maybe you should voluntarily take the tests. But I don’t think any defense attorney would ever advise you to do it.
In my opinion, these tests are crazy. Any failure of these tests is used as evidence that you are intoxicated, and not that perhaps these are difficult tests to pass, administered by a biased test taker, and given to a person who is frightened out of their mind.
What is The Penalty For Refusing Field Sobriety Tests?
You will likely be arrested because the officer has reasonable suspicion to suspect you are driving while intoxicated. This reasonable suspicion can’t be based on the fact that you refused to take a field sobriety test, but it can be based on other things like: the officer smells alcohol, the officer saw that your car was swerving, the officer believes that your speech is slurred, or whatever law you were violating when he pulled you over (like running a red light).
You are not required to incriminate yourself in the U.S.A., and this is why lawyers will tell you that there is no legal penalty for refusing to take a field sobriety test. In other words, if you have been pulled over, and the officer has reasonable suspicion to believe that you are driving while intoxicated, you are likely going to jail whether you take a field sobriety test or not.
If the officer smells alcohol on your breath, after pulling you over while you were swerving between lanes, do you imagine that if you somehow manage to pass a field sobriety test the officer is going to tell you to get back in your car and be on your merry way?
So what do you have to gain at that point by taking one? Nothing, at that point, it can only hurt you. The entire purpose of a police officer interacting with you is to obtain evidence to get a conviction for the thing he had probable cause to pull you over for. Why would you help the police gather that evidence?
Here is a video from an attorney in Maryland who does a good job of explaining this situation. Keep in mind that Texas State Law is different than Maryland State Law, but that both states follow the same U.S. Constitution.