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When it comes to field sobriety tests (FSTs), there are several. Law enforcement will first check your eyes and then make you:

 

• balance on one leg and count out loud;

• walk a straight line heel-to-toe for nine steps and then turn and walk back;

• look up and estimate 30 seconds in your head;

• place your finger to your nose;

• count fingers on your hand; AND

• ask you to submit to a Preliminary Alcohol Screening (“PAS”) device.

 

There could be additional tests, but those are the most common. All of these tests are designed for the officer to form probable cause that you were under the influence while driving. This is the standard they need to legally arrest you.

 

Here are three important points about FSTs to keep in mind: First, understand that these tests may seem easy, but they are not—often times even for sober people.

 

Second, these tests are voluntary, but law enforcement will do no favors in explaining that to you. You can choose to perform all, some, or none of the tests. An officer cannot force you to do them. This includes the PAS test—the preliminary breath test administered before you are arrested. The PAS test is typically their last test to ultimately justify placing you under arrest. Officers are required to explain how this test is voluntary, which they sometimes fail to do. Even when officers explain it, most folks don’t understand or they’re too nervous to say no to the test. Importantly, if you do choose to refuse any or all of the tests, explain your position respectfully to the officer. Do not be argumentative, combative, or play games with the officer. This could get you arrested for violating Penal Code section 148 (Resisting Arrest or Causing Undue Delay to a Criminal Investigation). This charge can have worse consequences than a DUI.

 

Third and finally, even if you refuse all tests, there is likely still probable cause to arrest you. Remember the officer has OTHER evidence—he or she has potentially observed you:

 

• drive poorly;

• fumble while handing over your license and registration;

• have red and watery eyes;

• stagger while standing;

• smell of alcohol;

• etc.

 

In sum, refusing to do any tests or answer any questions will not prevent you from being arrested. Law enforcement is not going to take any chances with public safety at risk.

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