DWI – Why Refuse Tests; Why Not


Most attorneys, at some point, typically during a happy hour, will get the following questions: “What do I do if I’ve been drinking and I get pulled over by the police? Can you tell me about the field sobriety tests? Should I take the breath test? Can they take my blood, or do I have the right to refuse?” If you’re unfamiliar with the practice of criminal law, it’s not always easy to know how to answer some of these seemingly simple questions. The answer given most often by those who frequent The Frank Crowley Courts Building, including prosecutors, is a resounding – refuse all tests!

Intoxicated is defined in Chapter 49 of The Texas Penal Code as, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more.”

The logic supporting this general, “refuse all tests” response is very simple. If, in fact, an individual has been drinking and the odor of an alcoholic beverage is detected, they will undoubtedly be asked to step out from their vehicle. Next, the officer will attempt to make a determination as to the driver’s current physical and mental state. The experienced criminal law practitioner will tell you there’s a high probability once asked to exit a vehicle during a DWI investigation that the driver is going to be placed under arrest. Performance on the field sobriety tests, whether successful or failed, is often given minor deference by the arresting officer.

Therefore, if the arrest for DWI is likely, why do anything to assist in the gathering of incriminating evidence? Thus, the response, refuse all tests!

Keep in mind, a police officer is making a decision whether or not to arrest, based on a probable cause determination. Judges and jurors wrestle with the facts and evidence in a case, attempting to determine whether or not the existing facts and evidence rise to the level of proof beyond a reasonable doubt, the highest standard of proof we have in our legal system.

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The Horizontal Gaze Nystagmus test, or as it is commonly called, “the squiggly eye test,” the One Leg Stand, and the Walk-and- Turn test are the three standardized field sobriety tests (SFSTs). These tests are labeled as standardized because they are supposed to be administered by law enforcement officers throughout the United States in accordance with specific guidelines published in the National Highway Traffic Safety Administration (NHTSA) Manual. The reality is, no two officers ever administer the tests alike and rarely are the tests given in exact accordance specified within the manual. Additionally, while these tests may seem harmless and easily conquered, the stress of the DWI investigation is typically enough to cause most to fail.

Almost without exception, all DWI arrests are captured on video; often offering a bird’s eye view of the field sobriety tests as they are conducted. The video can be a criminal defendant’s best friend, or it can be their worst enemy. While a few minor mistakes are often expected and easily explained as innocent behavior, multiple minor gaffes or missteps can add up quickly. Major flubs like disorientation, poor balance, slurred speech, mood swings (i.e., crying one minute, laughing the next), abusive language, etc., requires a lot of heavy lifting by a very talented defense attorney in order to explain them away.

By politely refusing to perform the standardized field sobriety tests, the government’s ability to offer evidence of an individual’s mental and physical faculties is greatly diminished. However, the issue remains: what about the driver’s breath or blood alcohol concentration?

One cannot be compelled to give a sample of their breath when asked to give a sample of their breath; however, a refusal to comply may result in a driver’s license suspension. Also, it should be noted, the United States Supreme Court, in Birchfield v. North Dakota, 136 S. Ct. 614 – 2015, cleared the way for states to make it a separate offense to refuse the breathalyzer. In contrast, blood draws can be compelled if a search warrant signed by a neutral magistrate or judge is obtained. The blood warrant, as it’s aptly named, is a powerful tool used by law enforcement more and more frequently. Where other evidence is lacking due to the arrestee’s refusal to submit to the SFSTs and his or her refusal to submit to a breath test, the blood warrant affords the officer one last opportunity to obtain evidence supporting their decision to arrest.

Refusing field sobriety tests combined with a polite attitude may not keep one from being arrested, but it may keep one from being convicted. Daniel Clancy

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