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Refusing the Field Sobriety and Portable Breath Tests in Virginia

Below is an excerpt from an interview with experienced Virginia DUI lawyer Thomas Soldan.

DUI Stop: After the Field Sobriety Tests

Thomas SoldanVirginia Sobriety Test Refusal: After the field sobriety tests are administered or declined, and you do have the absolute right to decline, and after a portable breath test (PBT) is administered or declined, the officer has an important decision to make. That’s called the arrest decision. Based on all the factors, including field sobriety, driving behavior, and the officer’s observations, the arrest decision is whether or not the officer feels that they have probable cause to arrest the driver for DUI. If they feel they do, then they arrest them. At that point, they tell the person they’re under arrest, they place them in handcuffs, and they take them to the police station. The person typically wouldn’t be put in a jail cell at that point, but they are placed in custody and they are typically taken to the breath room for further testing.

Consequences for Refusing To Participate in Field Sobriety Tests

Thomas Soldan: The person who is being accused of DUI should be aware that if they refuse to do the requested field sobriety tests, there is a chance that at the scene their refusal may be used against them in determining whether or not there is probable cause to make the arrest. The law enforcement officer may weigh their refusal to submit to any testing against them at that time; however, it does not determine their ultimate guilt or innocence. When it comes for the court date, that decision to refuse to perform field sobriety tests does not heighten the potential penalties. It does not put any kind of evidentiary weight against them. These tests are viewed constitutionally as being completely voluntary. If a person is not 100% comfortable performing field sobriety tests, they should absolutely exercise that right and refuse them.

Consequences for Refusing a Portable Breath Test

Thomas Soldan: We’re moving on to the “non-standardized” field sobriety tests. We’re starting to talk about the portable breath test, or the PBT, which is the breath test that is given in the field. Oftentimes, in the field, the officer says, “Sir/Ma’am, will you please blow into this? I want to check on whether or not you’ve had too much to drink.” That is a test that a person has the absolute right to refuse. There is no additional charge for refusing to do a breath test in the field. You’re absolutely allowed to do that. If you do take a portable breath test, the officer might let you know that the test is not admissible as evidence in a court of law, and that is true in some respects. The portable breath test cannot be used against you in the guilt or innocence phase, meaning if your case goes to trial and a portable breath test was administrated, the officer cannot testify as to what the results of that test were for the purposes of establishing whether or not you’re guilty of the offense beyond reasonable doubt. However, those results can be used against you for preliminary hearings. Those preliminary hearings may be either a preliminary hearing in a felony case or a pretrial hearing, such as a motion to suppress or a challenge to probable cause to make the arrest. If the defense says that the officer did not have probable cause to arrest the person for DUI and the prosecution is challenging that through a pretrial action, the officer can absolutely mention the PBT and the results. When the officer says to the person in the field that the results of the PBT are not admissible, that’s true in a sense. In another sense, it’s not true and absolutely can be used against you.

Health Problems and the Field Sobriety Tests

Thomas Soldan: One thing that is often overlooked by a person who has been accused of DUI and has performed a field sobriety test is that they have the right to refuse the field sobriety tests, particularly when they’re physically uncomfortable doing it. Most well-trained officers are going to ask the person if they have any physical limitations or impairments that would prevent them from doing the tests. The reason they ask that is so that an attorney cannot come back and claim that they were physically unable to do the test and that’s the reason why they failed. I want to find out whether or not the officer asked them the baseline questions about their health before they did the field sobriety tests. I also ask the person whether or not they told the officer about any physical limitations. It’s very common that someone is nervous and frightened when they are asked to do field sobriety tests and they might be uncomfortable talking about their health problems. They might feel like they have to do the tests or else something bad is going to happen to them, so they rush through and do them. That’s the worst thing a person can do in those situations. The accused should tell the officer if they have any physical limitations that that make them uncomfortable doing any field sobriety tests and the officer should understand. With the nine-step walk-and-turn test, I want to know if the person has had any balance or equilibrium issues, any history of concussions, if the nature of their stop was an accident, and also if they have any foot, ankle, hip, or knee injuries. All of those factors can affect the person’s ability to perform appropriately on the nine-step walk and turn test.

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