Rule #1: You do not have to take the field sobriety tests. You must take the portable breath test in the field, or be charged with an infraction. You MUST take the breath test (Datamaster) at the police station or be charged with an A misdemeanor, Refusal to Submit, which carries the same penalties as a DUI.


You do NOT have to submit to field sobriety tests, and I always recommend that you tell the police officer: Thank you, but I am not willing to take the field sobriety tests. I want to talk with my lawyer immediately.


Stand firm on both those things: No field tests, and a request to speak with counsel


If you take field sobriety tests, this is a quick analysis:


All the time I hear my clients say, ‘And I passed all those tests.’ Then, when I listen to the recordings, it becomes apparent that my client must have been thinking about another day far far in the past. In other words, no matter how hosed someone is, most everyone thinks they passed the tests.


In either instance, it isn’t important, and any lawyer who tells you otherwise is flat wrong. In the many many cases I’ve defended, there have been only a tiny number of instances in which a court or DMV administrative hearing officer hasn’t sided with the cop when he says a DUI arrestee failed such and such field sobriety test. Yes, I can pick and poke and get the cop to admit that my client might have passed this one, and maybe he only had four clues instead of six on that one … but probable cause to arrest is a low standard, and a court or admin officer isn’t going to second guess the cop.


The sole exceptions are either when someone blows well below the limit, or when it’s a Refusal case when someone doesn’t blow. But again, those exceptions are extremely rare.


It is my firm practice, of course, to review all the evidence, including performance on field sobriety tests … but DUIs rise and fall primarily on other technical issues, not the field sobriety tests.


The only time field sobriety tests can make a significant difference is when a person refuses to perform any of the field sobriety tests.