Are DUI Field Sobriety Tests Voluntary?

The short answer is yes.  The longer answer is yes, with some clarifications.

According to the law, you do not need to submit to a field sobriety test.  The standardized field sobriety tests usually are:

• The Walk and Turn
• The One Leg Stand
• The Horizontal Gaze Nystagmus
• The Rhomberg Balance Test
• The Preliminary Alcohol Screening (PAS) Breath Device Test

Some others that are given are:

• The finger to nose test
• The count to 100 test (forwards or backwards)
• The recite the alphabet backwards test
• The touch your toes test
• The fingertips test

None of these last few are actually standardized tests, and are completely subjective.

Field sobriety tests are developed to see how many cues of intoxication are present, to see if a person might be above a .08%.  They are not conclusive proof that a person is above a .08% blood alcohol level, but are used to justify a breath or blood evidentiary test.

Any of the above tests you can politely refuse.  However, as a condition of your license, if you are given an evidentiary test, usually at the police station or a jail or a hospital, which means blood, urine, or breath, then you DO have to submit to that, or lose your license through the DMV for one year.

So, you don’t have to do any sobriety tests.  But evidentiary tests you can also refuse, but the stakes are higher for doing so.  

Always be polite and respectful.  Keep in mind that a police officer can put you in jail, and you want things to go as smoothly as possible.  For blood tests, under the more recent McNeely decision, you can also insist on a warrant, and a search warrant would have to be obtained before you give blood or blood is obtained.

Refusing tests is the smart thing to do from a defense perspective.  The tests are only used to prosecute you, and since they are completely voluntary, there is no need to give the prosecution more evidence to prosecute your DUI case.

If you have any questions for an Orange County DUI Attorney, call us or contact the firm, anytime.  We are here to help.