The most common misconception about Field sobriety tests is that people have to do them when the police officer asks, which they don’t. Along with that misconception is the one in which people think they will be able to do very well on the test and pass, whereas such a thing is very unlikely; even one small mistake on one test can result in an arrest and can be used against you at trial.
Too often, a client comes into my office and tells me they did a really good job on the Walk and Turn test, because they were pretty balanced and they didn’t stumble, but I know better; I know they didn’t do it perfectly and that we will have to deal with it at trial.
The good news is, the officers operate under several misconceptions as well. Quite often, I find that the officer believes they gave the field sobriety test instructions absolutely perfectly and that my client understood them absolutely perfectly and that nothing would get in the way of that person doing the test correctly. However, quite often the defendant has a serious misunderstanding of the instructions, and the police officers are either naïve enough to think there are no misunderstandings, or they just do not care because it does not help them.
What Do Clients Usually Think About Their Own Performance?
Most people who come into my office are not super intoxicated because they are less than 0.15 percent blood alcohol content and don’t believe they were acting particularly drunk. They tell me that they did quite well on the field sobriety tests and they expect that when they get to court they will actually look good. Of course, we tell the client the truth and we actually try our best to keep those field sobriety tests from coming into evidence.
One way we do that is by showing that the officer made it seem as though the person had no choice but to take the tests and that it wasn’t consensual. Quite often we can have all those field sobriety tests thrown out simply because police made the defendant feels like they had literally no choice.
Do I Have to Take the Standardized Field Sobriety Tests and The Preliminary Breathalyzer?
The preliminary breathalyzer is almost always offered in Virginia, although it is just as optional as the field sobriety tests, so the person can refuse to do either. Many people believe that blowing a low BAC or doing well on the field sobriety tests might get them out of trouble, but they won’t; by the time the officer asks you to do either, they have usually already made the decision to arrest you, and any information he collects will be used against you at trial.
What If I Refuse The Breathalyzer?
It’s perfectly fine to refuse the preliminary breath test that is taken on street, although the one that is taken at the station is required; refusing to take that one can bring another charge with some fairly stiff penalties. Given the choice, you should always refuse the preliminary breath test and take a breath test at the police station. Many people get this backward and do the opposite, which they should not.
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