If you are stopped under suspicion of driving under the influence, law enforcement officers are obliged to investigate. That investigation includes asking you to consent to a field sobriety test. Are you required by law to comply? What happens if you refuse? What exactly is a field sobriety test, anyway?
Many people who are stopped for a DUI are unsure of what consequences might ensue if they refuse the tests involved. They may also wonder if there is a legitimate legal strategy in which non-compliance could potentially work in their favor. Below are some of the most common questions people have about whether or not they are allowed to refuse a field sobriety test in Arizona and what happens if they do.
When you are pulled over in Arizona, and a law enforcement officer suspects you might be driving under the influence of alcohol or drugs, they may ask you to submit to a field sobriety test. The three standard types of field sobriety tests are:
Horizontal Gaze Nystagmus (HGN)
The Horizontal Gaze Nystagmus (HGN) test is considered by many to be the most reliable of the three tests and typically involves a police officer asking the suspected driver to follow a pen or other object with their eyes. The term “nystagmus” refers to when a person’s eyes involuntarily jerk repeatedly when the eyes gaze to one side or another. Alcohol consumption can cause this reaction, but stress and fatigue can also make it worse.
An arresting officer administers the HGN test by first ensuring that all visual distractions, such as passing traffic lights and colorful emergency lights, are minimized by facing the suspect away from them. They might also ask the driver to remove their glasses. Then, they will typically tell the driver something similar to:
“I am now going to check your eyes.”
“Please follow the pen with your eyes while keeping your head perfectly still.”
“Do not stop following the pen with your eyes until I instruct you to stop.”
The police officer then holds the pen just above eye level and approximately 12 to 15 inches from the suspect’s nose. They gradually move the pen in front of the driver from side to side while observing their eyes. The officer is watching closely and counting any clues that might indicate intoxication, including jerky eye movements, the maximum deviation of nystagmus, and nystagmus occurring before 45 degrees.
Walk & Turn Test
The Walk & Turn test involves a police officer asking a driver to take nine steps forward in a straight line while touching their heel to their toe with each step. After nine steps, the driver must pivot on one foot and do the same thing in the opposite direction. An officer is looking for eight possible signs that you might be impaired:
One-Leg Stand Test
In a One-Leg Stand test, the officer asks the driver to stand on one foot. The foot must remain approximately six inches from the ground as the suspect counts by ones starting with one thousand (one thousand one, one thousand two, etc.). The suspect must continue standing on one foot and counting until instructed to stop, usually about 30 seconds. The officer looks for four potential signs of impairment:
In addition to these tests, some officers may choose to administer less common tests, such as reciting the alphabet backward. These types of tests, however, are rarely presented in court.
The National Highway Traffic Safety Administration (NHTSA) conducts studies to determine the three individual tests' accuracy that make up a field sobriety test. They found that law enforcement officers who administered the Horizontal Gaze Nystagmus test accurately identified intoxicated drivers 77 percent of the time. Officers who administered the Walk & Talk test where the subject exhibited at least two of the indicators were accurate approximately 79 percent of the time. And when officers conducted the One-Leg Stand test, they accurately identified an impaired driver 83 percent of the time.
In Arizona, you do not have to consent to a field sobriety test. You only need to give your name, proof of insurance, registration, and driver's license information. Any other questions asked of you can be met with a simple reply, "I have been advised not to answer." Always be polite and understand that anything you say can be used against you in a court of law.
Refusing a field sobriety test does not automatically trigger the suspension of your driver’s license (as it does when you refuse a chemical test). However, it will most often result in either the officer obtaining a search warrant or your arrest based on suspicion of driving under the influence. If your case goes to court, prosecutors will use your refusal against you, claiming the fact that you refused the test indicates that you feared failing it.
You will also most likely be asked to submit to a chemical test. The most common chemical tests involve a breathalyzer or testing your blood or urine. Unless the law enforcement officer has your expressed consent, a search warrant, or a valid exception that applies, you may also refuse a chemical test. You should understand, however, that Arizona is an “implied consent” state.
Arizona Revised Statute ARS 28-1321 outlines that, following an arrest, all drivers are subject to breathe and chemical testing. If you decline a blood, urine, or breathalyzer test, you face a mandatory one-year suspension of your driving privileges. According to the Arizona Motor Vehicle Department (MVD), suspension increases to two years if this is your second refusal within seven years (84 months).
Know that an officer violates your rights if they coerce you into taking a breath or chemical test involuntarily or without your consent.
Even if you agreed to a field sobriety test and failed, the results can be challenged in court if the officer administered the test improperly. Any deviation from the standard protocol in any of the three tests can potentially result in having the case thrown out. Additionally, the results may be challenged if the defendant has mental or physical disabilities, was tested in bad weather, or took the test while wearing obstructive shoes, such as high heels.
Other circumstances that could help your defense include:
A good defense attorney will thoroughly investigate all of these possibilities to provide you with the best outcome possible.
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