Should I Refuse the Field Sobriety Tests?

If you are stopped and the police smell alcohol or marijuana, then there’s a good chance you will be asked to step out of the car to perform field sobriety tests. If you fail one or more of these tests, then you will probably be arrested for OWI, or Operating While Intoxicated.

Michigan has not made it unlawful to refuse field sobriety tests, and if you refuse them, then the police will not be able to use any poor performance against you at trial.  Your attorney might also argue that without field sobriety tests the police lacked probable cause to make a lawful arrest. If successful, your case could actually be dismissed.  So there is a real benefit to refusing the field sobriety tests.

On the other hand, the prosecutor might argue that you refused the tests because you knew you’d fail them.  This is sometimes called a “consciousness of guilt.” Much has been written about consciousness of guilt arguments, and some courts believe that these arguments violate due process.  For example, if you exercise your constitutional right to remain silent, this should not later be used against you.  However, other courts have held that so long as you are advised ahead of time that your refusal will be used against you, then there is no due process violation.

In cases dealing with these very issues in the context of an intoxicated driving case[i] the defendant was stopped for an expired inspection sticker.  The officer observed three small wine bottles in the car and the defendant admitted drinking them that morning.  The officer asked the defendant to perform field sobriety tests, and the defendant said she would not comply with the request because she was old and had problems with her balance.  The officer then started to instruct her on the “Modified Rhomberg Test.”  The defendant started to comply, then stopped and told the officer either she did not want to or could not complete the task.  The defendant was then arrested for drunk driving.

Once the case got to court the attorney for the defendant argued, in part pursuant to a motion that was filed and in part in the context of a discussion relative to jury instructions, that “telling the jury it could infer consciousness of guilt from defendant stopping the exercise but not allowing the jury to consider any number of other reasons why she may have stopped the exercise would be highly prejudicial. During the argument on this motion, defense counsel also suggested that defendant was told to take the test, and was not given an opportunity to refuse.”

On appeal, it was also argued that evidence of the refusal should not be admitted to “show consciousness of guilt” when she was not advised that said refusal would be used against her at trial.  The court held that evidence defendant discontinued her participation in field-sobriety exercise was relevant; that the probative was not outweighed by its prejudicial effect; and that evidence that an individual refused to perform field-sobriety exercises is admissible without regard to whether police advised the individual that a refusal to perform the exercises could be admitted as evidence in court.

In a case[ii] that takes a similar approach, the defendant was stopped after a random plate check revealed an outstanding warrant.  The defendant refused to undergo field sobriety testing and refused a chemical test.  A warrant for blood was obtained, and almost three hours later the test came back at .05.  The defendant was charged with felony drunk driving.  A forensic toxicologist testified that given the passage of time and the rate at which alcohol is metabolized, the defendant’s blood was likely .065 within two hours after he stopped driving and possibly as high as .08.  throughout the trial, the prosecutor referenced and elicited testimony that the defendant refused the FSTs. In the closing argument, the prosecutor argued that the defendant refused to take the tests “because he was guilty and because he was trying to frustrate the investigation.” The jury convicted as charged.

The opinion framed the issue on appeal this way; “since the State cannot comment on a defendant’s refusal to waive a constitutional right, the dispositive issue is whether a defendant has a constitutional right to refuse to perform an FST.?”  The court held that FSTs are not searches.  Furthermore that “the/ information revealed from FSTs is not significantly different from the information that is revealed from ordinary observation of a suspect driver’s demeanor and gait, and individuals do not have a privacy interest in physical characteristics that are regularly exposed to the public.”  The court, in a closely split decision, held that a field sobriety test is a lawful seizure based on Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Consequently, the defendant did not have a constitutional right to refuse the FSTs. Consequently, the refusal evidence was admissible as was defendant’s argument that the refusal was evidence of consciousness of guilt.

Other courts in other states have found that these arguments relative to consciousness of guilt and refusal are improper, and Michigan has not yet ruled on this issue.  However, even if the prosecutor decides not to make a consciousness of guilt argument, the jury might infer that you decided not to take the field sobriety tests because you were intoxicated.  It’s sort of a darned if you do and darned if you don’t scenario.  Of course, the best way to avoid the dilemma altogether is to not drive while intoxicated.  Otherwise, you’ll need to decide at the roadside as to what you think is in your best interest.  If you’re not sure, then it’s always a good idea to seek legal advice.

[i] State v. Farrow, 144 A.3d 1036 (Vt. 2016)

[ii] State v. Mechem, 86 Wash.2d 128, 380 P.3d 414 (Washington En Banc decision (2016)