By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
I’ve put a lot of time and thought into the answer and here’s why I’ve ultimately come to that conclusion: because experience tells me most of the time the officer has already made his decision to arrest you by the time he asks you to take the field sobriety tests. So no matter how well you do, you’re not being graded by a fair judge. You’re being graded by someone who already decided you’re going to jail.
If you’re reading this because you were arrested for DWI and you took the field sobriety tests — don’t feel bad at all about your decision. It’s a common one and there are plenty of decent reasons to submit to them. I just feel that in totality — the bad outweighs the good — and I’ve had a lot more time and experience with these cases than you had before you were asked to take the tests!
Most people who submit to field sobriety tests do so for two main reasons. First, is that they don’t know they have the right to refuse. In Texas, a person absolutely has the right to refuse. Second, the person thinks they’ll somehow show the officer that they’re okay to drive (again, what they don’t know is changing the officer’s mind is an impossible task).
Police play into the second reason very heavily. Remember, deception is a legitimate tool of law enforcement. Police officers have extremely honed skills at manipulating people to comply with their requests — even though the citizen has no obligation to do so. Field sobriety tests are a classic example. Here’s another example — ever been asked by a police officer that just pulled you over if you know why he pulled you over? It’s a game of “gotcha” and now you can’t fight the ticket if you answered! When an officer asks you to take the tests to see if “you’re okay to drive,” it may sound like he’s thinking of letting you go — but odds are that it just sounds that way! Only the officer really knows — and you have no way of knowing if he’s already called the tow truck for your car.
There are some down sides to refusing field sobriety tests too.
First is that you’re basically daring the officer to take you to jail. Most will take you up on it. You’re basically gambling that even if he takes you to jail that you’ll be able to beat the DWI in court by not providing any evidence knowing the State has the burden of proof.
Second is that you’re possibly making yourself the” bad guy” in front of the jury by not complying with the police. Most jurors ask themselves whether they would take the tests or not and even though most don’t have well informed opinions, most would take the tests… but ultimately, being the “bad-guy” can be overcome.
Third is that there’s always the chance that you’ve run into a policeman that hasn’t made up their mind. It’s probably the exception and not the rule — but it does happen.
Finally is that jurors put more stock in how you look generally on the video than how the officer testifies you did on the field sobriety tests. If you look good taking the tests but the officer says you still failed — jurors will doubt the officer’s testimony.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any situation, you should consult an attorney directly.