Do I have the Right to Refuse a Field Sobriety Test (FST)?
If you are involved in a DUI investigation, one of the tests performed on site are a series of field sobriety tests (FST). California law does not require you to take a field sobriety test. Your participation is voluntary, and the results may be used to support the government’s case against you.
All drivers in California should have a basic understanding of what is involved in a field sobriety test. A standard field sobriety test consists of three parts:
- Horizontal gaze nystagmus. This portion of the test requires you to follow a moving object (often a pen or the police officer’s finger) with your eyes. If your eyes jerk while following the object, this can be an indication of being under the influence of alcohol, drugs or both.
- Walk-and-turn.This test requires you to walk forward, heel-to-toe, for a designated number of steps.
- One-legged stand.In this test, you must balance on one leg for a set amount of time.
While your performance of these tasks can be an indicator of your blood alcohol levels (BAC) level, there are many other factors that influence these tests. Some people will perform poorly while sober, and some people will perform satisfactorily after drinking. The law is clear in California that participation in field sobriety tests is voluntary.
The next question I am asked is will I be arrested if I refused to do the field sobriety test? The police can arrest you if they have probable cause that you are under the influence of alcohol, drugs, or both. But they do not need field sobriety test results to “prove” DUI.
California “Implied Consent Law”
Once you are under arrest, you must abide to California’s “Implied Consent” law. By driving in California, you are presumed to have consented to chemical testing for BAC if you are lawfully arrested for DUI. You may not refuse a post-arrest chemical test without serious legal consequences. After being placed under arrest, you may not refuse a chemical test without consequences, under California’s “implied consent” law. This applies even if you have submitted to a preliminary alcohol screening (PAS) test.
This rule traditionally applied to both breath and blood tests in California. But in 2016, the Supreme Court of the United States issued a decision called Birchfield v. North Dakota. Birchfield held that it is unconstitutional for a state to make it a crime to refuse a blood test without a lawful warrant.
The Birchfield case dealt with states that make it a separate crime to refuse a DUI blood test after arrest. California, in contrast, just imposes additional penalties on DUI defendants for chemical test refusals.
You do not have the legal right to refuse a post-arrest DUI chemical test on the basis that you think you have been wrongfully arrested. But if the court later finds that your traffic stop or arrest were in fact unlawful, the charge will be dismissed, even if the test is at or above the legal limit.
Consequences to Refusing a Chemical Test
First, if you are eventually convicted of DUI, you will face enhanced penalties for your chemical test refusal. Second, you will automatically lose your driver’s license for a period of time. If you go to trial and are convicted of a chemical refusal, you face enhanced penalties. These are in addition to and consecutive to your underlying sentence for a DUI.
The enhanced DUI chemical test refusal penalties are:
- for a first DUI offense, an additional 48 hours in county jail and a minimum nine-month California DUI school(in lieu of the three-month program for first-time DUIs that don’t involve refusals);
- for a second DUI offense within ten years, an additional 96 hours in county jail;
- for a third DUI offense within ten years, an additional 10 days in county jail; and
- for a fourth or subsequent DUI offense within ten years, an additional 18 days in county jail.
DUI is a felony in California
If there is an injury or death, the DUI will be filed as a felony. Three or more DUI or wet reckless convictions within the prior ten years or you have at least one prior felony DUI conviction will also result in a felony charge(s).
DUI and Driver’s License
If you refuse to submit to a DUI chemical test, the DMV will automatically suspend your license. You have ten days following your arrest to request a California DMV hearing to contest that suspension. Doing so may postpone your suspension, pending the outcome of the hearing.
If you prevail at this hearing, your license will not be suspended by the DMV. If, however, you are unsuccessful, your punishment will include:
- a one-year driver’s license suspension if it is your first DUI offense,
- a two-year license revocation if it is your second DUI offense within ten years, or
- a three-year license revocation if it is your third DUI offense within ten years.
There are nuances to a DUI stop and subsequent arrest that requires you to seek immediate legal advice. I always tell my clients, you are not only dealing with the prosecuting agency, the Department of Motor Vehicle and if applicable a professional licensing agency, since criminal convictions are reported to them. A comprehensive strategy is necessary to ensure a thorough investigation is conducted by your defense team. You can reach me directly at [email protected] or call my office at 310-601-7144.
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