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Field sobriety tests are voluntary

  • By The Newnan Times-Herald
  • |
  • Dec. 08, 2016 - 3:40 PM

As with every column on driving under the influence, or DUI, I would ask everyone to refrain from drinking or using drugs while driving. If you choose to drink, stay home or make sure that you have a designated driver. This will avoid being accused and/or arrested for DUI and make our community a safer place to live. 

I also believe that educating the public is important. Many DUI investigations and arrests are not like what is portrayed on television when the guy stumbles out of his car in an obviously inebriated state. Many cases are very close calls where every detail matters.

I have interviewed and represented several clients who have been accused of DUI. While circumstances are different from case to case, one thing needs to be known when any person is the subject of a DUI investigation. In Georgia, field sobriety tests are always voluntary.

While this is true, I would guess that 95 percent of my clients did not know that at the time of arrest.

Since sobriety tests are voluntary, a driver who does not want to participate must decline the officer’s request. The manner of declining is important. The driver should always be polite and treat the officer with respect. 

Remember, when an officer is conducting a DUI investigation, he or she is simply performing a duty as I am doing mine by educating the public on the law. These folks risk their lives every day to serve and protect the community. There is never a reason to be rude, arrogant, or confrontational if tests are declined or during any part of the investigation. 
Additionally, the officer and the driver will likely be on video for others to see and judge. 

Field Sobriety Tests were developed by police agencies to assist law enforcement officers in making roadside determinations as to whether a driver is under the influence of alcohol or drugs. Through the performance of these tests or evaluations, the officer subjectively determines how the motorist reacts to and performs the tests. 

Sobriety tests are commonly used by police officers because a driver’s alleged poor performance on field evaluations may provide the subjective legal justification an officer needs to arrest a person for impaired driving. The video of the defendant performing the tests may also become part of the proof used later to try to convict the person at trial.

There are three common tests that officers will ask the driver to perform. They are (1) the walk-and-turn test, (2) the one-leg-stand test, and (3) the horizontal-gaze nystagmus test, or follow the pen with your eyes.

Another test that should not be confused with the Intoxilyzer (the breath-testing machine back at the police station) is the portable breath-testing device, or “Alco-sensor.” Here are the differences:

Intoxilyzer – This is not a field sobriety test. When a person is arrested for DUI, the police officer will almost always read what is called the Implied Consent Notice to the driver. This is a bright orange card that outlines a person’s rights concerning the taking of a test of blood, breath, or urine. It is also a voluntary test, but unlike field sobriety test, a refusal can have negative consequences. 

Alco-sensor – This is a field sobriety test. This device can detect the presence of alcohol if it has been properly calibrated. It is small and always used at the scene of the stop. However, like other field tests, these devices used at the roadway are voluntary and can be politely declined.

As I said in the beginning, don’t drink and drive in the first place. But, also be aware of your rights, the law, and how to behave if accused of DUI. 

(Jason Swindle is a criminal-defense attorney and college professor in Carrollton.)