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"I'd like you to perform some voluntary Field Sobriety Tests…"

That's what the officer tells you after he's asked you to step out of your car, but that's not all he wants. By this point, he's all but "decided" that you're impaired. While he may, in fact, decide after the Field Sobriety Tests (FSTs), that you're ok to drive, that's not why he wants you to do them. He's already building his case against you - which is that you've been driving drunk.

Most people don't know - or realize, until its too late - that you can refuse to perform FSTs in Washington State. When I meet with a potential client, one of the first things I ask is whether they performed the tests, whether the officer told them advised they were voluntary, and whether they believed they had the right to refuse. What they usually tell me is that they did perform them, the officer did say they were voluntary, and yet they did not really think they could refuse.

Police officers almost always tell the driver that the tests are voluntary. While this is not required by law, they must show that the driver consented to the tests, and the best policy is to use the word "voluntary" when asking the driver to consent to the tests. What they almost never tell the driver is that they have the right to refuse them, but that their refusal may be used against them. (This differs from the Implied Consent Warnings given prior to the breath test but that's another topic.)

If the driver refuses to do the FSTs it may be used against them later, if shown to be relevant to the charge. But it may not. It all depends on the circumstances. If it can be demonstrated that the officer by his conduct tried to "coerce" the driver into performing the tests, for instance, the court will likely suppress the refusal or even the test results themselves, if the person agreed performed them. This would be the case even if the officer did use the word "voluntary" - if the court finds coercion, then the word itself in that context is meaningless.

Also, if the driver (respectfully, of course) declines to answer any questions ("how much have you had to drink?") or perform any tests without first speaking to an attorney, his attorney may later argue that he did so on advice of counsel, and not because he believed it would provide evidence of his guilt. The prosecutor bears the burden to show that the driver's refusal is relevant; the odds are strong, however, that a judge will find that one's exercising their prerogative to refuse FSTs "on advice of counsel" is not relevant, and that the judge will exclude the refusal as evidence.

Drivers should always be polite and courteous to police officers. But that doesn't mean they should make the case against themselves easier. Respectfully exercising your privilege to refuse FSTs, particularly on advice of counsel, will very likely result in that evidence not being used against you. Even if a judge finds that your refusal is relevant (an attorney experienced with DUI issues is your best bet here), a refusal to perform FSTs is almost always better presented to a jury than potentially damaging test results (which are specifically designed to make you fail). In my experience as a prosecutor, I can tell you that juries often disregard the fact that the accused refused to perform FSTs, often commenting "if they had the right to refuse, and they exercise that right, why should that be held against them?" I have to admit that I thought hard about it at the time; I don't have to think about it now. Because I know it shouldn't.

A skilled and experienced DUI attorney will know how to best assess the facts of your particular situation and look for legal issues to ensure that you are provided the best defense. The DUI attorneys at Park Chenaur & Associates are skilled and experienced to do just that. Give us a call at 253-839-9440 to schedule a free consultation today.

Categories: DUI Defense

Posted By Dan Gerl on August 11, 2010 03:51 pm | Permalink 
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