Field Sobriety Tests What To Do If You're Stopped For Drunk Driving

  1. What do you do if you're stopped under suspicion of DUI or DWI? What happens? What should you expect? How should you react? This article, the second in a three part series, will explain what you can expect if you're stopped by a police officer under suspicion of drinking and driving, how you should act, and the consequences of taking or refusing a sobriety test.

    Q: What do I do if I am stopped for suspicion of DUI or DWI?

    When a police officer stops someone under the suspicion that they are driving while impaired or under the influence, the driver may be asked to take a number of different tests to determine whether the driver’s abilities to operate the vehicle are impaired. You should be prepared to have your documentation ready, act politely, cooperate with the officer and don’t engage in unnecessary “friendly chit-chat” – you’re not simply going to walk away from this incident as you might from a minor traffic violation. While many advise against participating in these tests, this may not be the best response, especially if you know that you should be able to pass them – it is a call that should be made by you with good judgment and understanding of the consequences of non-participation.

    Q: What happens if I am stopped under suspicion of DUI or DWI?

    In the majority of circumstances, you will be asked to at least perform sobriety tests in order to determine whether your ability to drive was impaired due to alcohol, drugs or other factor. You may decline to take these tests although there are negative consequences, including the potential immediate loss of your driver’s license. These tests will typically include the following:
    • Field Sobriety Tests

      Several different physical and mental tests that easily be performed by law enforcement officers in the field of duty. These include the following tests
      • Penlight

        The police officer will position an object, such as a pen or penlight, approximately one foot from the driver’s head and move the object from side to side while observing the driver’s eyes. The officer looks for signs of involuntary facial ticks, jerking or trembling of the eyeball. These symptoms are usually indication of consumption of an intoxicant.
      • Walk and Turn

        The driver takes nine “heel to toe” steps in a straight line, turns around and performs the same back to the original position. The officer is seeking to determine whether the driver can maintain his/her balance while walking or turning, can follow instructions by stopping, starting, beginning on time and maintain a straight line.
      • Standing on One Leg

        The driver is told to stand with feet together, arms against the body at each side, and then raise one leg about six inches off the ground while counting beginning at a certain number until the police officer instructs the driver to stop.
      • Finger to Nose

        The driver is told to place feet together, standing straight with eyes closed, and bring the index finger of one hand to touch the tip of the driver’s nose. If the officer notices excessive body swaying, eyelid tremors, noticeable muscle tension or any other unusual symptom, the symptoms can be used as circumstantial evidence of a finding of intoxication.
      • Other Tests

        Clapping, counting backwards, saying the alphabet backwards, etc. Each test is seeking to establish whether the driver is alert and capable of performing these tests in a reasonably expected manner. Failure of these kinds of tests is usually an indication of impairment from the effects of alcohol, drugs or other factor.
    • Breathalyzer and Chemical Test

      The police offer may ask the driver to submit to a breath or chemical test for intoxication, each of which the driver may choose to decline (but this will usually bear serious consequences.) A portable device commonly called a “breathalyzer” will be used, which requires the driver to blow into the mouthpiece of the device. The Breathalyzer generally provides a reasonably accurate estimate of the driver’s BAC/BAL. The driver may also be asked to take a urine or blood test that is performed at a nearby hospital. These tests can most accurately pinpoint the exact BAC/BAL of the suspect. Most states will allow the suspect to choose which chemical test they care to take.

    Q: Must I submit myself to field and chemical tests? What is “implied consent”?

    No – you may voluntarily refuse field sobriety, breathalyzer and chemical tests but there are consequences. As of 2009 over 40 states have passed Administrative License Revocation (ALR) laws, which allow the arresting officer to immediately seize the driver’s license of those who fail or refuse to take a breath or chemical test. This automatic suspension of an operator’s driver’s license may occur even if that person is not convicted of DUI/DWI – in addition to enhancing penalties in the event of a DUI/DWI conviction.

    If a driver refuses to take any test when pulled over by police, most states allow evidence of this fact to be introduced during trial as an indication of guilt. The jury may also be instructed that they may draw a inference of guilt by from your action to refuse testing. As a result, one should certainly consider whether it is appropriate to refuse the request for testing when stopped under suspicion of DUI/DWI. If you’re quite certain that you are not in violation of law, it may be to your benefit to agree to a test.

    Most states that have enacted ALR laws also recognize the concept of “implied consent” – the assumption that every driver on the road has automatically consented to a test of breath, blood or urine when requested by law enforcement to determine charges of DUI or DWI. The reasoning behind this rule is that driving a motor vehicle constitutes a privilege to use the public roadways and drivers agree to comply with necessary tests in order to ensure public safety.
    DUI & DWI Law:
    Implied Consent

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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