Drinking and driving: Should I submit to a field sobriety test?

Sobriety tests: What drivers need to know

If I've been drinking and get pulled over by a police officer, do I have to do the tests?

According to attorneys Joe Veenstra and David Pierce, you do not have to do the field sobriety tests. Please note that these opinions do not apply to people with a CDL – Commercial Driver’s License, who have more stringent laws. Field sobriety tests are normally done at the scene of the traffic stop (the “field”) unless it is dangerous to do so, and usually, the officer asks you to do some or all of the following tests: follow the pencil test, one-leg stand, walk and turn, recite the alphabet, or 30-second time test.

To conduct the field sobriety tests, an officer must have reasonable suspicion that you were driving while impaired as evidenced by your driving behavior. For example, stopping you for a burned-out headlight, other unusual driving like weaving, and then smelling alcohol or an admission of drinking upon talking with you, often would be sufficient for the officer to request that you do the field sobriety tests at the scene. But you do not have to do the field tests. If, based on these tests, the officer has probable cause to believe you violated OWI laws, they will likely ask you to provide a preliminary breath test (PBT) at the scene of the stop (blowing into a tube connected to a small device held by the officer which provides a quasi-scientific gauge of your breath alcohol level). Legally, you do not have to take any of these field sobriety tests, but if there are other indications of drinking and driving, the officer will likely handcuff you and bring you to the station or to the hospital for what are called “chemical” tests.

At the station or hospital, the officer will read you a somewhat confusing form called a “refusal” form, asking you to submit to one of the chemical tests. They will inform you that by driving on a public road, you have given "implied consent" to take one of the chemical tests for the presence of alcohol in your body and will ask if you consent to a breath test or blood draw. You should consent at this point. That is, if the police take you to the station to provide a breath test into a large machine, or if they take you to the hospital for a blood draw by a phlebotomist, you will be cited for refusal if you refuse to submit to those more scientific chemical tests. Both tests intend to measure your intoxication level.

In Wisconsin and most other states, if you fail this test, that is, if your blood or breath registers an alcohol level of .08 or greater (.08 grams per 210 liters of blood in your bloodstream), you will normally be cited for driving with a prohibited alcohol concentration. Wisconsin law does not allow you to contact an attorney prior to taking the test. In short, if they bring you to the station or hospital, unless there has been a horrible accident, you almost certainly should submit to take the breath or blood test. 

OWI violations can be costly

If you are proven to have been operating while intoxicated, you could pay a fine and costs of between $911.50 and $1,150.50, lose your license for up to nine months, be mandated to obtain and pay for an alcohol assessment, and could be required to get an ignition interlock on your vehicles. A second and third offense is a traffic crime, a misdemeanor that will put you in jail. A fourth offense or higher OWI is a felony that risks a prison sentence. Importantly, if you refuse to take the machine breath test at the station or submit to the blood draw at the hospital, are cited for refusal, and wish to fight that citation, you must challenge it in writing within 10 days of its issuance. You certainly should talk to an attorney immediately so they can protect your rights and prevent very serious consequences that arise out of the refusal. 

It is also worth noting that the officer might also test for THC or other substances in your blood. The law is such that “any detectable amount” in your blood while driving on a public highway is sufficient to prosecute for driving with THC in your blood, which has similar penalties to an OWI. Even if you smoked or ingested the THC much earlier and no longer feel under the influence, your blood will still retain a detectable amount for hours and even days later. You can be cited even if you smoked or used THC legally in Minnesota, Illinois or some other state where THC is legally sold. 

No matter what, if you are cited for Refusal, Operating While Intoxicated, Operating with a Prohibited Alcohol Concentration, or Operating with a Restricted Controlled Substance, you really should consult with an attorney immediately in order to protect your rights and get some good advice. 

Information provided by Joe Veenstra and David Pierce, criminal defense lawyers at Johns, Flaherty & Collins, SC, in La Crosse, Wisconsin. For more information on drunken driving laws, contact him at 608-784-5678.





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