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Can I refuse to take field sobriety tests?
Unlike the chemical test, where refusal to submit may have serious consequences, in most states you are not legally required to take any FSTs.
The reality is that officers have usually made up their minds to arrest when they give the FSTs; and the tests simply provide additional evidence. The suspect inevitably "fails" the FST. However, officers are likely to testify that the FSTs were administered to help determine whether you were under the influence. This is because they don’t want to have to testify that during questioning, you were not free to leave (ie, “under arrest”). If you were under arrest, they would have been required to advise you of your Miranda rights even to ask you if you were drinking, and they don’t want to do that and remind people to shut up. So if the officer testifies that he asked you to do the FSTs because he was not sure you were under the influence, and you refuse the FSTs, that can build “reasonable doubt” into your case. The blood-alcohol test is another issue, of course.
Obviously if you appear drunk in a videotaped FST it will not impress the judge or jury. Thus, in most cases a polite refusal "until I speak with an attorney" may be the most appropriate choice. Since the “pass” or “fail” on the FSTs is purely subjective, with no published standards for “passing”, you have little chance of helping your situation by taking the FSTs.
(Updated August 30, 2007)
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