Mike Bowser of Bowser Law discusses with John Maher your right to decline a field sobriety test. He explains that police officers will not mention this to you beforehand, and you may still face consequences for your actions but that it can help you in the long term.
John Maher: Hi, I’m John Maher and I’m here today with Mike Bowser, a board certified DUI defense lawyer practicing in Massachusetts and New Hampshire. Today we’re talking about the right to decline field sobriety tests. Welcome Mike.
Mike Bowser: Good morning.
John: Mike, in what cases does an individual have the right to decline a field sobriety test and are there penalties for doing so?
Mike: In my practice, in DUI defense in Massachusetts and New Hampshire, I can state unequivocally that my clients and drivers have the ability to refuse field sobriety testing in every case. What is interesting is that every OUI, DWI, arrest typically begins with a motor vehicle stop. There’s a brief interaction at the window where the officer is asking for license and registration: “Where you’re coming from? Where you going? Do you know that you were speeding? Have you been drinking?” Then inevitability the question is asked or the command is given, “please step from the vehicle.” The reason they’re asking you to step from the vehicle is to conduct a field sobriety test. What’s interesting in both states, Mass and New Hampshire, the officer does not have to inform you that you have a right to decline to participate in field sobriety testing. They don’t have to tell you that. But-
John: It’s not like a Miranda right where that you have the right to refuse –
Mike: Correct. It’s just “can you step from the vehicle? I want you to do a few tests for me.” Most people, raised to respect the police and to be cooperative and polite, they get out of the car and then they begin taking the battery of field sobriety testing. Things usually end badly because they’re very difficult to pass under the very best of circumstances. You do have a right to decline. You can say to an officer who’s asked you to step from the vehicle “why?” If he says, “Well I want you to take field sobriety testing,” you can respond, “I’m not taking those tests.” At that point, the officer needs to make a decision based on everything that he has at hand–odor of alcohol, whether he thinks your eyes are glassy, your speech is slurred, whether you’ve admitted to drinking. Quite frankly, you also have a right to not answer questions. Again, they [the police] don’t have to tell you that. If you decline to take field sobriety testing, the officer’s response very well may be at that time “step from the vehicle” “Why?” “Because I’m going to place you under arrest.”
Now at that point, in Mass and in New Hampshire, you do not have a right to decline or refuse to get out of the vehicle. Because at that point, if he’s instructed you that he is placing you under arrest, you would in fact be resisting arrest.
John: Okay.
Mike: If he tells you “you need to get out of the car because I am going to place you in custody, you’re under arrest,” you need to get out. You should always remain otherwise cooperative, polite, and quiet and not be making statements or talking.
John: What would be the best way that a person would go about declining a field sobriety test? Just to do what you said and basically be polite and say, “Thank you officer for telling me what you want me to do, but I’m going to refuse that test now.”
Mike: Sure. You can decline. How you decline is up to you. I would recommend that you do it in the shortest, most succinct fashion possible. If an officer is asking you to step from the vehicle, you can certainly ask him for what purpose or why do you want me to get out. If he says. “I want you to do field sobriety testing,” you can simply say, “I’m not doing them.” Officers know that–that you don’t have to. They don’t have to tell you that, but they know that they can’t force them upon you. It puts the ball back in the court of the police officer to make a decision. You don’t have to offer any other explanation beyond that. Now I can guarantee you, almost guarantee you, that if you refuse to participate in field sobriety testing, almost inevitability that officer’s going to reach the conclusion that he’s going to make the arrest regardless.
John: Because you’re hiding something?
Mike: Well no. You’re not cooperating with him. You’re not participating in his investigation. He’s going to make the arrest. Oftentimes they make the arrest because they think they have enough at that point anyway. What is interesting, the big, big distinction between Massachusetts and New Hampshire is if you refuse field sobriety testing or if you refuse chemical testing–breath, blood or urine testing–in New Hampshire, they can testify in court and use against you as consciousness of guilt the fact that you were offered a field test or chemical test and you refused.
In Massachusetts where one of, I think only, two jurisdictions in the country where if you are offered testing, field testing or breath testing, and you refuse the refusal is not admissible against you in court. In Massachusetts, if you refuse all testing they’re not allowed to testify before a judge or jury that you did that. Oftentimes the police are left with very little evidence in order to form an opinion that you were impaired and at least, they’re very limited in their ability to prove that case by proof beyond a reasonable doubt that you were, in fact, impaired if you’ve politely refused everything.
John: Now if you’ve refused in Massachusetts and then it does go to trial, you said it’s not admissible. Do they just have to tell the jury well we don’t have any field sobriety tests available?
Mike: Usually they don’t get to that point because the fact that they were offered and refused is not admissible. So they’re often left with a description of the driving, if the driver was speeding or weaving or they were over the fog line, I pulled them over, they appeared to have glassy eyes, their speech was a little bit slurred, there was an odor of alcohol. That might be it. That’s all they’re left with. What’s important to understand as well is if you do refuse testing and you are arrested and then you refuse chemical testing, there’s an administrative consequence through the Registry of Motor Vehicles or through the DMV in New Hampshire: you’re going to lose your license based on that refusal. That’s true in both states. There’s a consequence to refusing testing. But I think most lawyers would tell you that they prefer that you not participate in field sobriety testing and that you refuse chemical testing.
John: Okay. How should the individual handle that situation if the officer ends up becoming upset or agitated after you’ve declined the field sobriety tests?
Mike: It’s their show. They have the ability to place you under arrest. They certainly have that authority, that legal authority. If an officer tells you, “Listen, I want you to get out of the car, I’m putting you in custody,” you need to do just that. You do that without giving them any physical — you don’t get physical with them, you don’t get verbal with them, you cooperate, you remain quiet and polite and you’re going to be handcuffed and you’re going to be transported to a barracks or police station and you got to get through that process. And you should do so without making any statements or talking about the evening or the events. You do have to provide them certain information to get through that booking process, which is more biographical information and you’ll be released. The less said the better.
John: Okay. All right. Great information Mike. Thanks again for speaking with me today.
Mike: Sure.
John: For more information about Mike Bowser, visit Bowserlaw.com or call 888-526-9737.
