Field Sobriety Tests Are Not Mandatory in Pennsylvania; You Have a Right to Refuse.June 20, 2019
In Pennsylvania, citizens’ have substantial rights when pulled over while driving. One of a citizen’s most important rights is the right to remain silent, as explained by the American Civil Liberties Union (ACLU).
To make sure you properly protect your rights a police officer pulls you over, ask politely to speak to a lawyer. This action alone may not prevent an arrest, but in the event of an arrest, having legal representation will go a long way in assuring the protection of your post-arrest rights, which include the right:
- To a trial with legal representation
- To have an attorney review the state’s evidence
- To call witnesses
- To testify
- To make the state prove the accusations against you beyond a reasonable doubt
- To refuse a field sobriety test
Understanding the Law: What Is Within Your Rights
In December 2018, the York Daily Record reported that nearly one-million drivers in Pennsylvania have at least one DUI conviction.
Drivers operating under the influence of alcohol are a danger to themselves and others. In 2017, Pennsylvania State police made 19,963 arrests for driving under the influence (DUI) arrests in 2017. Police officers are hypervigilant in their effort to make the roadways safer, and they will use any number of reasons to stop a driver. Some of these include:
- Driving over the posted speed limit
- Failing to stay in a lane
- Crossing into opposing traffic
- Driving in a reckless manner
Once a police officer pulls a car over, he or she begins to develop a case against the driver. Police are looking for signs of impaired driving, such as slurred speech or the smell of alcohol on a driver’s breath.
Before arresting a driver for DUI, the officer will more than likely request a preliminary breath test and other field sobriety tests. These are diagnostic tools, designed to help the police determine whether to make an arrest.
Under Pennsylvania’s implied consent law, all drivers are required to submit to a blood, breath, or urine test if lawfully arrested by a police officer who has probable cause to believe that a driver is under the influence of alcohol or a controlled substance. A preliminary breath test and an official, post-arrest chemical breath test are very different. Pennsylvania’s implied consent law only applies to the official, post-arrest chemical tests. The law does mandate compliance with these tests, and any refusal will likely result in consequences.
The law does not require a driver to submit to any roadside field sobriety tests. The bottom line is, motorists risk serious penalties by refusing a chemical DUI test, but they risk nothing by declining a field sobriety test.
Common Field Sobriety Tests
Many drivers who are pulled over by the police on suspicion of DUI do not realize that they have the right to refuse to participate in field sobriety tests. Police officers often tell drivers that a preliminary alcohol screening (PAS) test is mandatory, but the law does not require anyone to submit to this type of breath test or any other roadside field sobriety tests. Regardless of what a police officer says, refusal is not in itself illegal.
The best advice for motorists who find themselves pulled over on suspicion of drinking is to request to speak to a lawyer. Once a driver employs this right, police are obligated to stop all questioning and information gathering procedures, including field sobriety tests.
The standard field sobriety tests developed by the National Highway Traffic Safety Administration (NHTSA) include:
- The horizontal gaze nystagmus, better known as “follow my finger”
- The walk-and-turn test
- The one-leg stand test
In addition to these three standard tests, the NHTSA’s student training manual lists various other techniques to determine whether a driver is intoxicated, including:
- Heel-to-toe test
- Finger-to-nose test
- Alphabet recitation
- Fingers-to-thumb test
Many variables separate from intoxication may result in an inability to complete these tests without difficulty. Failing is not a definitive indication of intoxication. Individuals with diagnosed medical conditions impacting vision, balance, coordination, or hearing may have problems with these field sobriety tests. Additionally, adverse weather conditions can also skew test results.
The Cons of Field Sobriety Tests
David J.Hanson, Ph.D., Professor Emeritus of Sociology of the State University of New York at Potsdam, has maintained a website on the subject of alcohol since 1997. His blog on field sobriety tests highlights some of the cons associated with these tests, including:
- Statistically, these tests are not reliable.
- Many sober people cannot pass these tests.
- The weather or roadside conditions can cause a driver to fail the test.
- A motorist’s physical condition, such as weight, injuries, and age, can affect the results of these tests.
- Many police officers make errors while administering these tests.
- The officer giving the tests may not be objective.
- Your results can be used against you at trial, under certain circumstances.
Field sobriety tests are not scientific. The officers administering these tests, for the most part, have usually already decided the stopped driver is impaired, which will likely affect the officer’s objectivity when conducting these tests.
The failure of a field sobriety test gives a police officer probable cause for an arrest. Once arrested, the driver would then have to submit to a chemical test or face the consequences of a refusal under implied consent laws. Usually, refusing a chemical test after an arrest will lead to a year-long revocation of one’s driver’s license.
Field Sobriety Tests Are Far From Perfect
The investigative reports from the Southern California Research Institute that the NHTSA used to standardize field sobriety tests contain some statistics concerning the accuracy of these tests. The NHTSA and the American Prosecutors Research Institute published a Resource Guide for Judges, Prosecutors, and Law Enforcement that reports that the horizontal gaze nystagmus test has an accuracy rate of 77 percent, and the walk and turn test an accuracy rate of 68 percent.
Furthermore, when officers used both tests together, they had an accuracy rate of 80 percent. Considering the consequences of a failed result, this level of inaccuracy is unacceptable. Inaccurate field sobriety tests can result in serious problems for completely sober drivers.
The Reasons Field Sobriety Tests Are Inaccurate
These tests are easily manipulated and are generally structured for failure. For example, if an officer stands with his or her back to oncoming traffic while administering the horizontal gaze nystagmus test, it’s extremely difficult for a driver to concentrate with cars moving in the background. Additionally, a driver who is overweight, out of shape, or has problems with vertigo, inner ear disorders, or arthritis will find it extremely difficult to stand on one foot for 30 seconds, as required by the one-leg stand test.
Don’t Trust Your Future to a Police Officer’s Subjective Judgment
If you were arrested and charged with DUI, or if you failed a field sobriety test during a traffic stop, you’ll need an experienced criminal defense attorney to defend against the charges. Call the Zeiger Firm today at (215) 546-0340, or contact us online.