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Should I take Field Sobriety Tests given new case law in Washington State?

Posted by Nathan Webb | Apr 18, 2014 | 0 Comments

I'm always asked whether someone should (or more commonly should have) take field sobriety tests when asked.  My common answer is no!  BEWARE however, that a recent Washington State Court of Appeals ruling (State v. Mecham) authorizes a prosecutor to inform a jury that "refusing" these tests can infer a guilty conscious.  This recent ruling is absolute crap!  These justices have essentially taken away the constitution from those accused of DUI.

Knowing now that a prosecutor may seek to introduce the refusal of this "voluntary" test as evidence of guilt, you can either attempt these subjective feats of balance and live with the results (which were probably not recorded leaving the officer carte blanche to elaborate on the results) or do the following:

Politely decline but MAKE SURE you state a reason for declining the tests, some examples would be: (1) a prior or current injury, (2) I was advised to do so by an attorney, (3) if you aren't going to record them I don't want to take them because you could say I "failed" when I didn't, (4) I've been advised they are impossible to pass, they are subjective, and I don't believe I am guilty but I am declining these tests.

It is truly unbelievable that the Court of Appeals would take such an inherently trite position concerning refusal evidence.  I mean think about it, a cop pulls you over and says "hey, you want to take these voluntary tests."  You hear voluntary and think, well if I don't have to I won't and then a prosecutor can tell a potential jury that exercise of your refusal is consciousness of guilt.  What a contradiction!!!  The cop never told you that it would be used against you if you didn't take them, only that it was voluntary.  How ridiculous.  So again, DO NOT take these tests, but always tell the cop, "I don't believe I am guilty of anything, but I am simply not going to subject myself to subjective tests." Inform the officer you are not refusing because you don't think you could pass them but that these tests are very subjective and you have been advised not to take them.  Tell the officer you do not believe you are guilty of anything but can't subject yourself to a subjective determination of test that are designed to make you fail.

Now, I have heard of one instance wherein a friend of mine told me he took them (against my advice) and was let go.  That result is an anomaly in my experience.  If you have had anything to drink, or smoked marijuana recently, I would advise you skip these tests.  Why?  Well, the way in which these tests are administered are much different than how they were "standardized."  What I mean by that is the National Highway Traffic Safety Administration (NHTSA) conducted three tests (Horizontal Gaze Nystagmus, One Leg Stand and Walk and Turn) to determine the accuracy of predicting a BAC result based upon the clues observed and reached conclusions with percentages related to accuracy (the officers administered these tests on people who had been drinking, observed the clues, guessed what their BAC would be ultimately and whether they would have arrested the subject - of course these were volunteers at the study locations).  After calculating their results they standardized these three tests, meaning that if all three are administered correctly and the individual exhibits a number of clues, there is a high percentage they would submit a BAC reading above the legal limit (0.08).

Seem legit?  Well no...why you say?  Take for example the subjects who participated in this "standardization."  They were a group of family and friends and co-workers who were dosed with specific amounts of alcohol and asked to take these tests.  The tests were conducted without fear of arrest, so you can take out the anxiousness and nervousness, who were of relatively good health and average age.  So officers did not conduct these on older individuals or those suffering from any physical limitations.  Troopers often testify when they were conducting tests on individuals with physical limitations (i.e., knee injury, etc.), "oh I took into consideration their limitations."  Really, how?  Were they ever trained how to "take the limitation into consideration?"  NO!  Also, consider that the standardization took place in a controlled environment, meaning not on the side of the road, in the cold or rain with cars whizzing by at 70 mph.  How could these tests accurately represent a standardized result?  Simple, they can't and don't.  So when a trooper records clues from these tests, those clues themselves are skewed because the conditions of administration are vastly different than how they were trained. Keep in mind that this is how troopers are currently trained to administer these tests, typically in a high school gym, in controlled temperatures, with no distractions, administered on individuals who volunteered and are not subject to arrest. How standardized is that?  Ha!  Why would anyone want to participate in these feats of balance given the training?  My advice, simply politely decline, inform the trooper you are not impaired but that you have been advised not to participate in them.  Then, if arrested, ask to speak with an attorney at the earliest opportunity.

If you have been arrested for a DUI in Seattle or anywhere in Washington State, give me a call (425) 398-4323.  This is what I do and can help you!

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by


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