Under Virginia law, field sobriety tests are considered completely voluntary. If you're not comfortable participating, you have the legal right to refuse to do so. However, refusal is not necessarily without consequences.
Potential Reasons for Refusing a Sobriety Test
Field sobriety tests typically measure coordination, balance, and focus, and there are several different tests that can be used. An officer may ask you to balance on one leg while counting to ten or take nine heel-to-toe steps and make a 180 degree turn to walk back toward your starting point. These tests are considered controversial because they can be difficult for some people who are completely sober to perform. For example, someone with an inner ear infection could have temporary troubles with equilibrium and balance. Past neurological damage, skeletal and movement disorders, or poorly controlled diabetes can also make it difficult to pass a sobriety test.
The Breathalyzer Preliminary Alcohol-Screening (PAS) test is also considered a type of field sobriety test. It estimates your blood alcohol level (BAC), but it can be thrown off by medications you've been taking, conditions such as acid reflux, a slower than average metabolism, or having recently vomited.
How a Test Refusal Impacts Probable Cause
Although you're not required to submit to field sobriety tests, refusing to do so can be weighed as part of the overall determination of probable cause. On its own, a refusal to submit to a sobriety test can't be considered probable cause. However, if there is other evidence to suggest you've been drinking, such as erratic driving behavior or the smell of alcohol on your breath, the officer can use your refusal to determine probable cause for an arrest.
How a Test Refusal Impacts DUI Sentencing
When you appear in court, your refusal to agree to a field sobriety test does not increase the potential penalties associated with the DUI charge. You face the exact same penalties you would if you had agreed to the test initially.
If you've been charged with a DUI, building an aggressive defense is essential. Call today to schedule a free, no-obligation initial case review with Virginia attorney Charles V. Hardenbergh.