Do I have to do field sobriety exercises? Should I?

You left your friend’s house after the Superbowl party. A bunch of good friends. Funny commercials. Chips and dip. Pizza. Hot wings. And, of course, some cold beers. You were there for a few hours, ate and drank, but felt okay to drive when the game was over.

Halfway home, it happens. The red and blue lights come on, and the police pull you over. Like everyone, your anxiety spikes, and you start getting nervous. You pull stop and up walks the police officer. He tells you that he pulled you over because you were weaving a little bit in your lane., or maybe because you were speeding. He asks for your license, registration, and insurance. As you gather the documents, he asks, “have you been drinking tonight?” Here we go! The officer asks you to step out of the car to talk to him, which you do. Once you are outside the car, he asks if you’d be willing to do field sobriety exercises. Now what?

What does Florida law say about sobriety exercises?

To start, under Florida law, you DO NOT need to do field sobriety exercises. You have the absolute right to refuse to do them. Unlike a breath test, the DMV will not suspend your driver’s license because you refuse to perform field sobriety exercises. The choice is yours.

If you tell the officer that you do not want to do the field sobriety exercises, they are supposed to advise you of “adverse consequences” that could come from not doing the field sobriety exercises. You may be asking yourself, “If I’m not going to lose my license, and it’s my right to refuse them, then what would be the adverse consequences?” That is where it gets a little tricky.

The officer is supposed to tell you that if you refuse to do the exercises, they will have to decide whether to arrest you based on the observations that they have made up to that point. They should also tell you that they are just trying to give you the opportunity to “dispel their suspicion” that you may be driving under the influence. What does that mean? It means what you think it means. The officer is telling you that you will be arrested for DUI if you do not do the exercises.

Refusal of sobriety tests will likely help your case.

The threat of being arrested is scary, no doubt. It is natural for a person in that situation to want to give the exercises at least a try, see if they can pass, and avoid going to jail. But the odds are that you are probably going to jail anyways. These exercises are easy to fail. While the government claims that these exercises are nothing more than things we do in our normal lives, when is the last time you did anything like them? When did you last “normally” walk down a line, one foot in front of the other, hands by your sides, staring at your foot, and counting 9 steps before turning around and doing it again? When was the last time you decided to stand on one leg, lift the other 6 inches off the ground with your arms by your side, and count out loud while staring at your foot for 30 seconds? Probably never (unless you are a DUI lawyer and practice these things for fun in your office). These exercises are challenging. It only takes a couple of mistakes on each one to “fail.”

In a DUI case where the defendant did field sobriety exercises, I would say that probably 80%-90% of the trial is devoted to talking about the defendant’s performance on the exercises. The officer and the prosecutor will go through every little thing they say you did wrong. They will point out how you didn’t follow the 60 instructions. The officer will testify about how simple all these things were and how bad you did. The defense lawyer will spend most of their time trying to explain everything you did correctly and explain to the jury that it is unreasonable to expect anyone in such a stressful situation to do well.

So why do I say all of this? If you refuse the exercises, you have essentially taken away the vast majority of the State’s “evidence” that you were impaired. The less you say, the less you do, and the less the government has to use against you. If you refuse the exercises, the government can only bring it up at trial to argue that you didn’t do the exercises because you knew you were guilty. They call this “consciousness of guilt.” However, even that argument disappears if you can tell the officer that you were always told not to do the exercises. All in all, a case with no field sobriety exercises is a much stronger case for the defense than a case where a client does them.

Arrested for DUI? You need a skilled DUI attorney on your side.

I’ll end by saying this: whether or not you consent to field sobriety exercises is always your choice. Sure, some people do well enough to pass them and get let go. But that is a small minority, not the majority. Just remember that the officer is pretty much asking you to do the exercises so that they can gather evidence of impairment. Heck, they have a whole checklist they use to mark off your “indicators of impairment” for each exercise. If you find yourself in a situation where the officer has already decided to start a DUI investigation, perhaps doing these exercises is not the best idea. Call our office for a free consultation if you want to talk more about your rights related to field sobriety exercises.