Most people do not realize they can say no. When an officer asks you to walk a line, stand on one leg, or follow a pen with your eyes, those field sobriety tests are, for drivers 21 and over, generally voluntary. I am Joel Brand, and understanding what is optional and what is not can change the entire shape of your case.
Field sobriety tests are voluntary
The standardized roadside tests, the eye test, the walk-and-turn, and the one-leg stand, are designed to gather evidence against you, and they are difficult even when sober. For drivers 21 and over who are not on DUI probation, there is generally no legal penalty for politely declining them. Officers are not required to tell you that, and most do not. They ask in a way that sounds like an order ("I need you to step out and do a few tests"), and most people comply without realizing they had a choice.
Why these tests are stacked against you
It helps to understand what you are being asked to do. These tests are scored on a list of small "clues," and only a couple of clues count as a failure. They are administered on the shoulder of a road, often at night, in the cold, with traffic and patrol lights in your eyes, on uneven pavement, in whatever shoes you happened to wear. Sober people fail them regularly. And the officer has usually already decided you are impaired before the first test even begins, which colors how every wobble gets recorded. In other words, agreeing to perform them mostly gives the officer more material to justify an arrest. See the full unfair field sobriety test defense.
How to decline without making things worse
If you choose to decline, do it calmly and politely. You can simply say something like, "I'd prefer not to perform any tests." Stay courteous, do not argue, and do not become evasive about basic identification. Declining the tests is your right, but being combative or fleeing is not, and that kind of behavior can create new problems. The goal is to avoid generating evidence against yourself while remaining respectful and cooperative about the things you are actually required to do.
The roadside handheld breath test (PAS)
The small preliminary alcohol screening (PAS) device an officer uses at the roadside before arrest is also generally optional for drivers 21 and over who are not on DUI probation. It is a field sobriety tool, not the official evidentiary test, and like the other roadside exercises it is part of building the case against you. People constantly confuse this little handheld unit with the mandatory station test, but they are not the same thing, and the legal consequences of declining them are completely different.
The chemical test is different, and it is mandatory
Do not confuse any of that with the post-arrest breath or blood test. Once you are lawfully arrested for DUI, California's implied consent law requires you to submit to an official chemical test, and that one is not optional. Refusing it triggers a one-year license suspension (with no restricted-license option), a sentencing enhancement if you are convicted, and the prosecutor can tell the jury you refused. The roadside tests are voluntary; the post-arrest chemical test is not. This is the single most important distinction to keep straight, and confusing the two is one of the most common and costly mistakes I see people make on the night of an arrest.
Who does not have the choice
The general rule that field sobriety and PAS tests are voluntary has exceptions. Drivers under 21 are subject to California's zero-tolerance law, and anyone already on DUI probation is generally required to submit to a PAS test on request. If either applies to you, declining can carry its own consequences, so the calculus is different. For most adult drivers not on probation, though, the roadside tests remain optional.
Should you decline? The practical trade-off
People often ask whether declining helps or hurts. The honest answer is that it depends on your situation, but as a general matter, performing poorly on field sobriety tests gives the officer more justification to arrest you and more evidence for the prosecutor to use later. Politely declining denies them that material. The trade-off is that an officer who has already decided to arrest you may do so regardless, and your decision not to perform the tests cannot itself be treated as proof of guilt the way a chemical test refusal can. For most sober-but-nervous drivers who know they would struggle on these awkward exercises, there is little upside to volunteering.
Silence and your other rights
Declining the tests goes hand in hand with another right people forget at a stop: you do not have to answer investigative questions like "How much have you had to drink tonight?" You must provide your license, registration, and proof of insurance, and you should be polite, but you are not obligated to give the officer admissions that help build the case. Volunteering "just two beers" is one of the most common ways people hand the prosecution evidence. The same restraint that makes declining field sobriety tests sensible applies to what you say. See the Miranda rights discussion for more.
If you already took them
If you performed the tests, do not despair. They are still very challengeable, because the same flaws that make them unreliable also make a "failure" weak evidence. The conditions, the officer's administration, your physical condition, and every deviation from protocol are all fair game. See the unfair field sobriety test defense, the common police mistakes at a DUI stop, and my top DUI defenses.
Think this applies to you? Let's find out.
Whether this defense fits depends on the specific records and facts of your stop, which is exactly what I review. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.