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Do You Have to Submit to Field Sobriety Tests When You Are Pulled Over for a DWI?


When the police stop your vehicle because they believe you may have been drinking, you can expect a relatively routine interaction. The police will first ask for your identification and proof of auto insurance. Next they will ask you a few questions. The police want to hear your answers and see if you slur your words. If there are any signs of alcohol in the car or in your system, they may ask you to step out of the vehicle, which you are required by law to do. However, what comes next is a little up to you. The police may ask you to take a field sobriety test (FST). You have the right to refuse.

Credible Field Sobriety Tests

There are a number of FSTs police officers can use to gain evidence that you are inebriated. They almost all constitute a physical activity that is meant to test your thinking, coordination, and mobility. These tests can be hard for a sober person to complete perfectly. A tired individual or someone with a disability can also have a particularly difficult time completing a FST.

The FST officers can and will use depend on the jurisdiction. The test preferred in Loudon County may not be the same as the one utilized in Fairfax County. However, it is crucial to note that many old-fashioned FSTs are no longer used or considered credible, such as holding your arms out then touching your nose with your fingertip. Many FSTs were challenged in court, leading the National Highway Traffic Safety Administration to develop consistent and more credible tests, including:

  • The Horizontal Gaze Nystagmus Test: During this test, the police officer will ask you to stand straight, look at a small object like the top of a pen, and to follow that object back and forth with your eyes. A sober person’s eyes can smoothly track the object from right to left. A person who has been drinking will have a difficult time with this tasks and the police will observe involuntary jerking of the eyes.
  • The Walk and Turn Test: A police officer will ask you to take nine steps putting your heel to your toe every time. At the ninth step you must turn on one foot and return doing the same thing. The officer will look to see if you can follow instructions, maintain your balance, walk a straight line without stopping, and take the proper number of steps.
  • One Leg Stand Test: You may be asked to stand on one leg, with your other foot above the ground six inches, and with your arms at your side. You may also be asked to count while you do so. The officer will observe your ability to balance for about 30 seconds.

Defending Against FST Evidence

If you underwent a test that is no longer supported by the NHTSA, your attorney can ask that any mention of the test be thrown out of evidence. However, if the judge allows the evidence to be admitted into court, your attorney will build a case against that evidence, demonstrating that there is no standardized method of administering and grading this test and that it is not accurate evidence of impairment due to alcohol.

Additionally, even if you were given a standardized test, this is not a 100 percent accurate indication of inebriation. Your attorney can provide evidence to the court of the actual accuracy of these tests, which can be less than 80 percent. Your lawyer may also be able to attack the test on the basis that it was not administered or graded property.

Contact a Leesburg Attorney for Help

If you submitted to FSTs and now you are facing a DWI, there are many ways an attorney can combat the evidence against you. Contact the experienced Leesburg criminal defense attorneys of Whitbeck Cisneros McElroy PC to learn more.


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Whitbeck Cisneros McElroy PC maintains an office in Loudoun County in the Town of Leesburg. We welcome inquiries from throughout the Commonwealth of Virginia and beyond.

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