If you are pulled over in your vehicle on suspicion of driving while intoxicated, the police officer may demand that you perform field sobriety tests to demonstrate whether you are actually impaired. In performing these tests, they can either provide some evidence that you might be sober or completely devastating to your case and can result in arrest and conviction. Can you refuse a field sobriety test when requested by the police officer? What are the consequences of refusing these tests?
Michigan law has gradually been moving towards law enforcement adopting standard field test procedures for use across the state. In 2016, Public Act 242 and 243 became law in Michigan and defined, for the first time, a “standardized field sobriety test” as “1 of the standardized tests validated by the National Highway Traffic Safety Administration.” MCL 257.62a. “A field sobriety test is considered a standardized field sobriety test… if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration (NHTSA).” Id. The Standardized Field Sobriety Test (SFST) of the NHTSA is actually one of three different tests:
- HORIZONTAL GAZE NYSTAGMUS (HGN) TEST – The police officer will observe the eyes of a subject as he or she follows a slowly moving object such as a pen, finger or flashlight horizontally with his or her eyes. The police officer looks for indicators of intoxication such as:
- The eyes are unable to follow a moving object smoothly.
- The eye-jerking is distinct and sustained nystagmus when the eye is at maximum deviation.
- The angle of onset of jerking is prior to 45 degrees of center.
- WALK-AND-TURN TEST – The police officer directs the subject to take nine steps, touching heel-to-toe, along a straight line. At the end of those steps, the subject must turn on one foot and take nine additional steps, touching heel-to-toe, in the opposite direction. The police officer looks for indicators of intoxication such as:
- The subject is unable to keep balance while listening to the instructions
- The subject does not follow directions (e.g. takes wrong number of steps, turns improperly).
- The subject stops walking or holds out arms to maintain balance.
- The subject is unable to maintain a straight line.
- ONE-LEG STAND TEST – The police officer directs the subject to stand with one foot about six inches off the ground for 30 seconds and then directs the subject to put his or her foot down. The police officer looks for indicators of intoxication such as:
- The subject is swaying, hopping or using arms to balance.
- The subject is does not follow directions (e.g. stands with wrong foot, leans on another object for support.
- The subject is unable to balance and puts foot down or falls down.
Under the new law, “[a] person who is qualified by knowledge, skill, experience, training, or education, in the administration of standardized field sobriety tests, including the horizontal gaze nystagmus (HGN) test, shall be allowed to testify subject to showing of a proper foundation of qualifications.” MCL 257.625s. This means that police officers can testify at trial about how they were trained in the standardized testing and be subject to cross-examination on whether or not the tests were conducted correctly. Even the HGN test has gained enough acceptance in the scientific community as a tool to establish the presence of alcohol that expert testimony is no longer required to establish the validity of this test. People v Berger, 217 Mich App 213; 551 NW2d 421 (1996). However, a police officer’s incorrect administration of the HGN can lead to an inaccurate interpretation of the result and can affect a search warrant granted on this premise. People v Mullen, 282 Mich App 14; 762 NW2d 170 (2008).
Michigan’s new laws do not prevent police officers from using other “non-standardized” field sobriety tests as long as they comport with Michigan’s rules of evidence. For example, police officers may ask the subject to count to 10 or recite the alphabet forwards or backwards, or ask the subject to extend his arm out and touch his nose with the index finger. This means that the officer can essentially testify about any field sobriety test tactic as long as it is relevant and admissible.
The inability to perform these tests doesn’t mean that the subject is actually intoxicated. Age, injury or illness can affect a person’s ability to walk in a straight line or stand on one foot. A person who is deaf or hard of hearing may not be able to listen to directions. An eye affliction or disease may affect a person’s ability to follow a slow-moving object. A police officer may falsely determine probable cause from a field sobriety test that has nothing to do with alcohol or drugs. These are important considerations to consider before you agree to the police officer’s request.
Despite the value and admissibility of field sobriety tests, there is no requirement under Michigan law for a driver to submit to them even when demanded by a police officer. More often than not, agreeing to perform a field sobriety test simply provides the prosecutor with more evidence to obtain a conviction against you. Even worse, a person failing a field sobriety test because of age or medical conditions may be subject to a false conviction of drunk driving when alcohol or drugs were never consumed. In short, you may have nothing to gain and everything to use.
However, do not think that refusing a field sobriety test will also allow you to refuse other types of sobriety tests requested by the police officer. You may be asked to submit to a preliminary breath test (PBT) on the roadside with a portable machine. Refusing to take the PBT can result in the driver being responsible for a civil infraction punishable by a fine. A commercial vehicle driver who refuses a PBT may even be subject to a misdemeanor conviction. You may eventually be arrested and requested to take a Datamaster breath test or a blood test for chemical analysis. Under Michigan’s implied consent laws, refusing any of these chemical tests can result in 6 points and suspension of your operator’s license. You should always consult with a lawyer before taking the drastic step of refusing any sobriety testing requests made by the police. Otherwise you may incur severe and unexpected consequences.
If you or a loved one is charged with any criminal offense, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.