Purpose

This supplements Guilty until proven innocent (never plead guilty), Until proven innocent - the process, and Police stops. This describes police traffic stops targeting impaired driving.

These are general comments about US criminal process. Other countries of course have different requirements. This is particularly the case with impaired driving, because the US and a few other countries have probable cause requirements^{[1] [2]} for requiring a chemical test for impairment. Without probable cause, the chemical test results cannot be introduced in a court of law under the Exclusionary Rule. ("probable cause" and "Exclusionary Rule" are US terms. Terms in other countries may differ.^{[1] [2]})

Not legal advice

This is also not legal advice; it is general commentary on the internet. For legal advice and information outside of the US, please look up local law or speak with a lawyer. If speaking with a lawyer is not an option, locate a civil rights organisation in your jurisdiction such as (in the US) the ACLU. There are also quite a few attorneys with information on webpages.

The laws and procedures vary between jurisdictions, so it makes sense to check with local sources (in person or on the web) for information in any given jurisdiction.

The Issues

1. These tests are clearly pseudoscience, and in their implementation are evaluated by highly subjective criteria, and without the use of baseline reference criteria.
   
   
2. These tests are used as a basis for probable cause for arrest, and (in some jurisdictions) as evidence at trial.
   
   
3. These tests have never been subject to traditional independent academic peer review^[3] . Accordingly, none of the SFST field studies have been published in peer-reviewed scientific journals.

If probable cause for arrest is required, this should be limited to tangible observations without the use of pseudoscience. (It is likely that "tangible observations" will need to be something more than "standard three" common canned observations of "watery eyes", "smell of alcohol", "slurred speech".)

Summary

Be polite or courteous, especially in verbal responses. (Your responses are "on the record" and often recorded.) If questioned beyond identification and vehicular documentation, or asked to volunteer for any roadside "tests", "exercises" or quasi-medical "examinations":

In response to questions (beyond identification and documentation):

"Respectfully, I would like to exercise my right to remain silent"

(or "invoke my right to remain silent.", except that "invoke" sounds too forensic, whereas "exercise" is better understood by jurors and civil review boards as a civil right. I personally like the word, "Respectfully, " because it sort-of clarifies ... that your interaction is respecful.)

You have a right to remain silent. Use it.

Do not volunteer for any roadside "tests", "exercises" or quasi-medical "examinations" (or at-station versions of the same thing.)

Disregard appeals or rationales to participate. The best answer is something to the effect of "I wish to exercise my right to remain silent." (except for required ID and documentation of course.)

Don't argue with the police. There is no advantage and every disadvantage to debating with them at this point.

The ideal approach is to decline to answer questions and decline to participate in roadside anything, but be polite. Leave a determination of probable cause to actual observations.

As to refusing an evidentiary blood alcohol test (implied consent test), that is a matter of local legal advise. Implied consent refusal and the circumstances of implied consent refusal depend on circumstances and local law, and goes far beyond someone's rant on the internet! Either way, it's best to go into that implied consent test decision based on objective criteria and not confessions or pseudoscience.

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Ideally, the evidence supporting an arrest would be the standard three" common canned observations of "watery eyes", "smell of alcohol", "slurred speech", etc., and a perhaps irrelevant traffic violation, with nothing that can be characterised (or mis-characterised) as a confession, and not based on pseudoscience.

This will limit evidence to support probable cause basis (or the equivalent) for the demand for an Implied Consent law chemical test to actual observations (whether accepted with or refused).

Impaired driving stops

US-centric - Police stop procedures for impaired driving (DUI, DWI, etc.) in the US and a few other countries follow a need to establish probable cause ("Reasonable Grounds" in Canada^[1], and "Reasonable and Probable Grounds" in Australia^[2]; not to be confused with "reasonable suspicion" in US law) in order to sustain a charge based on a mandatory chemical test. If probable cause (or the equivalent) is required, Field Sobriety Tests (FSTs or SFSTs) will be commonly used as a substitute for actual observations.

(Some US jurisdictions, e.g., Rhode Island, describe "reasonable suspicion" (reasonable suspicion of driving under the influence), either in the Implied Consent law or in Implied Consent recitations. Regardless, the probable cause standard applies under the Fourth Amendment. Similarly, the description of "arrest" varies, but this is primarily a difference in semantics.)

reasonable suspicion that you are driving under the influence

Most countries don't have a requirement for probable cause or its equivalent in order to demand an evidentiary chemical test, so the police don't waste their time with SFSTs and other pseudoscience. If probable cause is not required, the police will not waste their own time with roadside "tests" or "examinations" that are basically pseudoscience^[3].

The reason probable cause is important - At least in the US (and apparently to some extent in Canada and Australia), Implied Consent to submit to a chemical blood alcohol test is contingent on the police having probable cause for arrest (US term). Without probable cause (or actual consent), the arrest is invalid and therefore results of the blood alcohol test would very likely be deemed invalid.

As with any arrest, the procedure for an impaired driving stop follows a progression, necessary to establish probable cause, in this case, before requiring a chemical test. The following are the US terms:

1. "Reasonable suspicion" (reason to stop a vehicle, not to be confused with "reasonable grounds" in Canada)
2. "Probable cause" - This is probable cause for arrest, but is also necessary to establish a foundation for a required chemical test if the chemical test is to be used as evidence in a trial. (Probable cause is also typically required for a search warrant, but that issue is reviewed by a judge.)
3. Formal charges
4. An evidential test (breathalyzer, blood, urine, drug swab). Essentially the Implied Consent law requires either probable cause for arrest or a warrant because the chemical test is considered a "search incident to arrest". (This can occur before or after an initial formal charge, depending on the jurisdiction.)

The actual terms (e.g., "arrest") will vary by jurisdiction, but the procedure is subject to Constitutional limits. It is possible to prosecute an impaired driving charge without a chemical test, but police will try to obtain the test (or an Implied Consent refusal).

Finding probable cause - Probable cause can include some external observations, but confessions, FSTs and Preliminary Breath Tests (PBTs) or Preliminary Alcohol Screening (PAS) tests make it far easier to document probable cause.

The difference between probable cause and evidence in court - Both are evidence, but probable cause does not need to meet the standards of proof to establish guilt "beyond a reasonable doubt". Instead, probable cause is just that -- probable cause. It allows the police to proceed with an implied consent request to require the chemical test. Without probable cause, the defendant's lawyer will have a strong case for excluding Implied Consent evidence according to something called the "Exclusionary Rule". These field observations, including FSTs (in some jurisdictions) can be used as evidence at trial, but that is really secondary to establishing probable cause.

The relevant difference is that justiciable probable cause is either established or not. Probable cause is of course not initially established and then magically removed by passing pseudoscience tests that are subjectively judged by a law enforcement officer.

NOTE:  Probable cause is generally not relevant until arrest (or a formal charge) or as a requirement for some other police action such as probable cause for obtaining a search warrant. The procedures occurring prior to arrest typically do not require probable cause, but are often used for the purpose of obtaining it. Adequacy of probable cause is typically argued before a judge, so don't question it during a stop.

The police are well-aware of the issues of probable cause, so there is no point in arguing probable cause with them. The best argument against adequacy of probable cause is the citizen electing to remain silent and not volunteer to participate in further procedures. The "remain silent" procedure is effectively a statement that the suspect doesn't believe adequate probable cause exists.

The typical procedure comprises:

First try to obtain a confession. An admission of recent consumption of any alcohol will do (e.g., "A couple of beer.", which is a sort of police joke).  If the driver made any statements about drinking alcohol or taking drugs (whether legal or illegal), this evidence can establish probable cause that the driver was under the influence. (Do not lie; just express a need to remain silent until speaking with a lawyer.)

Observe or manufacture observations of impairment. Observations include behaviour and confusion. Some of this is manufactured, such as the police asking for one thing, but then asking questions (often irrelevant, such as the subject's "first and middle names"). When encountering that, point out that you are "trying to [perform the initial request]," or not wanting to try to multitask during a police investigation..

Note that probable cause does not mean sufficient alcohol to demonstrate intoxication. In some cases, probable cause can be evidence of any recent alcohol consumption. Despite this, there are jurisdictions that require more than the "standard three" common canned observations of "watery eyes", "smell of alcohol", "slurred speech", etc.; hence the use of Field Sobriety Tests (FSTs), especially if the police do not believe that they can articulable probable cause without resorting to pseudoscience.

(Usually, the reason for the initial police stop will also be recited, but most jurisdictions limit disregard violations that do not demonstrate impairment.)

In other words, the FSTs are combined with the canned observations to substantiate an assertion of probable cause.

Field Sobriety Tests (FSTs or SFSTs), "HGN first" - FSTs are the familiar roadside "monkey tricks" tests, and are entirely voluntary. Most lawyers in the field advise declining SFTs (starting with HGN !), and often describe their primary function as to collect bogus evidence. The NHTSB describes establishing probable cause.

Details of FSTs are found elsewhere (e.g., Wikipedia article on Field Sobriety Tests) The important aspect is that the Horizontal Gaze Nystagmus Test (HGN) is typically given fist.

The Horizontal Gaze Nystagmus Test (HGN) is a variation of the roadside "monkey tricks" tests. The HGM test is intended to track the suspect's eyes for visible nystagmus (non-smooth eye movement) at the periphery of vision. This requires that the suspect (voluntarily) track an object with the eyes. The procedure is to watch eye movement while the subject is tracking a moving object such as a pencil. Courts vary on whether this is a "scientific test", but this is a legal evidentiary definition. In either case, the HGN is valid to establish probable cause. (Note that the actual presence of nystagmus shown in most YouTube videos for this is mostly imaginary.)

HGN first - There are several reasons for "HGN first".

• The nature of the HGN is such that the suspect is less likely to refuse. (This is important to the investigation because an FST refusal precludes use of FST "clues" to establish probable cause.)
• The HGN test has the general appearance of not being pseudoscience. (The Johns Hopkins Neurology Residency Program is 4 years. The police typically have a 1-day to a 72-hour training course to "qualify" for HGN testing.)
• The nature of the HGN is such that an HGN refusal "feels" more antagonistic to the suspect.
• Once the HGN test is taken, the suspect is more likely to follow through with the other roadside "monkey tricks" tests and the PBT. Regardless, a refusal after obtaining HGN "clues" could possibly be considered probable cause, which of course negates the advantage of refusal after taking the HGN.

Preliminary Breath Test (PBT) or Preliminary Alcohol Screening test (PAS) - This is the same technology as an evidential breath test, but does not follow formal procedures for evidential breath testing. The Preliminary Breath Test is used to establish probable cause for a DUI arrest and it is performed before a driver is arrested. Local recommendations from lawyers vary from never accept a PBT to only take a PBT with no recent alcohol, to only take the PBT if one knows one is below a "presumed sober" level (often different from the per se level; check local information on this one).

While a few jurisdictions mandate the PBT, the penalties are rarely, if ever, as severe as an Implied Consent refusal. (A PBT may be a requirement for drivers on probation.) Depending on the jurisdiction, any detected alcohol (beyond nominal levels) is probable cause for arrest. (In most cases, the police will state that a "low blow" will not result in an arrest, but that is often not true. Police are allowed to lie about this.)

Since the PBT is not part of the Implied Consent law, many attorneys recommend conditioning acceptance of a PBT on speaking to an attorney first. Most police will refuse, but the request to speak with an attorney or refusal on advice of an attorney demonstrates the suspect did not arbitrarily refuse.

The evidential chemical test cannot be refused without criminal or pseudo-civil penalties. If there was no probable cause, that can be litigated after the fact to exclude the chemical tests under the Exclusionary Rule.

In many cases, it is likely that a suspect who refuses FSTs or PBTs will still be arrested. What is important is that an arrest without sufficient probable cause is far better for the suspect than arrest with probable cause. It is also very likely that, if FSTs or PBTs are requested, the police have already determined to arrest the suspect.

In summary - Most attorneys recommend that a suspect not confess and recommend the suspect should politely refuse field sobriety tests.^[5]

Pseudoscience and Lack of Peer Review

Standardized Field Sobriety Tests (SFSTs) are widely considered to be pseudoscience for a number of reasons:

• The SFSTs were developed without conventional research. The "scientific" research has reported SFSTs as accurate, but these "scientific" studies were non-peer reviewed in-house jobs, arranged for and paid for by NHTSA, written by NHTSA contractors, and never accepted by any scientific journal; but just printed up by NHTSA itself.
• The FSTs were never peer reviewed. Instead, the Southern California Research Institute (SCRI), a defunct contractor commissioned by the (US) NHTSA, self-certified the SFSTs (and later the Sitting SFSTs), and claimed that to be "peer review" (which it is not).
• The SCRI never evaluated the FSTs in a working field environment.
• Evaluation of FST results is performed without a baseline reference to the subject's typical performance and without reference to the subject's performance under stress in a non-controlled environment.
• Evaluation of FST results is by subjectively evaluated "clues" on a checklist, but without objective criteria.
• Police are trained to perform the FSTs and report the "clues", but are (for obvious reasons) not given sufficient training in neurology to distinguish between the range of normal responses and responses resulting from impairment. As a practical matter, a trained neurologist would not be able to properly diagnose impairment because the subject's typical performance (baseline reference) is unavailable and therefore there is no baseline reference performance for the "clues" to be compared with.
• The criteria of the FSTs depend on ability of the subject to comprehend and follow instructions, and of course physical skills. These will be depreciated by impairment, but without a baseline reference for the particular subject, there is no way to determine the degree of depreciation^[6] .

The lack of peer review is particularly poignant, given that the NHTSA asserts peer review, showing (on its instruction outlines) an image of a scientific article (possibly the SCRI report itself) but without attribution, with the obvious implication that the unattributed image somehow demonstrates actual peer review.

One would reasonably expect that no judge would allow FST evidence in either an evidence suppression hearing^[7] or any other judicial proceeding. The problem is that most judges are not trained in peer-reviewed scientific tests, and therefore tend to accept this pseudoscience as having some kind of probative meaning. (The benefit to the citizen is that, if a judge or magistrate is used to accepting FSTs as probative, that judge or magistrate will be less inclined to consider actual observations to have substantive meaning. This could be advantageous to a defendant who never volunteered to engage in FSTs.)

Refusing Field Sobriety Tests (FSTs) in all circumstances

As mentioned immediately above, most attorneys recommend that a suspect not confess and recommend the suspect should politely refuse ^[5] field sobriety tests (FSTs). The reason is that FSTs are pseudoscience and exist only to support probable cause, or to synthesise evidence.

The rest is detail. There is a small degree of divergence on refusal of a preliminary breath test (PBT) and wide variation on proceeding with the evidential chemical breath test (generally requested with a warning read from a document by the police), but most advise is to strictly avoid attempting to participate in FSTs.

Responding to a Stop

Declining FSTs has no meaning if one manufactures probable cause independently of the FSTs. This involves two things:

Exercise your right to remain silent.

Beyond legally-required information (basically identification), either:
"I wish to exercise my right to remain silent."   or
(No answer)

Do not argue with police statements.

The best argument is typically saying nothing, in which case, the police are aware that the citizen is confident in the citizen's earlier response, but the citizen refuses to debate the issue.

Don't comment to the police about whether they have probable cause for arrest. Leave any disputes to the courtroom (e.g., for a lawyer in a Suppression Hearing).

Remember that most police encounters are being recorded.

Any statements or reactions "can and will be used against you."

Double Refusal

Many defense lawyers in the field refer to both refusing FSTs and refusing an evidentiary blood alcohol test (implied consent test) as "double refusal". The idea is that without either test, the state is left with proving impaired driving based on actual observations.

It really makes no sense to refuse an implied consent blood alcohol test but volunteer to participate in FSTs. For one thing, if the lawyer is going to assert the police did not have probable cause for arrest, it makes no sense to help them manufacture that probable cause. On the other hand, if one decides to take an implied consent blood alcohol test, a defense lawyer may still wish to be able to argue that there was no probable cause for arrest in an evidence suppression hearing.

States "requiring" Preliminary Breath Test (PBT)

NOTE:  This is for a Preliminary Breath Test (PBT). Field Sobriety Tests (FSTs) can always be refused ^[5], with the possible (but highly unlikely) exception of people on probation.

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The states of Alaska, Michigan, Montana, Nebraska, Nevada, New York, North Carolina and Rhode Island have statutes requiring submission to a Preliminary Breath Test (PBT). A PBT uses a small handheld device and is not the same as an evidentiary test mandated by the Implied Consent law. These are used to establish probable cause for arrest, but refusal is a simple violation. Canada (all provinces) also mandate submission to a Preliminary Breath Test (PBT).

Advise varies by state, but it should be noted that the presence of any alcohol is generally probable cause for arrest. In some states, if one knows one is below the limit, it is easiest to submit to the PBT, but in other states, local recommendations are to refuse the PBT or under which circumstances to refuse. It is likely that mandating a PBT request is also contingent on the police establishing probable cause for arrest.

Attorney Andrew Flusche (of Virginia) states that, for a regular license holder (not CDL), over 21 not on probation, PBT refusal in "many of these ... states impose a very minor punishment for refusing the roadside breath test". Check with local sources on this issue.

Probable cause issues

It is likely that a mandatory request (or demand) for a PBT submission requires the same probable cause for arrest as an evidentiary blood alcohol test under the Implied Consent law. (Implied Consent is in fact mentioned in some of these statutes.) In most (perhaps all) examples, PBT requests are made after either FSDs or after what could be regarded as actual probable cause, i.e., something more than "standard three" common canned observations of "watery eyes", "smell of alcohol", "slurred speech".).

The probable cause issue may be the reason there are few reports of PBT refusal prosecutions -- i.e., either the police can demonstrate probable cause, in which case the issue becomes the evidentiary test (test results or refusal), or there is no probable cause.

In other words, a PBT is a search in the same sense as an evidentiary blood alcohol test under the Implied Consent law. The only real difference is that the PBT testing unit is considered less reliable for submission as evidence during trial. If probable cause was not required, the police would be expected to complete screening with a PBT and not bother with FSTs.

Partial list of US states with various levels of laws attempting to restrict PBT refusal:

In some states, CDL drivers are required to submit to PBT. In many states, submission to a PBT is a condition of alcohol-related probation. These are not addressed in this list.

Four states have strict penalties for PBT refusal. Seek local advice regarding how this is enforced.

Alaska

A handful of states have Implied Consent laws that include the roadside breath test. That's the case in Alaska, where refusing to submit to the portable breath test is a Class B misdemeanor. Class B misdemeanors are punishable by up to 90 days in jail and a fine of up to $2,000.

Montana

The state is one of just a few in the country that has included preliminary alcohol assessment under the Implied Consent law. Drivers who refuse the roadside breath test face a license suspension of up to 1 year.

Nevada

A driver will have his or her driver's license suspended, and then face an administrative hearing, notwithstanding any criminal case by the state.

North Dakota

The state distinguishes between other field sobriety tests and the PBT. Refusing the roadside breath test instead triggers the same potential penalty as a DUI - up to 180 days in jail and a minimum fine of $500 - but if the driver then consents to a chemical test, there usually is no punishment.

Canada (all provinces)

The current impaired driving laws in Canada define penalties for PBT refusal. (Please check local information regarding the advisability of PBT refusal.)

The following US states have lesser penalties for PBT refusal. Seek local advice regarding how this is enforced:

New York

(unclear) There are two roadside breath tests in New York -- one which can be refused without penalty and one that cannot. The penalty is generally 2 points on a driver's license. Criminal defense attorneys say the best course of action is to refuse all roadside tests. Listed penalty for PBT refusal is automatic suspension of your driver's license for six months plus a fine of up to $500. The actual implementation of these charges on PBT refusal may vary. One report describes PBT refusal as a "traffic violation" with 2 "points". One lawyer described, "There is a traffic ticket that can be written for refusing this portable breath test but it rarely is." PBT refusal in NY does not carry the same penalties as refusing an evidentiary chemical test (Breathalyzer) at the station. information from The Kugel Law Firm. Other reports state that PBTs are "always legal to refuse". With the descriptions, "won't automatically lose your license", this suggests that the defendant should engage a lawyer when appearing at an administrative hearing following a PBT refusal.

Michigan

(PBT refusal is a civil infraction) There is a penalty in Michigan for refusing a PBT, but it is a civil infraction - the equivalent of a traffic ticket - and criminal defense attorneys generally recommend drivers politely refuse to take the test.

Rhode Island

While the PBT is not part of the Implied Consent law in the state, drivers can be ticketed for refusing to take a roadside breath test. The fine is $85.

Nebraska

Rather than include the PBT under the state's Implied Consent law, lawmakers in Nebraska created a separate law that makes refusing the roadside breath test a traffic infraction punishable by a fine of up to $100, and is considered to be Probable Cause for arrest.

North Carolina

The following is a partial listing of states with specific PBT requirements for drivers under a particular age:

Alabama

Alabama is among a small group of states that require young drivers to consent to a PBT or receive a traffic ticket. Adult drivers can refuse this roadside test without any penalty whatsoever.

California

PBT is reportedly mandatory for minors; however, many criminal defense attorneys advise motorists to refuse to consent to a roadside breath test.

Florida

Adults can refuse the PBT, but any driver under the age of 21 in Florida is required to consent to this test, as well as a chemical test, if requested by a law enforcement officer. The penalty is a civil infraction.

Accept the inevitability of an arrest

If the police request (or initiate) Field Sobriety Tests (FSTs), they are already intent on making arrest. The FSTs are only for obtaining probable cause evidence and evidence to support a DUI charge if the suspect declines an evidential breath test.

The reason is that, other than for probable cause evidence and other evidential purposes, this pseudoscience has no meaning and is just a waste of time. The police have to waste more than enough time processing an evidential chemical test and are not going to go through these FSTs unless they want to gather the additional evidence.

If you are lucky, the police will decide they don't have enough evidence to support an arrest or charge without the FSTs; however, on being requested to participate in pseudoscience, it is best to accept that arrest is forthcoming. At that point, the primary purpose of a refusal is to deny the police additional probable cause evidence. Either way, without the FSTs, it will be easier for the defense attorney to refute probable cause for arrest than for the defense attorney to refute probable cause based on performance of the FSTs.

The preliminary breath test (PBT) may be used as either a screening device or to obtain probable cause evidence, but if you expect to blow a "0.0", you will also blow a "0.0" in an evidentiary breathalyzer test.

Precautions

Avoid unnecessary police encounters.

Regularly check the vehicle's lighting. Reflections (of the car's lights) are easy to check when bored at a stoplight, or parked in front of a storefront.

Don't get careless at stop signs, lane changes, etc.

Be able to immediately retrieve the vehicle's documentation.
(e.g., insurance and registration on top of the documents stack.)

Expect multiple simultaneous requests, or unexpected questions.

"Officer, please one at a time. This is very stressful for me and I am not good at multitasking."

Leave the smart-ass stuff for "Sovereign Citizens" and other show-offs.

(... but enjoy their videos on YouTube.) I don't know why those SovCits don't just assert their rights under the 4th, 5th and 6th Amendments, which are (to some extent) recognised by all courts of law in the US, whereas that SovCit [organic fertilizer] is recognised by a handful of crackpots on YouTube.

Important
Don't debate the law with the police. You could state your point by asking the police to repeat what he/she said (still not recommended), but it's best to just leave the arguments to the courtroom. The police are for the most part well-aware of their own misstatements.

Resist the urge to argue.

Initial questions

Expect questions that go beyond "License, Proof of Insurance and Registration". The most common are:

"Where are going to?"
"Where are you coming from?"
"Have you had anything to drink?"
"Are you okay?"
Questions about meaningless items, such as your middle name and other details appearing on your ID.

Answer: "I wish to remain silent."

(Some jurisdictions no longer ask for registration because the police obtain this information using a database inquiry.)

In most jurisdictions, it is necessary to identify yourself. One can either say that the information on the license is current and correct or recite the name and address.
If you know the information on the ID is accurate, "The information on my ID is accurate and current." (or "The information on my ID is accurate and current, except...")

The "Where are going to?" is a "freebie". The answer is basically aspirational, yet can still be answered by "I wish to remain silent." (or "Respectfully, I wish to remain silent." Typically this is a "fluff" question preceding "Where are coming from?" or perhaps to evoke "I'm not that drunk." responses.)

It's convenient to invoke one's right to remain silent early-on, as this lets the police know that they are unlikely to obtain further probable cause evidence. It's sort-of like being a SovCit, but without being an a***** or even hostile to the police. The police are well-aware that this de facto invocation of the 4th, 5th and 6th Amendments (US; or equivalent rights elsewhere) is proper procedure. (They may pretend to be angry or offended, but that's ploy.)

Typical police requests for FSTs

Note:  These examples are derived from the few states that permit video recordings of police stops the be released to the general public. This is not a comprehensive list.

"Step out of the car for me."

In most states, that is a lawful order.

"Be honest with me"

"I wish to speak with a lawyer."

Besides the intended insult, that "Be honest" comment is a dead give-away that the police are seeking probable cause. It's best to freeze the interrogation with the lawyer request. If the encounter is being recorded, the request for a lawyer flags that "Be honest" comment as part of an accusatory interrogation.

(Police ask "Why not?")

"I have a deep-rooted reaction to pseudoscience. Respectfully, I don't want to participate in pseudoscience."

(Pseudoscience because FSTs have never been peer reviewed and have no baseline reference for an individual the tester has never met. The FSTs were developed by a now-defunct outside contractor that self-reviewed the validity of these tests.)

"Do you have any medical conditions that I should know about."

"That would be HIPAA-protected Personal Health Information. I do not wish to discuss that. I wish to speak with a lawyer."

(There's that "I wish to speak with a lawyer" thing again.)

(Police starts to perform test, typically Horizontal Gaze Nystagmus Test (HGN))

"Are these tests voluntary?", followed by,
"I do not consent. I wish to speak with a lawyer first."

"I would like to perform some tests to see if you are safe to drive."

Not required.

"I do not consent. I wish to speak with a lawyer first."

"I would like to perform some tests to dispel my belief that you are under the influence of alcohol and/or narcotics."

The police either have or don't have probable cause. (Don't argue about whether you can control the officer's 'belief'.)

"I do not consent. I wish to speak with a lawyer first."

"I am asking you to perform some tests for me. Are you going to comply?"

"I do not consent. I wish to speak with a lawyer first." (Is this getting repetitious?)

It is required to "Comply" with a lawful order. That's not the same as compliance or non-compliance with voluntary requests. It is possible to say, "I will comply, but would like to speak with a lawyer first."

(Mentions the Implied Consent law, followed by an FST request)

"Are these tests voluntary?"

"I do not consent. I wish to speak with a lawyer first."

(Mention of "not complying", or "charged with obstruction")

Not consenting to Field Sobriety Tests is never "obstruction". Same with stating one does not consent to searches (but don't try to physically obstruct).

"I do not consent. I wish to speak with a lawyer first."

"If you refuse, I will have to base my arrest decision on what I have observed so far."

That's right. The police either have justiciable probable cause or they don't. The probable cause does not magically get erased by providing more evidence.

"I do not consent. I wish to speak with a lawyer first."
    or...
"So you are saying you have articulable evidence of impairment, but you want to perform these tests to confirm that?"

(At this point, take whatever answer the police give without comment. The answer may or may not be useful in an Exclusion Hearing, for the lawyer to demonstrate that "articulable evidence of impairment" was insufficient; otherwise the police would not have attempted to perform FSTs. Do not comment on the answer during the police procedures.)

"If you satisfactorily complete these tests, you will be free to go."

Nope. That's not the way it works. At this point, the police either think they have probable cause or they don't.

(After a description of a physical disability) "I will take that into consideration."

For one thing, that implies that one gave some explanation which would be regarded as an excuse instead of simply declining. Don't make excuses unless you first decline.

As to "take that into consideration", it is highly unlikely that the police will edit their pre-printed form to delete "clues" or establish a baseline reference for their tests, or for that matter even know how to adjust their evaluation criteria.

At this point, perhaps the best response is,
"I don't know how you can do that. I do not consent. I wish to speak with a lawyer first."
  or
"I do not consent. I wish to speak with a lawyer first."
  or simply
"How?" (and then decline if you hadn't already done so)

and one rather odd one out of Florida "You are required to submit to a Field Sobriety Test. It's written on the back of your driver's license."

No, (and nothing regarding FSTs is written on the back of Florida driver's licenses).

More-smartass answers

Smartass answers are not recommended, but are fun to read. If you feel an urge to respond to the police, at least include the word "respectfully" (or the equivalent), or something that will sound reasonable before a judge. This [organic fertilizer] is being recorded. Additionally, if probable cause is marginal, you don't want to provide an incentive for the police to arrest as an emotional response.

Seriously, the best 'smartass answer' is to politely refuse to speak other than to give your basic ID information (or say "The information on my license is current.", and a single request, "I wish to speak with a lawyer first." in response to the first question you don't want to answer).

(after an explanation by the police, which invariably would not describe 'probable cause')

"I didn't understand how that relates to 'probable cause'. Respectfully, I would like to talk to a lawyer before deciding."

"Be honest with me"

"I wish to speak with a lawyer."

This is one 'smartass' comment that may be a good choice. It is likely to either freeze the interrogation or perhaps depreciate the value of any further interrogation.

Ignore any questions as to why you want a lawyer, or if you know how to explain "the complexity inherent in the legal process" and the need for a lawyer ... well do so politely because you just killed the investigation. (The police probably don't need a citizen to explain the need to speak with a lawyer.)

(after any request followed by a 'splainy' comment or a police statement that you believe is false)

"[Repeat part of the 'splainy' reason]. "Respectfully, I would like to talk to a lawyer."

This may also be a good choice but can be dicey. You are essentially stating "on the record" that the police explanation is [bovine sourced organic fertilizer], so include "respectfully" or the equivalent. If the police statement is false, this may or may not affect a judge's decision. Try to remember or write down the police statement that instigated your lawyer request.

In response to "It's a yes or no question"

It can be a "yes" or "no" or it can be nuanced, so...

"What do you want me to tell you? -- Because I don't understand the question."

More likely, "... I don't understand the implications of your question."

"I'm not driving. I'm travelling."

No, DON'T say that! Leave that for some a**** who films that [stuff] on YouTube.

"If you refuse, I will have to base my arrest decision on what I observed so far."

"So do you have justiciable probable cause for arrest? Will my participation in pseudoscience tests magically remove that probable cause ... because that's how pseudoscience works?"

(Obviously the cop will consider that to be a full-on challenge and will be likely to retaliate. That may be a good line of questioning for a lawyer in court if refusal of FSTs are permitted to be brought up, but it's better to simply say "No." or request to talk to a lawyer first.)

alternatively:
 "Respectfully, I presume you either have justiciable probable cause or you don't.", or
"Are you asserting that you have probable cause."

(It would be nice if the police say, "no" to a question about probable cause, but they're not likely to do that.)

"If you refuse, I will have to base my arrest decision on what I observed." (same as above)

"Do you have justiciable probable cause for arrest?"

This may or may not cause the police to make a statement regarding probable cause. As a practical matter, they probably will have already made their decision and say, "yes" but the real risk is that there may be a question in the officer's mind as to whether to rely on the initial observations as justiciable probable cause.
More likely, you'll hear a repeat request. Follow up with, "Respectfully, I would like to talk to a lawyer."

(alternatively:)
"No. I've seen stories of these things being used to fake probable cause for arrest. I hope I'm wrong, but that's what I've seen. They're pseudoscience, so I'd rather rely on the actual observations of my actual driving as justiciable probable cause."
  The problem is a judge or trier of fact may consider this to be argumentative when stated during the traffic stop.

(better alternatives:)
"Respectfully, I'd rather you base your decision on your initial observations of my driving as justiciable probable cause".
  (If the police believed they had justiciable probable cause, they wouldn't waste their time on pseudoscience.)

("FSTs are pseudoscience" answers) "Respectfully, I don't believe in pseudoscience" followed by,
"These 'tests' have never been peer reviewed. In part because you would need a reference to my typical performance on these tests in a non-stressful controlled environment, which obviously you don't have."

(Say "typical", "non-stressed", "in controlled conditions", etc.; not "sober" for obvious reasons.)

If the "pseudoscience" response is recorded and is respectful, and presented to a trier of fact, it brings into question the use of FSTs.

"Are you refusing to take these tests?"

"No, I can't refuse because I believe they're voluntary and hadn't even volunteered. I wish to speak with a lawyer first."

("Smartass" because it's employs semantics.)

(better alternative, only state:)
"I wish to speak with a lawyer first." At that point, the only statement of 'refusal' will be that of the police.
    or "No, I don't think I can refuse because I hadn't volunteered yet. Well, I suppose unless your're talking 'refused to volunteer'. I wish to speak with a lawyer first."

"Silent refusal" or "passive refusal" means non-acceptance (i.e., refusal) without saying "I refuse". Typically this is done by saying "I would like to speak with a lawyer before I decide" or simply "I would like to speak with a lawyer." In the context of this article, this refers to refusing to participating in a test. It's called "passive refusal" because the "refusal" is asserted by the police and not the suspect/citizen.

An example of passive refusal would be insisting on speaking with a lawyer before giving consent.

"I'm not refusing but I would like to speak with a lawyer before moving forward."

Passive refusal generally has no significant meaning by itself, as the judge will look at whether refusal occurred and what effect the refusal has.

Some implications of passive refusal:

If a passive refusal assertion is raised in court, the attorney will often challenge whether refusal occurred. For example, if the citizen asked to speak with a lawyer first, that would not be a refusal except where the law provides an exception (e.g., showing ID; Implied Consent chemical testing in many states).

If the passive refusal involves a request to speak to a lawyer, whether the citizen had that right.

In most cases, a request to speak with a lawyer first is a valid request. Exceptions are mandated items such as showing ID, and driver and vehicle paperwork. The Implied Consent law for submitting to an evidentiary chemical test is an exception in many cases. (Some states permit a quick call to a lawyer before consenting under Implied Consent.)

This sort of "silent refusal" when asked to take the test required under the Implied Consent law considered an "Implied Consent Refusal". FSTs are not required (except in particular instances), so "silent refusal" is permissible. This probably has little consequence because there is no Implied Consent law involved in FSTs. Additionally, there is no exception in the law to the right of counsel for FST tests, but it is highly unlikely that a request to speak with a lawyer will be honored by the police. (This is different from the Implied Consent law for an evidentiary chemical test, in which restrictions on the right to counsel are permitted in most jurisdictions.)

NOTE: The time to argue whether passive refusal occurred is before the judge; not before the police. The police will tell the suspect/citizen that the person's actions are considered a refusal, but still know that the relevant determination of refusal in a passive refusal case is that made by the judge.

Other details

There are a number of details, which can be searched on the web. For example, most attorneys will state, if stopped for DUI, it is usually best refuse "field sobriety" tests.

Here's a Maryland Lawyer's Comments on refusing field sobriety or roadside "monkey tricks" tests.

If there is a legal requirement, be sure to state this clearly when the formal request is made.

In the above example, if one is willing to consent to a chemical test, state, "I will comply with an official demand to take a chemical test if required." (or "I will take the 'evidence' test for blood alcohol if that is required.") That makes it difficult for the police to argue later that consent was refused as a matter of law by ambiguous actions on your part. Such claims of refusal are unlikely to stand up in court, but a statement makes things clear.

"I will take the 'evidence' test for blood alcohol if required" is not the same as, "I consent." It is unlikely that police will disguise the actual Implied Consent request. In most states, there is a specified procedure used to demonstrate that the suspect is clearly informed that a request is made pursuant to the Implied Consent law, often with a recitation of the Implied Consent law by reading from a physical document describing Implied Consent. This Implied Consent will sound forensic (heavy legalese) and will be unambiguous. It is possible, however, that a few states do not require the Implied Consent notice to be read, but the police need to demonstrate in court that a clear Implied Consent request was made.

What is far more likely is an implication or outright lie that something other than the chemical test required under the Implied Consent law is subject to Implied Consent.

If you have an invisible disability, state this to the police.

While there are a number of bullies on "the job", most police behaviour is based on training on how to make judgment calls. Letting the police know what to expect helps in these situations.

Do not physically resist.

There's plenty of time to deal with illegal police action later.

Never make any move such as touching a policeman without permission.

Do not argue with the cop.

There is plenty of time for that later, either in the courts, through a lawyer, or even with a visit to the police station.

Expect the police to ask "why"

Unless you can come up with a polite explanation, the best response is just a scripted answer, such as:

"I wish to exercise my right to remain silent."   or...

(same answer, regardless of the stage of the encounter)   or...

"I'm sorry officer, but I've been advised to remain silent."

"I'm exercising my right to remain silent."

If asked again or asked about your response, "rinse and repeat".

(i.e., same answer)

best answer → "I wish to remain silent.  I would like to talk with a lawyer."

(same answer, regardless of the stage of the encounter)

Repeat of the original answer.

Don't worry if you don't have a lawyer on retainer. (Your name is probably not Donald Trump anyway.) Just "a lawyer" or "my lawyer" is good enough.

"My [cousin, neighbour, dog, neighbour's dog, etc.] is an attorney. She told me to never consent to searches."

I call that the "some a**hole" answer - "Some a**hole told me to remain silent."  (Remember to avoid saying "even if I were sober". Basically, "I decline" should be enough, unless you want to recite a physical condition.)

(Not really recommended, but...) if you want to give a smart-ass answer,

"I'm medically trained as ____. I don't believe in pseudoscience.  I wish to talk with a lawyer first."

(Optional) Mention an estimated wind speed, followed with "I know that."

This is probably not important, but may be relevant if a lawyer wants to refute police "observations" such as the smell of alcohol, cannabis, evil spirits, etc.

---

Maintain a regimented form of politeness.

It shows the officer that you are not confrontational (in a street sense) and that you are confident enough to stand up for your rights. Do not say "I have rights."

Politely asserting one's rights, such as "I decline to answer questions" or stating "May I speak with a lawyer first?" is not "confrontational" in this sense. Regardless, avoid the phrase, "I know my rights."

"For privacy" or "I understand, sir." are generally suitable answers.

The words "Respectfully," "I always respect the law." or "I wish to express an attitude of compliance." are sometimes useful because police are trained to write [organic fertilizer] down, and will then regurgitate it at court hearings. This will also show up in recorded interactions. (Don't respond to police questions about those statements.)

If "FST Refusal" leads to arrest

If "FST Refusal" or remaining silent leads to arrest, consider that if the police are inclined to arrest, they are going to arrest; only they prefer doing so with probable cause (or manufactured probable cause) to support the arrest when challenged in court. If they do not have probable cause there is a good chance they will not waste their time. In the worst of circumstances, this trades a valid arrest and prosecution for bit of inconvenience and perhaps minor cost. (If you are lucky, they may just detain you for a short time to see if that changes your mind.)

More to the point, justiciable probable cause is either established or not established. If the police believe they have justiciable probable cause, they will make the arrest based on that probable cause, but their decision will be limited to whether they believe that whatever they wish to present as probable cause is going to withstand court review. An arrest decision, and any further evidence obtained as a result of that arrest decision is dependent on whether the courts deem the probable cause sufficient. That's why they will request pseudoscience "tests<" to support their arrest decision.

In other words, a police statement, "If you don't submit to Field Sobriety Tests, I will have to base my decision on what I already have observed," is true -- the officer needs to determine if the observations are sufficient probable cause. Performance on pseudoscientific tests is not going to change whether "what I already have observed" is sufficient to sustain the arrest and any evidence that follows.

Given the pseudoscience involved in all Field Sobriety Tests, it is essentially not possible to change the police arrest decision by taking one of those tests.

Motion for Suppression

It may be worth asking counsel to consider whether to request that a request to perform FSTs is itself evidence or an admission that the police did not believe they had articulable probable cause for arrest (or probable cause for an implied consent request).

If FSTs are "routinely performed" as a matter of policy that indicates that the police have a policy of circumventing the requirement for articulable probable cause prior to arrest.

Evidential test (breath, blood or urine)

The Implied Consent laws in all US states and apparently in all Canadian provinces require consent to one or more of the evidential breath test, blood test or urine tests, sometimes called a "chemical test". (In the case of suspicion of alcohol without drugs it is extremely rare to be administered more than one type of test.) In most (perhaps all) jurisdictions, the police will read a notice of the requirement for consent to the evidentiary test, and it will be clear that the requested test is the actual evidential test required under the Implied Consent law.

US Supreme Court law (Birchfield v. North Dakota, 579 U.S. 438) makes it more convenient for police to request breathalyzer tests in jurisdictions that assign the choice to police, because police choice of a blood test often requires a warrant. (Warrantless urine tests and mouth swab tests were not addressed; however, given the facts of Birchfield, warrantless mouth swab tests for drugs would probably be permitted.)

Some states permit "Limited Right to Council". It doesn't hurt to ask, "May I call a lawyer first?" Just accept the answer, and if the law permits "Limited Right to Council", a refusal would severely compromise the state's case.

NOTE:   In most, if not all states, a test under the Implied Consent law is requested using a formal recitation, typically by the police reciting the Implied Consent law from a document. Simply asking, "Do you consent to a blood test" is not a recitation of the Implied Consent law, and therefore probably not an Implied Consent demand. (If you are not sure, it is possible to ask if it is.)

The advisability of consent or non-consent to the evidential test required under the Implied Consent law will vary according to local law and individual circumstances. That is far beyond to scope of this webpage.

Special Circumstances - CDL Drivers and Drivers on Probation

Preliminary Breath Tests (PBT) may be mandatory for either commercial drivers, at least while driving commercially. It is possible this extends to other Field Sobriety Tests, although this is not clear. CDL drivers should check to see if and to what extent an FST refusal will affect their CDLs.

In the case of PBTs for people with CDLs, this may also require that the PBT device be currently certified. The FMCSA describes mandatory drug and alcohol testing, but this is described as a requirement for testing by Federal DOT personnel or the employer under 49 CFR §382.107, and does not describe field testing during police stops.

In any case, seek competent advice on this issue.

What lawyer?

If the police do let you talk with a lawyer, at that point you will need to figure out who to call. If you don't have a list of lawyers on you phone, you would need to look this up. If you have the time, try to compile a brief list of criminal lawyers where you usually travel. If you know any lawyers, add the number to your addressbook. If not, then you will be limited to an on-line search.

As a practical matter, the first opportunity to speak with a lawyer will be after arrest.

Comment on driving while impaired

<lecture mode here> (sorry)

If you expect to be driving over the per se limit, you need to do more than learn how to avoid confessions or probable cause. For one thing, you will almost certainly give the police probable cause through your driving, or worse. Consider that developing a strategy for avoiding driving impaired is going to be a lot easier than a restricted license, license revocation, prison, expenses and more expenses from high insurance costs. Whether one has an alcohol problem or not is really up to the individual. The only issue with the law (for driving) is to do what is necessary to avoid what is prohibited, which is driving while impaired. You know this shit.

Along the same lines, the per se limit is just that -- a limit. It's a number and the number doesn't care how capable you are.

There are questions as to low levels (e.g., see Grand Rapids Effect (Wikipedia)), but it is clear that at most per se levels, an impaired driver is a serious hazard. Just don't do it, because it ain't worth it.

Also consider that, if the suspect has a history of impaired driving convictions, confession and probable cause evidence obtained in the field is more-or-less an afterthought. The police already have probable cause from police records of convictions, which are easily combined with observations not requiring confessions, FSTs or PSTs. At that point, the suspect must depend on the outcome of chemical test as required under the Implied Consent law.

I hadn't studied what the effects (if any) of cannabis on driving are, but it only makes sense to avoid being in a situation where one is obviously high and trying to convince the police that one is not. Again, just avoid putting yourself in that situation.

</lecture mode off>

More information

Police stops are described at

"busted" YouTube video

(45 minute video, but worth watching)

www.flexyourrights.org

(same thing, in text)

The ACLU website

Please view one of these. In other words, Do not confess

[1]^     Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure.

[2]^     Reasonable and probable grounds in Australia (Australian common law)

[3]^     The NHTSA Field Sobriety Test battery was commissioned, by the NTSB, to a defunct entity called the "Southern California Research Institute (SCRI)". This resolved the quandary of a series of even more silly FSTs, but it remains questionable how judges consider the NHTSA tests to be relevant to probable cause. These SCRI (NHTSA) tests have never been peer reviewed, although a few documents assert they are peer reviewed on the basis of the SCRI having self-reviewed their own "research". (i.e., they were never peer reviewed; but rather self-certified by the entity that produced the "research"!)  Basically the (defunct) SCRI entity converted bovine-sourced organic fertilizer to bovine-sourced organic fertilizer.
(For further information, see Law Office of Walter M. Reaves, Jr., P.C., - describing the science (or lack thereof) behind Field Sobriety Testing.)

[4]^     Rubenzer, "The psychometrics and science of standardized field sobriety tests, Part 1", The Champion, May,  2003, P. 48. (cited link: http://www.nacdl.org/Champion.aspx?id=795f)

[5]^ ^^     Since participating in the FSTs is voluntary (except for the PBT in States requiring Preliminary Breath Test (PBT), (in one sense) one cannot "refuse" because there is nothing to "refuse". ("There's nothing to refuse because I hadn't volunteered, but, respectfully, I am not volunteering for that.") This is probably a distinction without a difference, but if re-played, emphasises the voluntary natures of participation. (At that point, the police can call it "refuse" if they want.)

[6]^     The SFST procedure for the "Walk and Turn" test has a glaring error that has never been corrected. The test procedure places the subject in a "starting position" of one foot in front of the other, requiring balancing skills. The procedure follows this with the officer's instructions and a partial demonstration. This of course places the subject trying to maintain balance rather than listen to instructions.

The result is that a person who isn't trained to balance in that manner will either focus on the balancing and therefore not comprehend the full instructions, or position out of the "starting position" focus on the full instructions. Either way, the image is the obvious -- not following the instructions. Unfortunately, this is not apparent to judges, who are not physically performing the test.

The NTSB and their (now defunct) contractor have never corrected this error.

[7]^     A motion to suppress or evidence suppression hearing is a judicial hearing to determine whether evidence is illegally obtained, raised before trial on the charges (typically in a separate hearing).

This is often relevant when probable cause for arrest is required to obtain evidence such as a chemical blood alcohol test. The motion to suppress or evidence suppression hearing is advantageous, in part, because the judicial decision on suppression is made before a trial on the charges, which of course also affects plea negotiations. If the state's case pretty much depends on that evidence, the advantages of suppression are obvious.

The process can be somewhat different in an Administrative Hearing, but if a judicial determination is made that the evidence is suppressed, a defense lawyer will inevitably bring that up before the administrative entity.

back to arrest.html - Police stops

back to notguilty.html - Never plead guilty

to process.html - "Guilty until proven innocent" (the process)

to Field Sobriety Tests (FSTs) and Standardized Field Sobriety Tests (SFSTs) as Pseudoscience - A model evidentiary policy for adjudication by judges and administrators regarding exclusion of FSTs as evidence in Probable Cause hearings

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