Can Drivers Refuse Field Sobriety Tests in California?

The answer depends on several things. The most important factor is usually whether you’ve been arrested or simply stopped. However, other factors, including the type of test, whether the driver is under 21, on probation for driving under the influence (DUI), or suspected of driving under the influence of drugs, can affect a driver’s ability to refuse. 

This article outlines several types of field sobriety tests. It also discusses when drivers might be able to refuse certain tests. Finally, it explains when a Marin County DUI defense attorney can help. 

What Is a Field Sobriety Test? 

A field sobriety test is an assessment that officers use to determine if a driver’s physical or mental skills might be impaired. 

Field sobriety tests might seem simple, but not all sobriety tests are equally reliable. For instance, the Marin County Sheriff’s Office prefers that its deputies use field sobriety tests that have been “recommended/recognized by the California Highway Patrol and/or the National Highway Traffic Safety Administration (NHTSA).”

The NHTSA recognizes three standardized field sobriety tests. The three NHTSA-approved tests are: 

• Horizontal Gaze Nystagmus (HGN). Alcohol can cause nystagmus, a condition where the eyes involuntarily shake or jerk. In the HGN test, the officer asks the suspect to follow an object with their eyes as they check for jerky movements. 

• Walk-and-Turn – In this test, the officer asks the suspect to take nine heel-to-toe steps, turn, and then take nine heel-to-toe steps back. This test checks balance and coordination. 

• One-Leg Stand – The officer asks the suspect to stand with their feet together, place their arms at their sides, and raise one foot roughly six inches from the ground. Then, the suspect must count out loud for about 30 seconds. A person who struggles to keep their balance or focus during this test might be intoxicated. 

The California Highway Patrol (CHP) also allows the modified Romberg test and the finger-to-nose test. 

• Modified Romberg – Here, the driver must stand with their feet together and their arms at their sides. Then, they must tilt their head back, close their eyes, and tell the officer when they think 30 seconds have passed. In addition to balance, this checks whether the driver is over- or underestimating the passage of time, something intoxicated people often do.

• Finger-to-nose – Here, the driver must stand with their feet together and their arms at their sides. After closing their eyes and tilting their head, they must touch their nose with the tip of their index (pointer) finger.  

Finally, officers will sometimes administer a PAS, or preliminary alcohol screening, at the scene. This test is conducted with a handheld device, such as a Breathalyzer. After the suspect blows into the device, it estimates their blood alcohol concentration (BAC).

What Happens If You Refuse a Field Sobriety Test Before an Arrest in California?

The answer depends on many factors, including the type of test, the age of the driver, and more.

General Rule 

Generally, a California driver over age 21 who is not on probation for DUI and who is not under arrest at the scene can refuse physical field tests like HGN and finger-to-nose without any penalty. HOWEVER, the officer can use your refusal as part of the probable cause to arrest you for DUI. In some cases, it can also be used as consciousness-of-guilt evidence at any eventual trial. 

The rule is slightly different for PAS tests. California law gives most drivers the right to refuse this test. Additionally, it cannot be used as consciousness-of-guilt evidence. 

Rules for Underage Drivers

Because it is illegal for people under 21 to drink, the law treats underage DUIs more harshly. These drivers can refuse physical field tests like the walk-and-turn. However, they cannot refuse a PAS. The first refusal carries a one-year suspension of driving privileges with increasing penalties for additional infractions within a 10-year period. 

Rules for Drivers on DUI Probation  

Drivers who are on probation for DUI also face special consequences. They can refuse a physical test, but they cannot refuse a PAS. A driver with one prior DUI can receive a two-year suspension for a refusal. This increases to three years when the driver has two or more prior DUI convictions. 

What Happens If You Refuse a Sobriety Test After Arrest in California?

The consequences of refusing a sobriety test after arrest are quite serious. At the police station, the officer might request: 

• A breath test
• A blood test
• A urine test 

Under California law, every driver who uses state roads consents to have either their blood or breath tested after a lawful arrest. Refusing these tests can lead to a driver’s license suspension of one to three years. Moreover, refusal may not work because the police can then request a warrant. 

Underage offenders will face the same penalties. Penalties for those on DUI probation start at two years’ suspension. 

Frequently Asked Questions About Refusing Sobriety Tests 

1. If I pass a field sobriety test, does the officer have to let me go?

Not necessarily. The officer will look at all of the circumstances. A person who passes a field sobriety test but has slurred speech and a strong odor of alcohol could still be arrested. 

2. Can the police search my car if I refuse a field sobriety test?

Not solely because of the refusal. To conduct a search without a warrant, an exception must apply. In most cases, refusing a sobriety test won’t be enough to trigger an exception. 

3. Can refusing a field sobriety test lead to a resisting-arrest charge?

Generally, no, as long as you are polite, peaceful, and calm.

4. What do officers record during a field sobriety test?

They record the instructions that they gave as well as their observations. They also note any refusals. 

How Can a Marin County DUI Lawyer Help After a Sobriety Test Refusal?

A DUI charge can change your life. Luckily, you don’t have to handle it on your own. A Marin County DUI defense attorney can help. Specifically, a DUI defense lawyer can look at which tests you refused and determine if you had a legal right to refuse them. Also, if you agreed to the test, your defense attorney can challenge the results. For example, tests like walk-and-turn can be affected by uneven surfaces, injuries, and other non-alcohol causes. Your attorney can also help you work with the DMV to handle any potential license suspensions.

If you’re facing a DUI charge in Marin County and need legal representation, contact Brownstein Law Group. We’ll provide aggressive representation for you or your loved one. Schedule a consultation by calling 415-795-9059 or using our online contact form.