Do I have to perform field sobriety tests or blow into a breathalyzer?

One of the first questions I get in a DWI case – having handled hundreds of such cases, it’s a common concern – is whether the person should’ve done the walk and turn test, Horizontal Gaze Nystagmus test, or other field sobriety test.

The answer is, simply, no. These are not fair tests. The officer is not trying to prove you innocent. The officer is trying to find clues to justify an arrest. And because these tests are hard for even people in entirely sober and well-lit conditions to complete, clues are almost always apparent.

You should exercise your constitutional rights to remain silent. You cannot be compelled to perform any field sobriety tests. If the officer threatened you, you may have a good argument that you did not perform the tests voluntarily. But if an officer merely was very persuasive (hint! hint!) then in all likelihood a court will rule that your performance was voluntary and will admit the results of the tests at court.

Whether you blow into the Intox EC/IR II machine is up to you. North Carolina has DWI implied consent laws which mandate that if you refuse to provide a breath sample upon request, your license will be suspended for at least a year, following a DWI refusal hearing in front of an administrative officer of the Division of Motor Vehicles.

In addition, the fact that you refused may be used against you in a court of law. And the police may get a search warrant an draw your blood.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.