By DUI/DWI tests, do you mean field sobriety tests? Since police officers are routinely courteous enough to use “please” and “thank you” even when asking for things they have full authority to command you to do, how do you know what they do not have the authority to command you to do something? Do you ask, “Is that a request, or are you being polite about what you are legally requiring me to do?”
If you are certain you can pass the test and yet you know the officer had probable cause to pull you over on suspicion of driving under the influence–because you were changing a CD or doing some other stupid thing that made you weave or whatever it was you did–taking a field sobriety test can presumably keep you from getting arrested. You may just get a moving violation for your driving errors and be allowed to go on your way. Is that not a reason for taking them?
Just out of curiosity, how do you turn down a field sobriety test? “With all due respect, sir, I do not take tests I am not required by law to take.” Or how do you do it? When are the police allowed to require you to get out of your car?
Those are great questions.
Easiest one first: Police can ALWAYS ask a driver to get out of his car (Pennsylvania v Mimms). This is, among many things, to avoid drivers reaching for things, like guns. Interestingly, one of the justices who wrote dissents to this case was Thurgood Marshall, the first black US Supreme Court justice.
For the harder questions:
If you check your state law, “DUI/DWI with refusal” refers to refusal to take the breath or blood test. NOT the FSTs!
For confirmation, check your state’s jury instructions. These are what we use to instruct the jury on the law before it returns a verdict.
So yeah, you are NOT required to take the FSTs!
Now, how do you refuse? That’s a good one.
You can refuse by being firm but positive. Something like, “I’m sorry but I do not wish to take the tests.” Realistically, they might turn nasty on you. To which you say, “Sorry but state law does not require me to take the tests.”
Should you refuse?
The key here is that it’s all about the officer’s OVERALL determination. A cop can simply say, “I saw you run the red and you reek of alcohol, so I’m gonna arrest you for DUI right now.”
But, is what the officer did enough of an overall determination? Sober people run reds, and the “alcohol smell” thing is a myth. (Ethanol doesn’t smell, and beer smells more than Everclear.)
Here’s my story: I’ve personally been stopped before after one beer. I was pressured into the eye test, but I was doubtful that the eye test would show that much, and the cop agreed that I was not above the legal limit. He even tried to ask me how impaired I felt from 1-10, to which I said “one.” After a lot of talking about how contact lenses make my eyes red, and insisting that I was not impaired, and that it’s an unfamiliar town so I didn’t see the no left turn, all I got was a warning.
So, if you honestly know you’re not impaired, then take the tests because if you don’t, police will use it against you and start acting nasty.
But if you know you’re toast, then refuse the FSTs. After all, what looks worse for the overall determination? Bad FSTs, or no FSTs?
The cop will act nasty and you’ll likely be arrested, but if you think you’re toast, I’m more concerned about getting you not guilty in trial rather than whether you spent a night or two in jail. Gotta think long term.
Regarding the breath or blood test, once again, I can’t advise you to break the law. Here it’s easier to refuse, just say no. The cop will happily arrest you for refusal. But, just like with FSTs, if you’re toast, what looks worse? A test of .08, or no test at all?
Something to think about…
I hope it goes without saying that this all implies that wise people take the most wise precaution: They don’t break the law.
Yes. Like with medicine, prevention is best.
Some laws are not for safety but revenue and POs can enforce them or ignore them. They do it all the time on almost every stop.