Interviewer: I heard that there are field sobriety tests where they’ll ask to just follow the pen light or walk a straight line. What are the standard tests you see that are administered on Long Island by the police?
Long island Police Officers Will Conduct the Standard Field Sobriety Tests
Ben: They do the standard walk the line. They will ask the driver to stand on one foot. They will ask if the driver can recite the alphabet backwards, which I don’t know if I could do when I am sober, to be honest. They ask drivers to touch their nose with your finger. Those are the standard ones that you usually see.
Is It Likely That You Will Fail the Field Sobriety Tests?
Interviewer: How often have peopled failed them? Can you pass these tests, or are they set up where you can’t?
The Tests Are Not Designed to Easily Performed, Even if You Have Not Been Drinking
Ben: I think the majority of them are set up for you not to pass, especially when you’re nervous because you’ve just been pulled over by the police. There are a lot of flashing lights there, and you don’t know exactly what’s going on. The adrenaline that’s flowing through you at that time can cause you to fail them. I think they’re easily failed, even when you’re not intoxicated.
Can You Refuse to Perform the Field Sobriety Tests?
Interviewer: What if you refuse to perform the field sobriety tests? What will happen? Is there any penalty to refuse them?
A Refusal Will Result in an Automatic Arrest and May Be Used against you in Trial
Ben: There’s no penalty, per say, but you’ll be automatically arrested. At trial, they can introduce evidence saying that you didn’t want to take the test, and they can let the jury draw conclusions from that, such as that you were drunk because you didn’t want to take the test anyway. A prosecutor will try to make that argument anyway.
Should You Agree to Perform the Field Sobriety Tests?
Interviewer: What would you say is better, to take the tests and give the state evidence or not to take them and try and make that argument?
Attorney Doscher Advises to Perform the Field Sobriety Tests if You Have Not Been Drinking
Ben: I would say that if you haven’t been drinking, take them. There’s no reason not to, even though I did just say that you can easily fail them anyway. I think you should take them.
The Police Stops Are Not Always Videotaped
Interviewer: Are traffic stops videotaped? Are you on video or no?
Ben: Yeah, a lot of times they have the dashboard cams? It depends on your standing, but not always though.
Interviewer: The roadside tests you can refuse. Is there a preliminary breath test the police will try to have you do at the roadside as well?
Attorney Doscher Advises Not to Comply with the Breath Test Administered on the Portable Device
Ben: Usually, yes there is a breath test administered on a handheld device. You can refuse to do it. I usually tell people to refuse to do it if they know they’re drunk because the prosecution will have a harder time proving beyond a reasonable doubt that you were drunk if they don’t have a breath test.
Interviewer: If you have failed sobriety test and this breath test … you say that if you refuse them, they’re going to arrest you, but at this point, if you’re out of the car and they’re having you do them, so they’re probably going to arrest you anyway, right?
Ben: Probably, yes.