How should I tell the police officer that I don’t want to do those tests?
This guest blog post on Zooomr is from Todd Spodek, a leading NYC criminal attorney. Whether you’ve been drinking, or you haven’t had a drink in 25 years, you can be pulled over by law enforcement on a suspected DUI. All it takes is to be on the road late at night or early in the morning and weave within your own lane. You might be avoiding some potholes or changing a CD, but that police officer who you didn’t know was behind you just lit you up. Now what?
The police officer will ask you for your driver’s license, registration and proof of insurance. Your coordination will be observed while retrieving those. Then comes the crucial question. “Do you know why I pulled you over?” Be polite and respectful when you answer. When your answer comes, the officer will be focused on your eyes, any odor inside of your vehicle, the odor of your breath, your eyes and your speech patterns. He or she will also take a cursory glance inside of your vehicle for any contraband that might be in plain sight. Your answer to the question asked of you is probably irrelevant. The officer is trying to make an assessment to establish probable cause for a DWI/DUI arrest. Now what again?
You’ll be asked to get out of your vehicle. A body cam or dash cam is probably recording everything. The officer is trying to determine whether you should be taken to the station for blood alcohol testing. If you have the slightest odor of an alcoholic beverage on your breath, you’re probably going there, but there are some tests that the officer “would like you to perform” before you’re handcuffed and transported to the station. Those tests include:
- The horizontal gaze nystagmus test
- Walking the line
- The one leg in the air test
- Blowing into a portable breath testing device
None of these tests are fair. They’re set up for failure, and they’re all up to the officer’s subjective evaluation of your performance. Even if you haven’t had a drink in 25 years, you’re likely to fail at least one of them, and then you’ll be taken down to the station for breathalyzer testing. While you and the officer are being video recorded, the one thing that he or she won’t tell you is that no law in the State of New York requires you to submit to roadside sobriety tests. No matter how compelling or authoritative the officer’s voice might sound, he or she is making a mere request.
Remain polite and respectful
Remember that all of this encounter is probably being recorded. Be respectful, and politely tell the officer that you refuse to take any roadside field sobriety tests. You’re probably going to be taken down to the station for breathalyzer testing anyway, so there’s no reason to give the prosecution an opportunity to have more evidence to try to convict you with.
Breath testing at the station
The final request from the investigating officer will be for you to provide a breath sample in a breathalyzer at the police station. It’s not mandatory for you to do so, and you can again politely refuse. Depending on how far an officer wants to push, he or she can ask a judge for a search warrant to take your blood for analysis. That’s when your cooperation becomes mandatory.
There are consequences that affect your driver’s license by refusing roadside tests and breath testing at the station. Unless an accident resulted in severe injuries or a fatality, a police officer probably won’t ask for a search warrant, but that option remains open if you continue to refuse.
As experienced and respected New York City DWI/DUI lawyers, we’ll work with you on the DMV hearings on your license along with the defense of your DWI/DUI case. It’s a snap decision that you have to make if you’ve consumed any alcohol and get behind the wheel, but if you submit to field testing or a breathalyzer at the station, you’re probably giving the prosecution enough evidence to convict you with.