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Why you can and should decline roadside sobriety tests

There are probably few things as dread-inducing as seeing the blue lights of a police vehicle in your rearview mirror. If you have been drinking alcohol, the ante is upped considerably, as is your apprehension.

You pull over to the side of the road and await the approach of the police officer. What will happen in the ensuing minutes will dictate whether you are allowed to go on your way or are detained for further questioning and possible arrest. The following advice may prove helpful to those facing similar circumstances.

What the cop might ask you

Police on DUI patrols have ways of extracting information from those they detain. One way to do this is to assume that the person has been imbibing alcohol by asking them not if but how much they have had to drink that night.

You should never lie to a police officer but that doesn't mean that you are required to answer any of their questions, either. It is perfectly acceptable to sidestep that question or refuse to answer it entirely. However, your response or lack of a response can inspire further questioning.

The problem with roadside sobriety tests

Your next dilemma may be to decide whether to participate in roadside sobriety tests. It is almost a universally bad idea to agree to perform these very subjective tasks on the side of the road which likely include the following:

  • Walk-and-turn (WAT)
  • One-leg stand (OLS)
  • Horizontal gaze nystagmus (HGN)

For one, none of the above tests are entirely objective, which means that a police officer can interpret the results with a liberal dose of the officer's personal bias. Let's suppose you attempt the walk-and-turn.

The officer may assert in their report that you "stumbled." What, exactly, constitutes a "stumble?" Perhaps you were wearing a pair of flip-flops and shook your foot rapidly to remove some loose gravel from your shoe. That simple movement to dislodge roadside debris and allow you to walk comfortably could be misconstrued as a "stumble" and add to the body of evidence being assembled against you.

The other roadside sobriety tests are subject to misinterpretation as well. The OLS requires the driver to remain standing on one foot while the officer counts down the seconds. There are many people who cannot stand on one foot due to injuries and/or orthopedic or neurological conditions. To expect them to do so on the side of the highway with traffic whizzing by mere inches away is ridiculous.

Even the horizontal gaze nystagmus test ("follow my pen") has its limits if the driver has a visual condition like a lazy eye.

The bottom line?

It's generally advisable not to volunteer information or evidence that can and will be used against you in court, as per your Miranda warning. While the officer may still arrest you, this allows you time to contact your attorney before answering any questioning by the police.

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Moncks Corner, SC 29461

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