DUI Charges in Virginia: Do I Have to Take a Field Sobriety Test?

A field sobriety test is an assessment that an officer makes at the point of arrest to, on a preliminary basis, determine if a driver is unlawfully intoxicated. Police officers in Virginia generally use three different types of field sobriety tests:

• The walk-and-turn
• The one-legged-stand test and
• The horizontal gaze nystagmus.

To be clear, none of these tests are mandatory. You have the right to decline to participate in any preliminary field sobriety tests. Your refusal to take a pre-arrest field sobriety test cannot be used as the basis to suspend your license nor can it be used against you in a criminal drunk driving trial.

Simply put, field sobriety tests are not sufficiently reliable. By definition, these tests are subjective. Not only are many officers under-trained on conducting these types, but there is no baseline performance for how well a driver “should” perform.

The unreliability of field sobriety tests have been well known for decades. The National Highway Traffic Safety Administration (NHTSA) conducted a comprehensive assessment of all three of the most common field sobriety tests used by state and local law enforcement departments across the country. For reference, studies suggest that police officers get it wrong about 30 percent of the time when using field sobriety tests—a significant margin of error.

A failed field sobriety test is not, by itself, typically enough to get a conviction in a DUI case. However, it can be used as evidence against you in a criminal trial. If you failed a field sobriety test, you are not necessarily out of options. An experienced Richmond, VA DUI defense lawyer can challenge the results.

More specifically, your lawyer can file a motion to suppress evidence, seeking to exclude the results of an FST from the courtroom. Alternatively, if the test cannot be excluded, a lawyer can also present other evidence, such as evidence of a medical condition, that could cast doubt on the reliability of the test. Regardless, it is important to take proactive measures to challenge a failed field sobriety test that may not be reliable.

It is important to draw a clear distinction between subjective pre-arrest field sobriety tests and post-arrest chemical tests. While pre-arrest field sobriety tests are not mandatory in Virginia, a driver who has been arrested has a legal obligation to submit to a breath test or a blood test—whichever one is selected by the officers.

Virginia has an implied consent statute (Code of Virginia § 18.2-268.3). Under Commonwealth law, all motorists who operate a vehicle on public roads have already consented to take a post-arrest chemical DUI test. If you decline to do so, you will be subject to immediate sanctions. Specifically, your license will be suspended at the administrative level. A first-time breath test refusal may result in a one-year administrative license suspension.

Beyond that, you can still face DUI charges in criminal court. The administrative action taken by the Virginia DMV is distinct from any criminal charges pursued by prosecutors. If you were arrested for intoxicated driving in Central Virginia and refused a breathalyzer, contact an attorney as soon as possible.

At Bain Sheldon, our Virginia criminal defense attorneys have extensive experience representing defendants in intoxicated driving cases. If you were arrested for a DUI after failing or declining a field sobriety test, we are here to help. To set up a strictly confidential, no obligation consultation, please contact our law firm today. We handle DUI cases throughout Central Virginia, including in Petersburg, Colonial Heights, Ashland, and Glen Allen.