Often times, new and prospective clients ask, "Did I have to take the field sobriety tests?" And, for good reason: usually folks are unsure of how these tests will ultimately affect their case and whether their performance will be helpful in their defense. Let's discuss exactly what field sobriety tests refer to and whether you must take them.
Field Sobriety Tests
In Georgia, most officers are trained on 3 main, NHTSA validated field sobriety tests to include the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one leg stand test. You will know if you took the HGN test because it's the one where the cop moves a finger or pen in front of your face for what seems like an eternity. The walk and turn and one leg stand are pretty self explanatory; you usually walk a line and shift around with one leg in the air for as long as possible. In addition to these 3 validated tests, cops also use other, more simplistic tests like reciting some array of letters or counting a randomly selected group of numbers. Think E-U or 77-59, for example. Sometimes if impairment by drugs, including marijuana is suspected, cops will have you do what is called a "modified Romberg test" and/or lack of convergence test. These two tests are looking at eye movements, muscle coordination, and attempting to test you internal clock and awareness. Finally, if alcohol impairment is suspected, most cops will ask you to blow into a PBT, or preliminary breath test. Usually, folks are told something about how the PBT device does not give a number, but only a positive or negative result- which isn't true- the device does give a number, though it is generally not admissible in court.
Cops will make their DUI arrest decision based on some, or all of these tests, if you take them. So... do you have to submit to, or participate in these tests?
Refusing Field Sobriety Tests
While cops in Georgia do not have to inform you that field sobriety tests are voluntary, you do not have to submit to them. But, most folks do. Nerves, the desire to please, and to mitigate the situation, along with, perhaps, a false sense of being able to ace the tests and convince the cop of your innocence all play a role in peoples' decision to run themselves through the sobriety test grinder. However well you may think you performed, I can usually count on a hand or two how many clients annually "pass" any one of these tests. You don't know the criteria to pass, and if you did, you would never agree to these tests.
So, the next logical question is whether or not your refusal to take these tests can be held against or used against you. In years past the on-the-fly answer was yes, but, there is now hope. In October 2020, the Georgia Court of Appeals issued the Bradberry decision which basically says that under Georgia's Constitution, you have the right to not incriminate yourself and that being compelled to blow into a PBT (preliminary breath test) involves such an incriminating act. The Court also held that under the Georgia Constitution your refusal to submit to such an act can not be held, or used, against you. This case was an expansion of other recent case law discussing the constitutionality of other types of DUI testing in Georgia, including blood, breath, and urine tests.
While the Bradberry case only addresses blowing into the PBT device, the next logical push by us defense attorneys is to have this protection expanded to the other roadside sobriety tests. Think about it, they all require a subject to "act," whether it be following some stimulus, walking a predetermined test, or shuffling around on one leg. These are all acts, and all incriminating. The future should provide rulings that further expand this line of thinking and the protections afforded by the Georgia Constitution to all sobriety tests.
Why Zeliff Watson is Your DUI Defense Team
At Zeliff | Watson, our team commits their practice to defending citizens accused of crimes, including DUI. We stay up to date on the latest developments that could have a real impact on your case and your ability to successfully defend yourself in court. If you are facing DUI charges in Forsyth County, Metro Atlanta, or surrounding north Georgia counties, give our team a call today to discuss the next steps in building your defense. Whether you took field sobriety tests, refused them, or somewhere in between, we know how to effectively put your case together and advocate for you. Use our contact form or call us at (770) 676-1340 to speak to us 24/7.