Do I Have To Do DUI Field Sobriety Tests (FSTs) In Virginia?

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by | March 12, 2021

You are not required to perform Field Sobriety Tests (FSTs) if you are suspected of DUI.

If you are stopped for DUI, you may be asked to do Field Sobriety Tests, and the Officer may even suggest that you can prove your innocence by doing them. This can be risky. There are three widely accepted, or Standard, Field Sobriety Tests (SFSTs) approved by the National Highway Traffic Safety Administration (NHTSA).

  1. Horizontal Gaze Nystagmus (HGN)
  2. Walk And Turn (WAT)
  3. One Leg Stand (OLS)

The HGN is the test you may be familiar with where the Officer passes a pen or similar object in front of the subject’s face, and instructs them to follow it with their eyes. They are looking for “nystagmus” or small involuntary shaking/jerking of the pupils/eyes as the eyes scan back and forth, as well as when that shaking sets in.

The Walk and Turn is the test where an Officer will instruct you to take some amount (9 is common) of steps in a straight line, heel-to-toe, turn around in a set way (commonly by taking many small steps/pivots), and then going back. They are looking to see if you can maintain your balance, take the correct amount of steps, consistently touch heel-to-toe, and importantly, listen to instructions. They will also commonly have you stand heel-to-toe while they give instructions, to divide your instructions.

The One Leg Stand requires you to stand on one leg, with the other raised 6 or so inches off the ground. You are expected to balance like that, keeping your arms at your side, while counting to 30 by “One-one thousand, two-one thousand, three-one thousand” etc. This is also meant to divide your attention between counting, and the task at hand. The officer will be looking to see if you put your foot to the ground, and if you raise your arms above your waist, as long as your ability to follow the counting instructions.

While these tests are backed up by some science and studies, they are also very heavily subject to the capability of the Officer, and are sensitive to non-ideal conditions: cars and sirens and other stimuli affecting your eyes and distracting you, any tiredness or physical fatigue you may be experiencing. They are become much less reliable when they are not administered absolutely correctly.

Those are the three “Standard” tests. Other tests include being asked to recite (not sing!) the alphabet, but starting from a letter other than A, and ending at a letter other than Z, or counting up and down your fingers, touching your thumb to each “1-2-3-4-4-3-2-1”.

You have every right to refuse these tests (and to decline to answer any questions).

Do I Have to Do a Breathalyzer?

If you are suspected of DUI, you may be offered a Preliminary Breath Test. This is the handheld machine an Officer may use on the side of the road.

This test is not mandatory, and you may refuse it. In fact, while the results may be used in court to determine Probable Cause, they cannot be used to establish your guilt.

However, under Virginia law, you are required to perform a Breath Test at the Police Station that is official, and those results can be used against you in Court. Refusal of that test is a separate charge from DUI, and carries it’s own penalties. The first offense results in an administrative suspension of your license. The second offense is a Misdemeanor.

Our Criminal Defense attorneys have experience litigating DUIs across Northern Virginia, Contact Us to see how we can help you.

Should I Talk to the Police?

When you are involved in a Police investigation, it is generally best not to speak unnecessarily. Putting aside a routine traffic encounter where some pleasantries may be appropriate, you do not need to speak to the police other than to identify yourself if asked.

For many people who do not have occasion to interact with Police too often, it can feel unnatural, rude, or otherwise wrong not to talk to a person who is asking you questions. But Police interactions are different than any other, and there is nothing wrong with simply remaining silent. You may wish to express that you don’t want to answer and questions, or you may simply remain silent.

You cannot talk your way out of most Police encounters. If you are going to be arrested, or already have been, you cannot convince an officer to let you go. But by talking and trying to explain yourself or anything similar, you are likely to make incriminating statements – even if they seem innocuous, and even if you are totally innocent.