A  lot of my DUI clients tell me they agreed to to take the “voluntary” filed sobriety tests (FSTs) offered by the law enforcement officer because they wanted to appear “cooperative” or simply didn’t understand that they had every right to decline to submit to those tests.  Unfortunately, I then have to inform those folks that what they may have done by agreeing to perform FSTs is give the officer the evidence he or she needed to arrest and eventually convict them of DUI.

FSTs are Voluntary

“Like blood alcohol and Breathalyzer tests, it is undisputed that in Washington, FSTs are voluntary and a Driving Under the Influence suspect has no legal obligation to perform an FST.” That’s what the Washington Supreme Court said in 1999 in Seattle v. Stalsbroten. (138 Wn.2d 227).  Unfortunately, law enforcement officers have become exceedingly good a getting folks to do them anyways. Often using lines like ‘Would you mind doing some voluntary tests to make sure your OK to drive?’ or ‘I’m going to have you step out of the car to do some voluntary tests for me. OK?’  These ‘invitations’ to perform ‘voluntary’ tests bury the term “voluntary” by using it as an adjective to the word “test” (voluntary tests) rather than as an adverb describing the subject’s willingness to take the test.  It would certainly be simpler to ask if the person will volunteer to submit to the tests or simply warning the tests are in fact voluntary and may be used against them in a court of law like the Miranda warnings required to be given to suspects when they are under arrest.  Alas, our courts simply don’t require such warnings and have accepted the ways in which officers convince folks to take the tests so that they can be on their way. Unfortunately, that almost always means on their way to jail.

Is there a Downside to Refusing?

Unfortunately, the very same case that says that FSTs are voluntary also says that your refusal can be admitted as “consciousness of guilt” evidence.  But in most cases, that may be preferable to the biased testimony of an officer who’s probably already put off by your declining his request to obtain incriminating evidence.

So what do I do if I’m stopped and have been drinking?

While the best advise is to walk home, take a taxi or have a friend drive, if you do find yourself stopped late at night after you’ve had any alcohol to drink, even if you don’t feel impaired, here’s what you should do:

1.  Be polite.  Being rude to a law enforcement officer is almost never helpful.

2.  Don’t assist in your own conviction.  Being polite and cooperative doesn’t mean waving your rights.  Don’t agree to perform FSTs.  Don’t submit to a portable breath test (PBT).  And don’t answer any questions.

3.  What do I have to do?  When the officer asks for license and insurance you must provide it.  If he or she asks you to exit the vehicle you must do so.  If you’re place under arrest, be compliant.

4.  What should I do after I’m arrested? The first words out of your mouth after you are placed under arrest should be “I want to speak to a lawyer”.  That statement should end all questioning and put off further requests for testing until you are put in touch with an attorney.  If you don’t have an attorney or its late at night or on a weekend and your attorney’s office isn’t open, you should be given the option of speaking with “on-call’ public defender. TAKE IT.  The public defender is a real attorney who usually has lots of experience speaking with folks in your position.  Even if you plan to hire counsel later, take advantage of the free attorney who can advise you NOW.

It bears repeating that the best pl;an is to not put your self in that position to begin with.  But if you do find yourself in that scary and difficult place, remembering these steps may lessen the pain or avoid it altogether.