NEW YORK DRIVING WHILE INTOXICATED: MOTORIST MAY REFUSE TO PERFORM FIELD SOBRIETY TESTS

Field Sobriety Tests (FSTs) are designed to test one’s physical abilities and well as their ability to divide their attention between multiple tasks or instructions. They are utilized by officers in making a decision to arrest a motorist for Driving While Intoxicated. In order to arrest a motorist for DWI, New York law requires that the police officer have probable cause to believe that the motorist had been driving in an intoxicated condition. FSTs are designed to aid the police officer in deciding whether he has probable cause to believe that the person is intoxicated. Most of us have seen the “walk and turn” test, the “one-leg-stand” test or the horizontal gaze nystagmus test (the “follow my finger” test) on videos, in the movies or if you have been suspected of driving while intoxicated and have been asked to perform them by the officer.
The question many ask is, “must I perform these tests?” It’s a very legitimate question. Should one attempt the Walk-and-Turn and One-Leg-Stand tests on the side of highway with cars passing at 55 mph in the middle of the night? Keep in mind; these tests are difficult for sober people to successfully perform. (That’s why judges will almost never allow a defense request that the officer show the court exactly how that officer demonstrated the test for the motorist – as the officer is required to do).
A motorist does have the right to refuse to perform Field Sobriety Tests however; the police have no obligation to inform the motorist of his or her right to refuse to perform the tests. People v. Sheridan, 192 A.D.2d 1057, 596 N.Y.S.2d 245 (4th Dept. 1993); see also People v. Capraella, 165 Misc.2d 639, 629 N.Y.S.2d 965 (N.Y.City Crim.Ct.,1995)(holding that the police have no obligation to inform motorist that they can refuse to perform field sobriety tests). However, one’s refusal to perform field sobriety tests is admissible at trial. People v. Berg
92 N.Y.2d 701, 685 N.Y.S.2d 906 (1999).
If you have been charged with Driving While Intoxicated in New York City, Westchester, Dutchess, Putnam or Rockland counties contact Tilem & Campbell toll free at 1-888-DWI-COUNSEL or visit us on the web at www.tilemandcampbell.com.