Many of our clients ask us – after the fact – if they could have refused the SFST. The answer is – yes, you have the right to refuse to perform the field sobriety test. But then they ask – does it make me look guilty if I refuse it? The answer is – it depends.
If you appear sober on the video while refusing to do it, if you give reasons that have nothing to do with alcohol, such as leg injuries [that we can back up with medical documentation in court], then your refusal to perform may not hurt your case, esp. if your breath or blood test was not very much over the limit.
Appearing Intoxicated and the Field Sobriety Test
If you already know you will appear intoxicated, or feel it could be interpreted that way just in interacting with the officer on the video, then it’s best to at least try some of the tests, as most prosecutors and juries give a defendant points for trying, for cooperating, and in many instances we can argue failed clues as due to some other cause esp. when we have a relatively low BAC – for ex., there are about 50 different causes of involuntary eye movement other than intoxication.
But in every case, the SFST or refusal to take it, has to be considered and argued in the totality of the facts, such as whether we have a breath and / or blood sample, how you appear in taped interactions with officers at the scene, drinking witnesses who can confirm how much you had to drink, and the reason for the initial stop – where the stop had nothing to do with bad driving, such as a headlight out, we’re in a better position with a refused SFST than where stop was for bad driving.
So every case is different but in general, prosecutors and jurors tend to be more forgiving of defendants who refuse to perform the SFST where there are good, verifiable reasons for the refusal and where the reason for the stop was not bad driving. Nevertheless – the average juror as a practical matter is sort of expecting the defendant to perform the tests and considers refusal to try as one strike against them in making them “look guilty”.
Bottom line – whether you did or did not take the SFST we will use all the available defenses to fight your case.
If you are charged with DWI in Houston, Harris County, or surrounding areas, contact Carl Haggard today for a free confidential consultation about your case. Carl Haggard, and The Haggard Law Firm, are ready to fight for you.