Home > Case Studies > DWI > Can a Driver Refuse a Field Sobriety Test in New York?

Can a Driver Refuse a Field Sobriety Test in New York?

by | Jan 25, 2023

In a case where a driver is suspected of operating their vehicle under the influence of alcohol, a preliminary breath test isn’t the only test a police officer might ask to administer. Part of the arrest process may include conducting field sobriety tests. These types of tests are designed to assess a driver’s balance, coordination, and reflexes. They are typically used to help law enforcement establish probable cause before making a DWI arrest.  

Types of Field Sobriety Tests

Field sobriety tests are entirely voluntary — you cannot be forced to take one if you are pulled over on suspicion of drunk driving. If you agree to the test, the police officer will provide instructions on how to perform it and look for evidence of impairment. But it’s important to understand that while officers are trained in conducting field sobriety tests, these assessments are not always accurate. There can be a number of factors that affect the reliability of a field sobriety test. 

The field sobriety tests commonly administered by law enforcement in New York include the following:

  • The Walk and Turn — With this test, the police officer will ask you to walk in a straight line, while making contact between your heel and toe. On your ninth step, you will have to pivot in a certain way. 
  • The One Leg Stand — This test requires you to stand with one leg on the ground while lifting the other a minimum of 6 inches off the ground. If you do not maintain your balance, the officer may count this against you. 
  • The Horizontal Gaze Nystagmus (HGN) — When conducting this test, the police officer will ask you to follow an object with your eyes. They will look to see whether your eye has a jerking motion.
  • Finger to Nose — In this field sobriety test, you must keep your eyes closed and use the tip of your index finger to make contact with the tip of your nose.
  • Romberg Balance Test — This test measures your balance and ability to remember the directions you were provided. You will have to stand with your feet together, hands at your side, with your head tilted back and eyes closed. You will be required to guess when 30 seconds have passed. If police notice any evidence of imbalance or failure to follow instructions, this can be used against you in a DWI case. 

Critically, there are many reasons a sober driver might fail a field sobriety test. Not only can these situations be stressful, but a driver may have a medical condition that can affect their ability to successfully perform the test. In addition, road surfaces, weather conditions, and footwear can impact the outcome of a field sobriety test. 

Are You Permitted to Refuse a Field Sobriety Test?  

A driver is under no legal obligation to participate in a field sobriety test. Unlike refusing a breath test, refusing to take a field sobriety test does not result in an automatic license suspension. New York is an “implied consent” state only for the purposes of breath tests — this rule does not extend to field sobriety tests.

Even though a driver is not legally required to submit to one of these tests, refusal to take a field sobriety test may be admissible at a DWI trial. Specifically, the prosecutor may try to argue that the refusal demonstrates a consciousness of guilt. But whether you took a field sobriety test or not, it’s crucial to be aware that they are extremely subjective. An experienced DWI defense attorney will know how to challenge the results of a field sobriety test if they were not in your favor.

Contact an Experienced New York DWI Attorney

If you have been arrested for a DWI, it’s essential to have a knowledgeable criminal defense attorney by your side to protect your rights and fight the charges against you. The DWI attorneys at D’Emilia Law offer experienced counsel and relentless representation for those who have been charged with DWIs and are committed to obtaining the best possible outcome for every client. To schedule a consultation, contact us at 1-888-DEMILIA.  

Field Sobriety Test
Drug Possession

What Defenses Can Be Used in a Drug Possession Case?

If you face charges for possession of a controlled substance, it’s crucial to understand that an arrest does not mean a conviction. While this offense is taken very seriously in New York, there are several defense strategies that can be used to fight the charges...
Marijuana DWAI

3 Important Things to Know About Marijuana DWAIs in New York

Many people are familiar with New York’s strict laws regarding driving under the influence of alcohol. However, it’s critical to be aware that the state also imposes harsh penalties on those who have been found guilty of driving under the influence of marijuana —...
DWI Mistakes

Common Mistakes to Avoid Making in Your DWI Case

A DWI is a serious matter in New York. While these situations can be stressful and overwhelming, many people are not sure what they should do or how they should proceed. Critically, there are certain mistakes that are commonly made which could impact your case and...
Impaired Driver Program

What is the New York State Impaired Driver Program?

A consequence of a DWI conviction in New York can be license suspension or revocation. Losing your license, even temporarily, can have a substantial impact on your life and livelihood. However, if you qualify for the Impaired Driver Program — formerly known as the...
DWI Attorney

5 Common Legal Defenses to DWIs in New York

A DWI is a serious criminal offense in New York that can come with life-changing penalties. If you’ve been charged with driving while under the influence of alcohol, it’s crucial to have an experienced DWI attorney who can fight the charges on your behalf. A skilled...

Is Self-Defense a Justification in New York?

New York law permits the use of self-defense, also referred to as “justification,” in limited situations. Notably, it is a defense that may be asserted in specific cases where the defendant’s use of physical force would otherwise constitute a criminal act. Cases...

Can You Challenge the Results of a Breathalyzer Test?

If you’ve been pulled over on the suspicion that you were driving under the influence of alcohol, the police will likely ask you to take a breathalyzer test to determine your blood alcohol concentration (BAC). Under New York’s implied consent laws, a driver is...

New York Launches “STOP-DWI Month” and “Don’t Drive High” Campaigns

New York State is notoriously tough on impaired drivers, and driving under the influence of alcohol or marijuana can result in serious legal consequences. Significantly, New York is cracking down on impaired driving with two new public awareness campaigns that were...

New York State Seeks to Implement Cannabis DWI Test

With the legalization of recreational marijuana in New York State, the New York State Department of Health is examining methodologies that can be used to detect cannabis-impaired driving. Unlike the technologies that can determine a person’s blood alcohol content in...

5 Common Myths and Misconceptions About New York DWIs

Being arrested for a DWI can be a stressful, scary, and overwhelming experience. Your liberty, reputation in the community, and professional standing are all on the line when you are facing drinking and driving charges. However, many people have various misconceptions...