Cedar Rapids OWI Lawyer: Are standardized field sobriety tests voluntary?
by David A. Cmelik Law PLC
Standardized field sobriety tests are voluntary. You are not required to perform the Horizontal Gaze Nystagmus, the Walk and Turn, the One Leg Stand, nor, technically, the Preliminary Breath Test. You’re not required to perform the DRE tests nor submit to drug recognition expert (DRE) interviews or paramedical exams like heart rate and dental and tongue inspection.
However, there are some things you should know about the administration of these voluntary tests. First, it’s difficult to say “no” to a law enforcement officer who uses clever language to “ask” you to step out of the car and perform SFSTs “to make sure you’re safe to drive.” This is an individual choice based on a test subject's concerns and state of mind. While the law recognizes these are voluntary tests, the officer will become more insistent, e.g., “why don’t you want me to see if you’re safe to drive?” However, remember, the test subject and motorist is a target at this point. From the moment an officer smells the odor of an alcoholic beverage and most certainly if they smell the odor of marijuana, the motorist will at least be detained and likely arrested.
Second, law enforcement trained and certified to administer SFSTs in the State of Iowa ask you whether there are any physical disabilities, including natural nystagmus or problems with your legs, back, or ankles, that would interfere with the performance of the tests.
Hard charging officers will gloss over these disabilities because what they are really asking for when they ask these questions is for you to rule out false positives later should you litigate the requisite reasonable grounds to request a preliminary breath test or invocation of implied consent to request a Datamaster DMT or other bodily specimen.
So they are likely to give very little consideration to your protest that your back, legs, or ankles are likely to contribute to poor performance. In that situation, trained officers have the discretion to move on to the next test because of a physical impairment. However, especially cagey officers will say, “oh, okay, thanks for telling me that,” and just continue with their instructions and demonstration of the next SFST. It’s your choice whether you reiterate your concerns.
Third, the preliminary breath test, or, portable breath test, PBT, is also voluntary but it carries with it a couple of different caveats: (1) the result of the PBT, even as to the presence of alcohol, cannot be presented to the jury but can be presented to the judge to determine the admissibilility of the later, more reliable Datamaster DMT, blood, or urine test at the stationhouse; and (2) if you refuse the PBT, by the time the officer gets that far, you will certainly be arrested as all officers interpret Iowa Code § 321J.5 to mean that PBT refusal always results in an arrest. The law really says that if the officer otherwise has reasonable grounds to believe that a motorist is intoxicated and that motorist refuses a PBT, the officer may invoke implied consent and request a Datamaster DMT or other bodily specimen at the stationhouse.
If you or a loved one has been arrested for Operating While Intoxicated (OWI) in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, commonly called DUI in other States, contact David A. Cmelik Law PLC at https://www.daclawfirm.com. However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the internet does not establish an attorney-client relationship.
The suspicion that it is nearly impossible to "pass" SFSTs has a nugget of truth. The tests are not pass/fail as some officers attempt to argue. However, for example, the Walk and Turn is not 100% in correlating two so-called "clues," or signs, of impairment to a BrAC over the presumptive legal limit of intoxication of .08 g ETOH/210 L breath. In other words, at least some of those who perform the WAT and present two or more such signs are below the presumptive legal limit of intoxication. If you or a loved one has been arrested for OWI (DUI) or other offense in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC 319-389-1889. Photo: NHTSA DUI manual.