WHAT TO DO WHEN AN OFFICER ASKS YOU TO EXIT YOUR VEHICLE IN A SUSPECTED DWI/DUI CASE
At some point, the officer notices indicia of alcohol and/or drug use. He asks you to step out of the car. While you’re exiting the vehicle, the officer is studying your physical movements. He wants to see if you possess normal balance or if you’re wobbly and unsteady on your feet. Also, he wants to see if you use the vehicle to balance yourself as you’re exiting and after you’ve exited. Now that you’ve exited the vehicle, the officer asks you to submit to Standardized Field Sobriety Tests (SFSTs) and other physical coordination tests. These tests usually consist of three or more basic tests at the scene. They are the Horizontal Gaze Nystagmus, the 9 Step Walk & Turn and the One Leg Stand tests. These tests are known as divided attention tests. While many defense attorneys including myself dispute the reliability of these tests, in theory, these tests are designed to determine whether a person possesses, at the time of operation, adequate ability to safely and prudently operate a motor vehicle. You should note that even if you request an attorney, that alone does not prevent an officer from legally requesting that you submit to these SFSTs. Courts have ruled that once you request an attorney, officers must not seek to gather testimonial evidence against you. So what does this mean in practical terms? Testimonial evidence is spoken evidence. That means that once you ask to speak with a lawyer, an officer is not allowed to do or say anything that might reasonably get you to incriminate yourself by your words. However, an officer is not required to stop seeking physical evidence. That physical evidence may come in the form of breath, blood, saliva or urine or may come from an officer’s observations of a suspect’s performance on SFSTs.
CAN YOU REFUSE TO PERFORM SFSTs, SCREENING TESTS AND CHEMICAL TESTS?
You absolutely have the right to refuse to perform SFSTs. You also, have the right to refuse to take a Preliminary Breath Test (PBT) also known as an Alco Sensor test, which is a screening test that may provide an officer with probable cause to arrest. However, you should be aware that while you have a right to refuse to take a PBT, you can be charged with Vehicle & Traffic Law (VTL) section 1194(1)(b), which is a traffic infraction, for refusing to take the PBT screening test. Also, you have the right to refuse to take a chemical test of your blood, urine, breath and/or saliva. There is an exception in cases where a Judge signs a warrant to force a chemical test of one’s blood. But suffice it to say that you may refuse to take a chemical test as well in most circumstances. The one caveat that I will cover in a separate legal guide is that if you refuse a chemical test when an officer has reasonable cause to request you submit to one and the refusal is persistent, your refusal may result in a revocation of your driver’s license for a period of time.
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- Stay tuned for the next article and if we may be of assistance to you and your legal needs, feel free to contact the Law Offices of Luigi Vigliotti, P.C., at 516-385-2940, 631-861-0000 or online at www.vigliottilaw.com. We handle all types of criminal matters on Long Island (both in Nassau & Suffolk Counties) as well as New York City, we handle DWI, DUI and all vehicle and traffic matters as well. We have convenient office locations in Garden City, Smithtown, Hauppauge and the Hamptons. And remember that this article is not intended as legal advice. If you are seeking legal advice, you may contact my office and I will speak to you directly about your particular legal situation.