July 15, 2022 by Anthony Riccio
In Massachusetts, when a law enforcement officer stops a vehicle and suspects a driver of operating under the influence (OUI), the officer may request the driver submit to some tests to help the officer determine if the driver is indeed impaired and should be arrested. A driver does not have to submit to field sobriety testing and may refuse to participate in any tests. If a driver submits to field sobriety testing, the officer can interpret the results as justification for an arrest and may later testify to what was observed during a criminal prosecution. If a driver refuses field sobriety testing, an officer may later testify to that as well but will not have the additional observations that might support an OUI conviction.
Before a law enforcement officer can arrest a driver for suspicion of OUI, the officer must make a determination that the driver’s ability to drive is impaired due to the consumption of drugs or alcohol. In order to make a determination of impairment, an officer will make general observations about the driver and may request the driver submit to some standardized tests, the failure of which the officer will use to establish probable cause for an OUI arrest.
A driver who agrees to field sobriety testing will typically be asked to perform up to three of the following tests:
While the tests themselves may be standardized, they do not take into consideration individual capabilities to successfully perform the tests with or without having consumed an impairing substance. Furthermore, the success or failure of a driver’s performance is subject to interpretation by the officer administering the tests.
Some people may not be aware that there can be two different breathalyzer tests that drivers are asked to subject themselves to. Most police officers carry portable breathalyzers in their patrol cars. If an officer requests a driver blow into a portable breathalyzer and the device indicates a blood alcohol concentration (BAC) over the legal limit of .08, the officer has probable cause to arrest the driver on suspicion of OUI.
However, the results of the portable breathalyzer cannot be used to convict a driver of OUI. When the driver gets to the police station, a second breathalyzer test is given, and the results of the second test are considered credible and can be used in the prosecution of the driver.
There are no negative consequences for a driver who refuses to submit to a field breathalyzer test. But there are penalties imposed on a driver who refuses to take a breathalyzer test administered at the police station. As a condition of granting a Massachusetts driver’s license, drivers consent to being given the second breathalyzer test. Refusal to take the test results in an immediate license suspension of at least 180 days. Longer license suspension periods are imposed if a driver is under 21 years old or has prior OUI convictions.
People must remember that it is not illegal to drive after drinking. What is illegal is having consumed so much alcohol that a driver is not able to safely operate a motor vehicle. This is what a police officer is trying to establish when a stop is made on suspicion of OUI.
Submitting to sobriety testing during a traffic stop is voluntary. The less voluntary information a driver provides to a potential arresting officer, the less information the officer has to rely on to support an arrest or a conviction.
When a driver refuses to take any field sobriety tests, an arresting officer has only minimal observations of a driver’s conduct to justify an arrest. Typical observations by an arresting officer may include:
Refusing to take field sobriety tests probably won’t keep a driver out of the back of a police car but may enable the driver’s attorney to deliver a more successful defense to OUI charges.
Refusing to take field sobriety tests will not be of any assistance if a driver later blows a breathalyzer result at the police station that is at or above the legal limit for intoxication. The breathalyzer test results (unless they can be successfully challenged for some other reason) will be enough to get an OUI conviction.
But many times, the breathalyzer result shows a level of intoxication below the legal limit. That means to get an OUI conviction, the prosecution must prove (beyond a reasonable doubt) that a driver was driving while impaired by alcohol and must do so without the benefit of scientific evidence.
When a breathalyzer result is below .08, and there were no field sobriety tests performed, the prosecution’s case is based solely on the observations of the arresting officer and perhaps other witnesses. A good criminal defense attorney will take each fact upon which the prosecution’s case relies and come up with as many alternative explanations as possible to cast doubt on the prosecution’s conclusions.
An accused driver with bloodshot eyes may have been up at night with a sick child and not slept well for several days. The odor of alcohol may mean only that the driver had a drink which is not illegal. Empty alcohol containers don’t prove who drank them or when. A driver who stumbled or tripped getting out of a car may have stepped on uneven ground or may have physical issues that cause balance problems when walking. If the driver swerved suddenly prior to being stopped, it might have been to avoid an object on the road or as a reaction to something done by another motorist.
Refusing to take field sobriety tests does not guarantee a successful defense against OUI charges but without the additional testimony regarding a driver’s behavior, the prosecution may have a harder time building its case and an accused driver may have an easier time defending the charges.