In Pennsylvania when a motorist is pulled over, the cop will walk up to the car and investigate what is going on. If that officer smells alcohol or other indications of intoxication, he will start the time-tested process of making the motorist get out of his or her car and ask them to perform “field sobriety tests”. These tests are typically the “walk and turn”, finger to nose”, ” horizontal nystagmus gaze test” and the portable breath test.
Two important things about portable breath tests in PA.
- The tests can only be used to establish “probable cause” to arrest someone; and
- No one is required by law to do them.
Of course, a police officer will not tell a motorist at the scene of the above. That is most of the reason why I am writing this blog and hoping that the information gets out to people. More about the above. We we talk about “probable cause”, it means “probable cause to believe that a motorist is operating a motor vehicle “after consuming alcohol the point where they cannot operate a motor vehicle safely”. When a cop completes a series of field sobriety tests and then concludes, based on those tests, that they cannot drive because they have consumed to much alcohol, that motorist is going to get arrested for DUI.
Now that we know the above, and how crucial it is in a DUI investigation, it is reasonable for a driver to know where it says on Pennsylvania law does it say that a driver is required to do these tests. And that is a perfectly reasonable question. The answer is that there is no law that compels a motorist to perform the tests. Its completely voluntary on behalf of the motorist. A motorist, even as it pertains to the portable breath administered at the scene, is not required to comply with a police officer’s request to submit to any type of field sobriety testing. So why does everyone do them? Simple.
It is human nature for citizens to comply with the requests of a police officer. Most of us are taught from a very young age to respect authority. We do have he best law enforcement in the world and they do a great job. It is for this reason, along with the failure of a cop to explain to a motorist that they do not have to perform sobriety testing, that most drivers do it. Simply put, people think that if they refuse the request of a cop to do something that they are doing wrong and in the vast majority of cases they are right. But not in the case of field sobriety tests. As a Montgomery County PA drivers license lawyer, I have had case clients that have been stopped and have just flat out refused to do field sobriety testing for a police officer. This accomplishes two things: it makes the cop angry and it gives them less evidence with which to arrest the motorist with. Sometimes, the refusal to do field sobriety testing gives, as a lawyer, a defense with which to exploit my client. In conclusion, am I advising people not to perform field sobriety testing when it is requested by a cop? Well, I would not counsel anyone to disobey a cop. But now, if you’re this in its entirety, you know you’re rights regarding this type of testing and at least one can make a decision for themselves.