Many drivers are frequently finding themselves in the position of driving late at night after consuming alcohol, only to be pulled over for a traffic violation. If during the investigatory stop, the officer detects even a slight odor of alcohol, the driver is asked out of the car to perform field sobriety tests and conduct a portable breath test. Many drivers do not know what to do in such a situation. Instinct will tell them that compliance with the police officers instruction may make the process go quickly and smoothly. However, complying with a police officer’s request could result in potentially incriminating evidence against the individual.

A driver can be pulled over for any driving violation, such as improper lane usage, speeding, or driving erratically. Such stops constitute “probable cause.” Once the officer stops the vehicle, he will look for clues of intoxication, specifically odor of alcohol, bloodshot and/or glassy eyes, slurred speech, or fumbling while retrieving a driver’s license. If the officer observes signs of intoxication, the driver will be asked out of the vehicle to perform field sobriety tests and a portable breath test. Should the driver comply with the officer’s request, or refuse all tests?

There is no penalty for refusing all field sobriety tests or the portable breath test. Usually, the police officer will instruct the driver that the portable breath test is inadmissible in court as proof of intoxication. Although the portable breath test is inadmissible at trial, it is admissible for the limited purpose of showing probable cause for the arrest. The most common field sobriety tests are the “one-leg stand,” “walk and turn,” and HGN tests. The determination of whether the individual passed or failed depends upon the officer administering the test. As such, by refusing all tests, the individual will leave it to the officer to make the arrest based on the driver’s speech and demeanor.

Once a driver is placed under arrest and taken to the station, he will be given the opportunity to take another breath test known as a breathalyzer. Unlike the portable breath test, the results of the breathalyzer are admissible in court. Also unlike the portable breath test, there is a penalty of a suspension of driving privileges for refusing the breathalyzer. When an individual gets arrested for driving under the influence of alcohol, they are subject to a statutory summary suspension of their driver’s license. The length of the statutory summary suspension will depend on whether the driver complied with the officer’s request for the breathalyzer test. Acquiescing to the officer’s request will reduce the potential statutory summary suspension to 6 months, compared to the 12 month suspension for refusal. (Note: The suspension periods are greater for repeat offenders). However, the potential downfall is that the driver can blow over the legal limit of .08 and strengthen the prosecution’s case. As a result, the individual is faced with an important decision; blow into the machine and receive a shorter suspension, or refuse to take the breathalyzer and incur a longer suspension in the hopes of reducing the chance of a criminal conviction?

Since there is no “bright line” test to determine if a driver should perform the PBT and breathalyzer, it must come down to the judgment of the driver. If the driver has not had any alcohol, or is sure to blow under .08, then it might be beneficial to take the portable breath test or the breathalyzer and get evidence that weakens the chances of a criminal conviction. If however, there is any uncertainty on the part of the driver, then it might be in the driver’s best interest to refuse all tests and prevent any further incriminating evidence.