Within circles of drunk driving defense discussion the concept of a “refusal” is often the center of debate. However, in most circumstances this discussion revolves around the issue of one’s refusal to submit to a breath test for intoxication as opposed to a refusal to submit to field sobriety testing.
Field sobriety testing in combination with breath or blood draw results are often critical components necessary for a prosecutor to secure a dui conviction. Understanding this evidentiary reality, implied consent laws have been enacted throughout America as means to compel those suspected of dui to provide breath samples voluntarily during the course of an investigation. Where mandatory license suspensions for breath test refusals were not deemed a sufficient sanction by which to compel breath testing, states such as Indiana have adapted procedures for expedient search warrant authorizations to force blood draws on those unwilling to provide breath samples. (Unlike many other states at the present time)
For law enforcement, obtaining field sobriety results can be more problematic from a suspected impaired driver unwilling to cooperate. Performed in many instances by the side of a roadway in fluctuating surface and weather conditions, suspected drunk drivers may find themselves at the mercy of a police official utilizing a subjective asessment as to whether an individual has exhibited impaired coordination or “nystagmus” (an involunary jerking of the eye).
From years of experience I can speak to the reality that the range of competence and training among those in law enforcement testifying to such results can be varied to say the least. The testifying cop who has been on patrol for over thirty years may have been successful in maintaining his employment for many years, yet the ability to receive a consistant paycheck does not always equate to competent police work.
As a result, many have asked me over the years whether there are alternatives to submitting to the testing assessed by one who may have a pre disposed motivation to arrest one for drunk driving. For example, many have expressed dismay in relaying that a cop’s investigation consisted of thrusting an inadmissable portable breath test in one’s face, found the test allegedly above .08, and merely used any attempt to acquire field sobriety results as a means to incriminate as opposed to making an impartial assessment as to potential driver impairment.
At present, there is no law in Indiana that imposes a sanction against a suspected drunk driver who refuses to submit to field sobriety testing. A mandatory license suspension will not be potentially imposed as is the case for refusing to submit to a breath test.
With this reality mind, from a strategic standpoint, I cannot dissuade one from the belief that submission to field sobriety testing in Indiana is most often against one’s best interests. Of course while there are always exceptions, effective legal defense is the biproduct of a cost benefit calculation as to the legal ramifications of each course of action.
While there exists a clear rationale behind why one must strongly consider whether refusing a breath test is appropriate, the same cannot necessarily be said in the area of field sobriety test submission in Indiana. If one is confident that they are not impaired to the extent that submitting to such testing is a means to avoid further inquiry then by all means consider it. However, for those who choose to refuse to submit to such testing fearing the impartiality of an officer investigating you or someone you care for, the present laws in Indiana may be on your side.
*Please be advised that laws in Indiana are always subject to change. It is always prudent to consult at no cost with an experienced owi lawyer in Indiana to help guide you as to your best course of action based upon the most up to date legal information.
