NO! When law enforcement officers direct you to perform the so-called field sobriety tests, they are not required to tell you that you can decline without penalty. The FSTs are completely optional for drivers who are 21 years or older and not on DUI probation.
The officer will tell you that he “needs” to do “some tests” to “make sure you are safe to drive.” First of all, the officer only “needs” food, water, and shelter; he “wants” you to do some “tests” so he or she can have an even better reason to arrest you – which he or she is already likely to do.
“Thank you, officer. However, the FSTs are optional, I am over 21 and not on DUI probation, so I will respectfully decline to perform any.” That is what you say.
The most common FSTs will have you walking an imaginary line, tilting your head back and touching your nose, and holding one leg out in front of you. Decline all of them.
The officer will, at some point, shine a light in your face and ask you to follow a pen or a finger with your eyes. Decline that one, too. It’s a trick. They are not looking for whether you can follow the pen or finger; they are looking for horizontal gaze nystagmus (HGN). HGN is an involuntary jerking of the eyes at a particular angle. While there are countless causes of HGN, law enforcement is only trained that alcohol is a cause and – whether they see it or not – they will claim it is there.
Be prepared, when you invoke your right to remain silent and don’t answer questions, and when you decline the FSTs, the officer will, more likely than not, arrest you. If here or she does, you must understand this: THEY WERE GOING TO ARREST YOU ANYWAY! The only difference is, now you have given them much less circumstantial evidence to use against you later.
