I Was Pulled Over Under Suspicion For DWI And Now The Police Want Me To Do Field Sobriety Tests (FST’s) And A Preliminary Breath Test (PBT) – Do I Have To?
During an investigatory stop, an officer may order the driver (and any passengers) out of the vehicle. State v. Askerooth, 681 N.W.2d 353, 367 (Minn. 2004); Maryland v. Wilson, 519 U.S. 408, 412 (1997). They can also place you in their squad car while investigating without turning the stop into a formal arrest if the situation calls for it. State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990). If need be, a police officer can open your car door to effectuate this. State v. Ferrise, 269 N.W.2d 888 (Minn. 1978). However, if they have to, there is a fair chance that you will be charged with obstruction of legal process.
A police officer needs reasonable articulable suspicion that a person has been driving while impaired to ask you to complete field sobriety tests. However, they cannot force you to do field sobriety tests. You have an absolute right to refuse to do the field sobriety tests. However, when an officer is establishing probable cause to arrest someone for driving while impaired, your refusal to comply with the testing is relevant to their analysis. Meaning, they can’t make you do the test, but, if you don’t, they will likely assume you have been drinking and use your refusal to justify an arrest. An officer only need a single “indicia of intoxication” to establish probable cause to arrest you, and in many situations they already have this when they ask you to do the test. As a result, successfully completing the field sobriety tests does not prevent an officer forming probable cause to arrest you if there is other indications of impairment (smell of alcohol, admission, slurring, poor driving, etc.) Reeves v. Comm’r of Pub. Safety, 751 N.W.2d 117 (Minn. Ct. App. 2008). One other factor to consider is when proving a driver is driving under the influence, they largely rely on their interpretation of your performance on the field sobriety tests.
Similar standards apply when an officer requests you complete a preliminary breath test (PBT). At this point, the officer likely has enough to arrest you. A PBT only helps the officer determine probable cause, and it is not proof of your ultimate blood alcohol concentration. Like the field sobriety tests, you can refuse to take a preliminary breath test (refusal to take the “official” test at the police station following an arrest is a crime). However, as with field sobriety tests, the officer will likely use your refusal to establish probable cause. Importantly, a PBT may be administered even if the officer is unsure whether you are under the influence so long as they have a reasonable articulable suspicion that you are under the influence. When you go to the station you will have an opportunity to contact an attorney and most attorneys will ask what the result was. Although you do not have to take the PBT, we recommend you comply with this. Just remember the PBT is the preliminary breath test on the side of the road, it is not the formal test taken at the station.