If you are stopped by the police while driving your vehicle, e.g. for speeding, and the officer smells any alcohol on your breath, he will most likely ask you a few preliminary questions and then ask you to exit your vehicle in order to submit to a series of field sobriety tests (the most common tests are 9 step walk and turn, one legged stand, finger to nose, count numbers or recite portions of the alphabet).

The Fifth Amendment tells us that we do not have to give evidence against ourselves. So, when the officer asks you preliminary questions about consumption of alcohol, you have a right to say ” I don’t want to be rude but I think I’ll just give you my license and registration”. When the officer asks you to exit your vehicle, you may say ” I don’t want to be rude but I think I’ll decline your offer”. The officer may then state ” Well, if you don’t do the tests I’m going to have to arrest you”. It’s your call at that point but you have the legal right to decline tests.

Many of us think that we are great athletes and that we can pass these tests. You may be a great athlete but, unknown to you, the tests are designed to have 90 plus % (my opinion) of you fail. In the 1980’s the Supreme Judicial Court ruled that if an officer releases a person after smelling alcohol, and that person later hits another person or property, the officer may be sued in Superior Court with an Assistant Attorney General as his lawyer. It was a very questionable decision because it took away a substantial amount of an officer’s discretion and indirectly hinted to police to decide between a potential lawsuit vs. arresting those who smell of alcohol, even though it is legal to consume some alcohol and operate a vehicle in Massachusetts. In order to protect officers from questionable lawsuits, the field sobriety tests were tightened up (my opinion) so that an officer could justify an arrest, and avoid being sued, by finding only two clues or “tells”. In other words, one slight sway and being slightly off a line is enough to meet the “two tell” protocol. But again, don’t blame the police- a 1980’s court put them in that difficult position.

If you decline field sobriety tests and are arrested, you still can take the breathalyzer test at the station, if you are comfortable with your sobriety. If your test result is .00-.05, you are presumed Not Guilty and the police should rip up the paperwork and release you. If you have any questions, please call me. Doug Stoddart 508-243-4877.