Field Sobriety Tests and Chemical Tests Consent

[vassock]

My question involves criminal law for the state of: New York/New Jersey

What are the laws regarding consent to chemical tests and FSTs?

1. If stopped by police, am I required to submit to the Field Sobriety Test? If not, can I just refuse?
2. If stopped by police and asked to take the portable chemical breath test, am I required to take that test or can I ask to take the more reliable chemical test at the station (breath, blood or urine)? If not, then how would I ask to take the test at the station and are there any penalties associated with doing that?

[cyjeff]

1. You can refuse. It will lead to you being tested immediately and placed in the back of a police car.
2. You can refuse. It is a free country. Be prepared to immediately be cuffed and stuffed into the back of a police car to go to the station for the test. Make sure you state clearly that you are NOT refusing a test... you are simply asking to be tested at the station. Refusing a test at all carries some pretty strong penalties.

the entire reason that police officers do field tests is to avoid taking sober people to the station for testing. As far as I know, the portable testing equipment will always be supplemented by the more reliable tests at the station.

[Mr. Knowitall]

The primary purpose of FST's is to obtain probable cause for chemical testing. The consequences of refusing to cooperate with the police during a traffic stop, and of refusing chemical testing for which they have probable cause, are significant. You can expect, for example, a driver's license suspension based upon the refusal of chemical tests. In some jurisdictions the police will get a warrant for a blood draw and take blood, if necessary, by force.

There's no hard-and-fast rule, as laws vary by state, but if you have a prior (or priors) and are afraid of the consequences of getting caught driving again, you can talk to a lawyer in your jurisdiction about whether you should refuse to cooperate on the assumption that the chance of preventing the collection of evidence necessary to convict of a habitual drunk driving charge will make it worth the administrative penalties your refusal will trigger.

[aardvarc]

New York has some fun and quirky laws regarding drinking and driving. Refusal to test can be used by the prosecution as "consciousness of guilt" evidence in a criminal case against you.

Refusal also means that you need to have a ride home lined up and money in your pocket to pay for the towing and storage fees for your vehicle (or another driver with a valid license and no suspicion of DUI with you). Read the little tiny fine print on your driver license. Refusal means the officer puts your driver license in their pocket to turn over to the Administrative Law Judge as part of a civil case where you can expect your DL to be suspended for one year, the potential for up to $500 in fines, (plus assessment fines which work out to $250 a year for 3 years).

[vassock]

1. You can refuse. It will lead to you being tested immediately and placed in the back of a police car.

I've done some reading on the matter and most say that the FST is just there for the purpose of collecting evidence against the suspect. By the time the cop asks for the FST, he has already decided to arrest you. A few extra moments of "freedom" are not worth the hours or days you'll spend in court explaining that your "poor" (determined arbitrarily by the policeman) performance on the FST was a result of poor balance and not intoxication. My reason for asking was to find if there was any case law either punishing people for refusing to take the FST (not to be confused with any chemical tests) or specifically allowing people the right to refuse and protecting that right under the fifth amendment.

2. You can refuse. It is a free country. Be prepared to immediately be cuffed and stuffed into the back of a police car to go to the station for the test. Make sure you state clearly that you are NOT refusing a test... you are simply asking to be tested at the station. Refusing a test at all carries some pretty strong penalties.

the entire reason that police officers do field tests is to avoid taking sober people to the station for testing. As far as I know, the portable testing equipment will always be supplemented by the more reliable tests at the station.

So if I ask for the Breathalyzer test at the station instead of the portable breath test when asked to perform the portable breath test, I will not be in violation of the implied consent law or any other law?

The primary purpose of FST's is to obtain probable cause for chemical testing. The consequences of refusing to cooperate with the police during a traffic stop, and of refusing chemical testing for which they have probable cause, are significant. You can expect, for example, a driver's license suspension based upon the refusal of chemical tests. In some jurisdictions the police will get a warrant for a blood draw and take blood, if necessary, by force.

Don't mix up the FST or the portable breath test with the breathalyzer at the station. They are completely different requests governed by different laws. The fifth amendment generally protects against self-incrimination except where it is overridden by contrary laws, such as the implied consent law regarding the breathalyzer.

There's no hard-and-fast rule, as laws vary by state, but if you have a prior (or priors) and are afraid of the consequences of getting caught driving again, you can talk to a lawyer in your jurisdiction about whether you should refuse to cooperate on the assumption that the chance of preventing the collection of evidence necessary to convict of a habitual drunk driving charge will make it worth the administrative penalties your refusal will trigger.

What are the administrative penalties?

New York has some fun and quirky laws regarding drinking and driving. Refusal to test can be used by the prosecution as "consciousness of guilt" evidence in a criminal case against you.

Refusal to test what? Are you talking about the FST, the portable breath test or the chemical test at the station?

Refusal also means that you need to have a ride home lined up and money in your pocket to pay for the towing and storage fees for your vehicle (or another driver with a valid license and no suspicion of DUI with you). Read the little tiny fine print on your driver license. Refusal means the officer puts your driver license in their pocket to turn over to the Administrative Law Judge as part of a civil case where you can expect your DL to be suspended for one year, the potential for up to $500 in fines, (plus assessment fines which work out to $250 a year for 3 years).

Refusal of which test? The FST, portable breath test or station chemical test?

[Mr. Knowitall]

Don't mix up the FST or the portable breath test with the breathalyzer at the station. They are completely different requests governed by different laws. The fifth amendment generally protects against self-incrimination except where it is overridden by contrary laws, such as the implied consent law regarding the breathalyzer.

I know a lot more about this subject than you do. If you believe I was confusing FST's or PBT's with an in-station test, it's because you either didn't read carefully or didn't understand what I was saying. You also don't appear to have any understanding of implied consent as it relates to drunk driving.

What are the administrative penalties?

They vary by state; you have a theoretical situation involving two states; Google is your friend. I'll reiterate: If you want advice on when it might benefit you to refuse to cooperate with the police, get it from your lawyer based upon your actual background and prior offenses.

[vassock]

I know a lot more about this subject than you do. If you believe I was confusing FST's or PBT's with an in-station test, it's because you either didn't read carefully or didn't understand what I was saying. You also don't appear to have any understanding of implied consent as it relates to drunk driving.

My reason for posting here isn't to engage in a "who knows more" battle with anyone. Actually, I said you mixed them up, but I suppose "confuse" works just as well.

The consequences of refusing to cooperate with the police during a traffic stop, and of refusing chemical testing for which they have probable cause, are significant.

You blurred the line between the FST and other tests by lumping them together and saying that there are consequences, which is not what I was asking. I know there are consequences, but I wanted to know what the specific consequences are for each refusal, not that there are consequences for refusal to cooperate in general, which I already know. Sorry if you misunderstood what I was asking.

They vary by state; you have a theoretical situation involving two states; Google is your friend. I'll reiterate: If you want advice on when it might benefit you to refuse to cooperate with the police, get it from your lawyer based upon your actual background and prior offenses.

I have no prior offenses and thus no lawyer. The reason I came here is to ask for advice. It's better to know in advance what to do in such a situation than to take a guess and hope it works out later. That's why I wanted to know of the legal consequences for refusing the FST and the PBT. I already know about the consequences of refusing the breathalyzer, but was wondering if there were similar consequences for refusing the FST and PBT and if refusing the PBT could be considered the same as refusing the breathalyzer.

The reason I had an issue with your post is because it was not specific when it mixed up the refusals.

The primary purpose of FST's is to obtain probable cause for chemical testing. The consequences of refusing to cooperate with the police during a traffic stop, and of refusing chemical testing for which they have probable cause, are significant. You can expect, for example, a driver's license suspension based upon the refusal of chemical tests. In some jurisdictions the police will get a warrant for a blood draw and take blood, if necessary, by force.

For example, you write that the consequences for refusing to cooperate are significant, but what does that mean? Cooperate in what way and with what? FST, PBT or breathalyzer? Then you mention refusal of a chemical test, but which one? The portable one or the one at the station? Both test the chemistry of your breath.

I'm trying to get precise answers, that's all. If you only have specific knowledge of one of the states, then by all means let me know. It's just that if the primary purpose of the FST is to obtain probably cause for chemical testing, and if there are no legal punishments (like implied consent or consciousness of guilt) associated with refusing it, it makes no sense to consent to it because it would just allow the policeman to collect more evidence against you. It's the same reason you don't tell the policeman that you've been drinking heavily.

[Mr. Knowitall]

Look, it's not my fault if you find plain English to be confusing. If your response to your being confused by simple, plain-English statements is to bicker and condescend, and to double down when it's pointed out that you're the person who has a lack of knowledge and understanding, well, I have better things to do than to try to help you. So good luck to you - you'll get the precise answers you want after you pay your lawyer to provide them, after which you can pay him to bicker with your about his answers.

[cdwjava]

By the time the cop asks for the FST, he has already decided to arrest you.

Not true. While it MAY be the case, it is certainly not always the case, and NOT how the officer is trained. If you are sloppy drunk and practically nodding off as the officer speaks to you, then that is likely the case. In most DUI investigations, this is not true as there is not likely sufficient probable cause to make the arrest upon contact.

My reason for asking was to find if there was any case law either punishing people for refusing to take the FST (not to be confused with any chemical tests) or specifically allowing people the right to refuse and protecting that right under the fifth amendment.

There may be some states that penalize you for a refusal to participate in the FSTs, but I can't think of any. Your refusal CAN sometimes be used as evidence of consciousness of guilt depending on state law.

While the FST can generally be refused, a mandatory test after arrest cannot ... at least, not without consequences. In my state (and many others) if you refuse, we can still compel blood without a search warrant and you would not only get the suspension for the refusal, but th state will still get it's chemical test if the agency forces the blood draw.

So if I ask for the Breathalyzer test at the station instead of the portable breath test when asked to perform the portable breath test, I will not be in violation of the implied consent law or any other law?

That depends on state law and age. In many states, drivers under 21 cannot refuse even the PBT in the field. The test AFTER arrest cannot be refused. If you want to volunteer for a test at the station, go ahead.

What are the administrative penalties?

A license suspension ... the length varies by state.

[aaron]

Some states impose a penalty for refusing a PBT, even for adult drivers, and the penalty can be more severe for drivers of commercial vehicles. (This is in addition to administrative penalties that may exist.) See, e.g., MCL 257.625a ("Except as provided in subsection (5), a person who refuses to submit to a preliminary chemical breath analysis upon a lawful request by a peace officer is responsible for a civil infraction" ; "A person who was operating a commercial motor vehicle and who is requested to submit to a preliminary chemical breath analysis under this section shall be advised that refusing a peace officer's request to take a test described in this section is a misdemeanor").