It occurred to me that
over the course of the countless DWI cases I've defended, the issue
of whether or not to take the FSTs has rarely come up. Sure, clients
ask all the time, “should I have refused the chemical test?” But no one
really ever asks if they should have refused the FSTs. So I have to
presume that’s because most people don’t realize that they can. Well, I
am happy to inform everyone (at least in NYS) that you do not have to perform
the FSTs just because the officer asks you to!
There is no law, rule,
regulation or whatever in NYS that requires a driver to comply with an
officer’s request to take FSTs (note, however, that refusing to take
the roadside breath test [which is not an FST] is a traffic
infraction). What does this mean? Just what it says! If you’re in the
unfortunate circumstance of finding yourself standing outside of your vehicle –
often in the dark of night and bitter cold, with cars whizzing past you while a
well-trained and armed civil servant tells you to “follow the tip of the pen”
or “stand heel to toe (without moving!) while I give you these instructions” or
to perform some other circus monkey-like feat, you have the right to say no –
or nothing at all, for that matter – and refuse to perform any of the tests.
Why would you want to do
this, you ask? I’m not saying you would (mostly because I’m not really
allowed to give legal advice in this sort of forum); I’m just saying it’s an
option. Every case is different, and you know yourself and your abilities
better than anyone else; so the decision is yours as to whether or not to
perform the tests. But, as with most issues in a DWI case, there are pros
and cons to whatever you decide to do…or not do.
The purpose of the FSTs is
to assist the arresting officer in establishing probable cause to determine
whether the driver was operating the vehicle in violation of VTL 1192 (impaired
or intoxicated) and make a subsequent arrest. The presumption is that if you
fail these tests of physical wonderment, you are clearly too intoxicated (or at
least too impaired) to drive a car. So refusing to take these tests may
make it more difficult for the arresting officer to determine (legally anyway)
whether you were impaired. Keep in mind, however, the officer is
making observations of you and taking notes from the time s/he decides to pull
you over; so if you’re all over the road for 4 miles and pour yourself out of
your car with an open container in your hand after you eventually pull yourself
over onto someone's front lawn taking out the treasured garden gnome and maybe
the corner of the front porch in the process, well, refusing to take the FSTs
may not help you out that much in the big picture.
FSTs and the administration
thereof are subject to mistakes and errors in interpretation by the arresting
officer. And my personal opinion for the ability (or inability) of the
tests to actually determine intoxication aside, the fact is that the tasks you
are asked to perform are nothing like other physical activities in which you
may regularly engage (Sure! I routinely stand on one leg with my hands at my
side for prolonged periods of time every day at work! Who doesn't?).
Moreover, even if you do fail all three of the standardized tests
(HGN, Walk and Turn and One Leg Stand – the only “reliable” tests), it’s still
not a 100% certain that you are intoxicated (more like only 80% certain; what
is that, like a “B” in school? “B-“ maybe? No one’s making the honor roll
with low B’s, I can tell you that!). The tests are simply indicators of
intoxication. So perhaps by not performing these highly subjective tests
you may take away a weapon that the prosecutor can use against you to show you
were driving while intoxicated.
But of course, there is
always a price to pay for your decision! If you do refuse to take the FSTs, the
prosecutor can introduce your refusal as evidence against you at your DWI
trial, as an inference that you knew you were intoxicated so refused to take
the tests to try to protect yourself. So you may want to remember that
before you start thinking you’re going to outsmart the system if, god forbid,
you're ever facing the working end of a DWI arrest. But you may want to
keep this in mind, too: “the inference of intoxication arising from failure to
complete the tests successfully ‘is far stronger than that arising from a
refusal to take the test.’” People v. Berg, 92 NY2d 701, 706,
685 NYS2d 906 (1999) (quotation omitted) (emphasis added).
Officers are not required
to advise you of your right to refuse the FSTs. So it’s incumbent on all
of us to remember on or own that we have that right, and to decide if we are
better or worse off if we exercise it. There are a lot of factors in a
DWI case, and any one of them can undermine your quick-thinking FST refusal and
perhaps any good that may have come from it. It's tough to do in the
pressure cooker of an imminent DWI arrest, but you must weigh your options
carefully before you decide to take or refuse any part of the DWI arrest
process.
A DWI arrest can be a
confusing and complicated matter. If you
have been arrested for DWI or any other alcohol-related driving offense, call
the experienced DWI defense attorneys at Catalano
& Carpenter LLP today to schedule a free consultation at (845) 454-1919, or visit us online at www.CatalanoCarpenter.com.
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