I'm asked this question all the time "if the police thought I was guilty, why did they ask me to do field sobriety tests instead of just arresting me?" This is a common issue in police investigations. Once the officer asks you to step out to the field sobriety tests, he or she has likely made the determination that you are under the influence of alcohol or drugs. Often times, the officer will make it appear that they are giving you an opportunity to prove you are not under the influence so that they can let you drive home. Sometimes the officer will say something to the effect of "I just want to make sure you're safe to drive home", or "I just have a couple of tests for you to do and you can be on your way". Both of these statements are lies. The officer is looking for additional information of impairment so he or she could build a case against you.
The real issue is whether or not you can lawfully refuse to do these field sobriety tests. In Maine, the law only requires you to submit to a chemical test (blood breath or urine) at the request of a law enforcement officer. There is neither statutory nor case law, which requires you to submit to field sobriety tests at the request of a law enforcement officer.
So, what happens if you refuse to submit to field sobriety tests? Well, in all likelihood the officer will place you under arrest for suspicion of OUI. So, refusing to do field sobriety tests is a double-edged sword. However, the payoff for your criminal case is much greater than any drawback for failing to submit the field sobriety tests. There are no enhanced penalties for refusing to do field sobriety tests in the state of Maine. There are no special instructions given by the judge to the jury as to your failure to submit the fields brought a test. The huge advantage to you when you refuse to submit to these tasks, is that there is less evidence of impairment that the prosecutor can argue to a judge or jury. In addition, if the stop was for a technical violation rather than impaired driving, your failure to submit to field sobriety testing may tip the balance in your favor when you're attorney argues there was no probable cause for arrest.
The NHTSA backed standardized field sobriety testing program is a sham. This program is not based on real science. The principles underlying the field sobriety testing program are based on pseudoscience and "police science". The purpose of the standardized field sobriety testing program was to give police officers a better tool for determining someone's sobriety or impairment when making an arrest decision. Unfortunately, the vast majority of police officers either abuse the system or fail to administer these tests properly. If the officer fails to administer the test correctly, then the underlying assumption of impairment which stands as the basis for the arrest is flawed. The end result is often times innocent people and upbeat arrested for OUI.
In summary, if you are asked to perform field sobriety test by a police officer you should decline. Keep in mind that you have rights and you should exercise those rights. Those of us who failed to exercise those rights will find themselves at the mercy of the local constabulary. If you been charged with an OUI, call my office immediately. Time is of the essence when dealing with a DUI case and getting the right attorney involved can make all the difference in the outcome of your case.