Everyone can remember seeing a movie or television show where a suspected drunk driver is put through a series of physical “tests” to determine if he or she is drunk. The most typical picture is one of a person trying to do the finger-to-nose exercise or walk heel-to-toe on a line. In legal parlance, these agility tests are called the “Field Sobriety Exercises”.

A driver who has been driving erratically or who has committed a traffic infraction, will be asked to step out of the car to perform these Field Sobriety Exercises if an officer smells alcohol on their breath. Police officers commonly use these physical agility exercises as a way to screen for drunk drivers. The exercises cannot, by themselves, establish whether or not a driver is impaired. But poor performance of them authorizes the officer to make an arrest and then request the driver to submit to a breath test.

A driver is not required to agree to do any Field Sobriety Exercises. However, if he or she refuses, their refusal can be used in court to suggest that the driver was afraid that they would do poorly because they knew they were impaired. There are many reasons why a person may decide to refuse these physical exercises other than fearing they may not do well. Some of them may have nothing to do with drugs or alcohol. Illness, medication, disabilities and infirmities known or unknown to a driver could affect their performance. The tests may be refused because the driver does not trust the officer or is angry because they believe that there was no good reason for being stopped. The driver may also believe the law does not demand that he or she do everything the officer asks of them.

Field Sobriety Exercises, like breath tests, must convince the jury that they were given under fair circumstances. These tests – often videotaped – must convince the jury that the driver’s performance is attributable to the effects of alcohol and not some other factor.