If I am Pulled Over for Drunk Driving, Which Tests are Voluntary?

If I am Pulled Over for Drunk Driving, Which Tests are Voluntary?

After being pulled over by an officer for drunk driving / DUI, or after having entered a checkpoint, many drivers are often confused about which tests are voluntary.

The pivotal point is arrest. All the roadside tests prior to being placed under formal arrest (i.e. being handcuffed) are voluntary. After arrest, submitting to a "chemical test" is no longer voluntary.

Let’s say you are driving and find yourself heading toward a checkpoint and you’re stuck in traffic. You can’t go anywhere except drive up to the officer. Have your license, registration, and insurance documents ready in hand before you reach the officer. If asked for the documents, furnish them. You need not say anything additional.

HGN ­— Horizontal Gaze Nystagmus test —­ VOLUNTARY

You pull up to the officer and she tells you that she wants to check your eyes. She may ask you to take off your glasses or to get out of the car so that you can follow her finger or pen. This test is voluntary. You do NOT have to submit to it. You can politely refuse.

Also, do not refuse with 20 words if 2 will suffice (e.g., "No. Thanks."). That helps to reduce any potential odor of alcohol emanating from our mouth and will also limit stuttering and the officer hearing "slurred" speech.

Walk and Turn / One Leg Stand / Finger to Nose ­— ALL VOLUNTARY

The officer may want you to get out of your car so she can administer some "field sobriety tests" (FSTs). These may or may not be "standardized" tests (SFSTs). These roadside tests are all voluntary. You do NOT have to submit to any of them. You can politely refuse.

PAS —­ Preliminary Alcohol Screening ­— Pre­-arrest Breathalyzer — VOLUNTARY (with exceptions*)

Another test is commonly referred to as P.A.S. —­ preliminary alcohol screening test —­ which is administered by a handheld gadget. This test takes place prior to formal arrest and it is intended to help the officer to determine whether there is any alcohol in the driver’s system.

Prior to administering this test, the officer is legally required to let you know that it is a voluntary test, but they don’t. They usually just take out the gadget, stick it in our faces and say "you need to blow into this...." But now you know that this pre­-arrest breathalyzer test is voluntary.

At that point, the officer either has "probable cause" to arrest, or she doesn’t. If she doesn’t, then you should be "free to leave" and proceed. If, however, there are facts that constitute probable cause, and there is an arrest, a chemical test is no longer voluntary.

*The PAS is not voluntary for those who are on DUI probation or under the age of 21.

Chemical Test (blood, breath, urine) ­— AFTER Arrest —­ NOT Voluntary

Let’s say we have been placed under arrest for suspicion of driving under the influence and are going to be transported to an area or a station to submit to a chemical test (e.g., blood, breath, and possibly urine). That post-­arrest chemical test is no longer voluntary. A refusal to submit to a post-­arrest chemical test carries harsh consequences.

There are many issues surrounding "implied consent" vs. "actual consent" and the required advisements, etc. I’ll go more in depth about these subject matters under different headings.

This section is limited to identifying those pre­-arrest voluntary tests vs. the post­-arrest chemical test, which is not considered voluntary.

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© Sol Danny Khorsandi, Esq. All rights reserved.

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