When is a Refusal to Submit to the Field Sobriety Exam Not a Refusal in Florida?

In Florida, when the police officer is conducting a DUI investigation, that officer is going to request that the driver submits to a field sobriety examination at some point. This is a very subjective and voluntary test which is supposed to be designed to see if the driver is intoxicated but practically is often just used as evidence to bolster the DUI case for the police and the state. People in Florida need to understand their rights and that they have an absolute right to refuse to submit to the field sobriety exam.

If a driver refuses a police officer’s request to submit to a field sobriety exam, that alone does not affect his/her driving privileges. The risk of a refusal is that the refusal can be used against the driver in his/her DUI trial where the prosecutor will argue the driver refused the field sobriety exam because the driver knew he/she was drunk and would fail. Of course, the driver will likely have perfectly good reasons for refusing the field sobriety exam that his/her criminal defense lawyer can assert to refute the prosecutor’s argument.

However, in some DUI cases, the driver’s refusal to submit to a field sobriety exam cannot be used against the driver in the DUI trial. The refusal cannot be used against the driver in the DUI trial when the refusal was not a true refusal. What does this mean? First the police officer must give the driver the proper warnings when the police officer requests that the driver take the field sobriety tests. The police officer must tell the driver that a refusal to take the field sobriety exam will result in adverse consequences for the driver. In other words, the refusal can be considered by the police officer in his/her decision to arrest the driver for DUI and a later DUI trial. Second, the refusal has to be a clear refusal. Third, if the driver initially refuses but then changes his/her mind, the police officer must allow the driver to take the field sobriety exam if it is still convenient to do so and the tests results would not be affected by the driver’s changed mind. Therefore, if the driver refuses at the DUI stop and changes his/her mind after he/she has already been booked into the jail, that is probably too late and the refusal can likely be used against the driver at the DUI trial. However, if the driver initially refuses but changes his/her mind a few minutes later while they are still at the scene of the stop, the police officer would likely have to allow the driver to take the field sobriety exam. If the police officer does not, the driver’s criminal defense lawyer would likely be successful in making sure the driver’s initial refusal to take the field sobriety exam cannot be used as evidence by the state against the driver at the DUI trial.