In determining whether a driver is intoxicated, police officers use a variety of clues, tests, and machines. However, the most effective tools they use are their mouths. Officers never ask casual questions. When officers approach you, everything they say is calculated to get you to provide them with evidence against you, and they are good at what they do.
Police will ask several kinds of questions. “Have you have had anything to drink?” “How much you have had to drink?” “When did you have your last drink?” “Where did you drink?” If nothing else, they want you to talk to them so that they can tell whether you are slurring your speech. You do not have to answer these questions. You should simply hand them your ID, insurance, and registration. Do not answer any questions.
During a traffic stop, an officer may or may not have the right to order you to do any number of things including asking you to step out of your car or searching you and your car. However, even if an officer does not have the legal right to do something, the officer can always ask and get permission.
Legally, it is a fine line between when an officer is ordering you and when they are asking you to do something. If you ever have any doubts about whether you are required to obey police officers, clearly and politely ask them whether they are ordering you.
If they are not ordering you to do something, you can politely decline. If they are ordering you, politely obey the order and hire a good attorney. Any evidence found by violating a driver’s rights is not admissible in court.
Police officers look for erratic driving, empty or open beer bottles, glassy or blood shot eyes, slurred speech, or loss of balance. When they see any combination of these things, they may decide to ask you to perform field sobriety tests (FST).
FSTs are a series of exercises or tests used to determine sobriety. Many of these tests are difficult and can easily be failed by a sober person. You are not required by law to submit to FST. The police cannot make you take them, but they can sometimes use your refusal as evidence of consciousness of guilt (Jones v. Commonwealth, 51 Va. App. 730, 2008). If a driver has any reason to be concerned about taking a FST, he should decline to do so.
The FSTs used by the police in Virginia vary between regions, jurisdictions, and individual officers. Often, officers use variations of the same test that may or may not be more complicated. Most of the tests examine two things: 1) driver coordination and 2) ability to follow instruction.
FSTs are meant to be difficult, and many sober people cannot pass them. Because these tests measure the ability to follow instructions, the tests begin as soon as the officer is speaking. Little errors like starting too soon are considered evidence of intoxication.
Some of the typical tests include:
- walking heel-to-toe on a straight line, and then turning and walking back a specific number of steps;
- standing on one leg without moving your arms and legs;
- saying the alphabet, starting from a random letter and progressing forward or backward;
- counting between two given numbers, either forward or backward;
- touching your nose or touching your thumb and fingers in a specific order;
- performing the Rhomberg Balance test (close eyes, tilt head back, and stand still for 30 seconds); and
- executing the Horizontal Gaze Nystagmus (HGN).