OVI Field Testing

Drinking and driving is not illegal; however being impaired and driving is illegal. One of the ways our attorneys can help you is by ensuring that any field sobriety tests—or tests taken later—were legally handled.

Individuals stopped after midnight are routinely asked about the consumption of alcohol and requested to take various field sobriety tests. These tests may include the horizontal gaze nystagmus (pen test) the heel-to-toe walk and turn, and the portable breath test (PBT). Courts have ruled that the smell of alcohol alone is not enough to give the officer probable cause to request OVI field testing; therefore, there is no penalty for refusing these tests. If you have been consuming alcohol and are stopped after supplying the officer with your license and registration, you should politely decline to answer any questions about your consumption of alcohol or where you might have been (such as your local bar). You should then also decline to participate in any field sobriety testing as well.

However, that protection ends once you are taken to a police station. There, officers may ask you to take a breathalyzer test at the station. If you refuse, then the law allows for an automatic suspension of your license known as an Implied Consent Suspension. (There is no automatic suspension for refusing all field tests at the scene including the PBT.)

Even if you refuse field testing but take the breathalyzer at the station, you preserve some very real arguments for having all evidence gathered thereafter suppressed, which can lead to an outright dismissal or reduction of the charges. In this situation, an experienced attorney can be your best chance at a favorable outcome.