Home \ Resources \ What to Do if You Refuse a Field Sobriety Test in Phoenix
If you were arrested for a DUI and refused a field sobriety test, you need to hire a Phoenix defense attorney as quickly as possible. There are tight deadlines to fight a driver’s license suspension after refusing field sobriety tests.
Here we focus strictly on the consequences of the refusal with the DMV. The potential consequences of the DUI in criminal court are a separate and additional concern that will also require legal counsel. A criminal defense lawyer can help with both.
Field sobriety tests (FSTs) are administered by law enforcement on the roadside before and after an arrest if they have a suspicion of DUI. Most of these tests are subjective, and they require a police officer to use their judgment to tell if someone is impaired. Others are based on scientific chemical tests and are therefore more reliable.
There are many different types of field sobriety tests that officers may request. Some common ones include:
Officers are not allowed to subject you to field sobriety tests unless they have reasonable grounds to believe that you are operating a motor vehicle under the influence. Without the requisite level of suspicion, a request to take FST’s after an arrest may be considered unlawful.
Some things law enforcement uses as signs of impairment of drugs or alcohol during roadside tests include:
While these tests are relatively simple, the penalty for refusing to take them after an arrest are very serious. Refusal can result in the suspension of your driving privileges. The state is allowed to do this under the law of implied consent, but you can fight back with an experienced criminal defense lawyer.
The state of Arizona considers driving a privilege, not a right. To take advantage of this privilege, state law requires all drivers to “consent” to field sobriety tests. By getting a driver’s license and driving on the roads and highways in Arizona, you are considered to have consented to field sobriety tests.
To be sure, you have Fourth Amendment protections against unreasonable searches and seizures. However, if the police have reasonable grounds (i.e. probable cause) to believe you are driving under the influence, you are required to submit to field sobriety tests or risk losing your privilege to drive.
This is called “Implied Consent.” Your consent is implied by simply obtaining a driver’s license. Under implied consent law, the Department of Motor Vehicles can automatically suspend your driver’s license for refusing to take field sobriety tests.
A license suspension for a refusal to take field sobriety tests is one year long if it is your first refusal in seven years. However, if you have more than one refusal in a seven-year period, the suspension is for two years. This is called an administrative suspension because it is issued by the DMV, not by criminal court.
There are additional periods of driver’s license suspension that begin after a conviction for DUI. These would be in addition to any administrative suspension imposed by the DMV.
If this is your first license suspension for a refusal, you can apply for a special driver’s license called an “occupational” license after 90 days of not driving. An occupational license allows you to drive if you install an ignition interlock device in your vehicle. Even then, you may only drive during specified hours to and from work, school, or medical treatment / counseling.
An occupational license with an ignition interlock device is not available for second and subsequent refusals.
The good news is that you can fight an administrative suspension of your driver’s license if you act quickly. When you refuse field sobriety testing after arrest, a police officer will order you to surrender your driver’s license to them.
They will provide you with a temporary license, valid for 15 days, and also give you an order notifying you of your license suspension. On the 16th day, you will officially lose driving privileges.
The only way to prevent this is to file a request for a hearing. The DMV must receive your request before the 15 days is up, and you must follow proper procedures when submitting the request for a hearing.
You may choose to bring a lawyer to the administrative hearing regarding your refusal. It is wise to bring legal counsel to avoid incriminating yourself for the underlying DUI, which is also pending in criminal court.
At the hearing, an administrative law judge will decide whether your refusal was valid. However, refusals are very rarely considered valid, and the typical outcome is a license suspension. Having an experienced lawyer representing you will increase your chances of keeping your driving privileges while your criminal case is pending.
To revoke your license, the state is required to prove the following by a preponderance of the evidence:
If your license suspension is upheld at the hearing, you have 30 days to file an appeal. Because you have an open criminal case for a DUI, we recommend having a lawyer present at your hearing to protect your rights.