In January a reader asked if a driver can refuse to take a sobriety test when pulled over by police on suspicious of drunk driving. We spoke with Lawrence Taylor, a California-based attorney who specializes in defending against DUI charges. But G.E. in Florida, who says he works in law enforcement, had a long rebuttal. We sent it along to Taylor to get his thoughts and have excerpted the call-and-response below.

G.E.: “The lawyer you quoted about the field sobriety test says your chances of passing it are zero if the cop has already decided you're drunk. Not to contradict a lawyer, but the are no longer known as tests. Instead, they are
called field sobriety exercises.”

L.T.: “That may be true where this reader lives, but in most states they are
still called "field sobriety tests", or FSTs. Even the new federal standardized FSTs that are being adopted by most states call them tests. I’d love to see them referred to as ‘exercises,’ as the word ‘test’ implies some sort of scientific credibility to juries; the officer is not a scientist or a doctor.” G.E.: “These field exercises are a tool that the law enforcement uses to decide if you are impaired. It does not matter if the officer thinks you are drunk. The exercises in most states must be performed in front of a camera, and are also given after a 20-minute period in which the person is observed to see if the are suffering from something other the some form of intoxication. A driver is given two breath tests to ensure that the results are fair.”

L.T.: “The officer has generally decided to arrest or not based upon his initial observations in the first contact: driving, alcohol on breath, bloodshot eyes, slurred speech, etc. Once the officer has decided that,
the suspect is not going to ‘pass’ the FSTs. As for this idea that the test must be filmed, that is not true in most jurisdictions. A rough guess would be that only about 25 percent of jurisdictions use dashboard cameras on a regular basis. First, they’re expensive. Second, many departments don’t like their officers’ every move being recorded. Finally, there is no such thing as a 20-minute observation period before the FSTs.  G.E. is confusing the 20-minute observation required before giving a breath test.”

G.E.: “I don't think it is fair that the lawyer is basically saying that cops make sure that you are guilty, so you better just refuse to do or say anything. On the refusal question, in most states, if you refuse to take a
breath test, the officer will take your license from you on the spot, and you are not eligible to get it back until you have gone before a judge or hearing officer.”

L.T.: “I never said that cops ‘make sure that you are guilty.’ I said they have probably concluded that there are sufficient grounds to arrest from an early stage. If you refuse a breath test by an officer, he will take your license. Each state differs slightly, but typically you will have 10 days to contact the DMV to request a hearing. Most states also have a grace period (typically 30 days) during which you have a temporary driving period. If you refuse to take the breath test and then don’t request a hearing within 10 days or lose the hearing, your license will typically be suspended for a year.  If a breath test indicates .08 percent or higher, the officer will confiscate your license but blood the suspension will be significantly shorter, typically
four months but longer in some states.”

G.E.: “I am not trying to say that the Advisor is 100 percent wrong. I just think that the defense lawyer has made certain statements to get business. Doing all of the steps are great, if you can afford a DUI attorney. They are expensive, but prosecutors will usually cut a deal if the defendant shows up with one in court. I think the best thing to do would be to admit your mistake, and make a deal to have the charge reduced to reckless driving. Any prosecutor will tell you that he is overloaded with work, and they will make a deal with you, so that it is one less case they have to worry about.”

Perhaps the Advisor’s intent behind publishing this letter and response, or any Q&A on legal issues, is not clear. We’re not trying to help drunk drivers “get off.” But we also don’t assume, as G.E. seems to, that every person who is pulled over and/or arrested on suspicion of drunk driving is guilty. Should you make a deal with a prosecutor if you’re not guilty? And if you are pulled over but aren’t drunk, shouldn’t you know your rights so you don’t walk yourself into a bad situation? As we said in January, the best strategy is not to put yourself in this position in the first place.