Posted June 16th, 2011 by Leah R with 2 Comments

There really isn’t an easy answer to this question.  In short answer to this question is no, at least not at the initial stop.  If an officer pulls you over and later suspects that you are impaired by alcohol or drugs, barring a bit of Harry Potter magic on your Field Sobriety Exercises, you’re likely heading downtown to spend a night in Officer Frank Friendly’s finest lodging.  All is not lost though.  What you CAN DO at the scene of the stop is mitigate your damages for later in your case.  I have always advised folks to first be candid with their self (don’t ever admit impairment to the officer) and determine whether they are impaired to the point that they are unable to effectively conduct the exercises requested of them.  If someone has had one beer, six hours ago, they might be ok to do the exercises.  If that same someone has had six beers in the last hour then they may want to elect door number 2 and do as described in this blog.

If you feel you are impaired when Officer Friendly cordially invites you to follow his lead and perform his so called “standardized” Field Sobriety Exercises, one should reply very nicely, “With all due respect Sir, I will be happy to do any exercise you ask me to do, as long as my attorney is present.  I’m not an attorney or someone familiar with the law, and I would like to be on equal footing.”  It is important to know that you WILL BE taking a ride to “Hotel Pokey” for saying this, but in all likelihood you were going to anyway considering the difficulty of Field Sobriety Exercises.  When you arrive at jail, the officer will read you what is called “implied consent,” and request a sample of your breath, urine, or blood (blood in limited circumstances) depending on their suspicion.  Now your response should definitely be, “I’m happy to take your test Officer, as long as I can have an attorney present with me as I do so.”

If you aren’t impaired (be honest with yourself.  Now is not the time for BSing), often it’s better to perform the exercises and breath test as it could exonerate you now OR later.  If you are clearly impaired, if you do as I’ve recommended in this blog it’s important that you know that you will spend the night in jail and you will be at least initially charged with DUI.  You should also know the State Attorney’s office will try their best to use your lack of participation in Field Sobriety Exercises and failure to give a breath, urine, or blood sample as a refusal and evidence of consciousness of guilt against you.  Finally, in refusing a breath, urine, or blood test, your administrative “hard time” license suspension with the DHSMV will be 90 days as opposed to 30 days had you participated, and a year as opposed to six months via Florida statute on a first time DUI.  After your 90 or 30 day “hard time” period you will most likely be eligible for a business purposes only permit which will also likely be available for the duration of your license suspension.  I know you think I’m crazy and a terrible attorney for recommending this.  Don’t fret, this is thoroughly calculated.  The method to my madness is that DUI is a charge wherein the big picture is often lost in the immediate concern over the driver’s license suspension.  However, the license suspension is short lived, whereas the stigma related to being convicted of a DUI can have lasting effects.  Think long term.  By requesting a Pinellas DUI attorney at the scene of the stop and at the breath, urine, or blood test, the State cannot legitimately say you actively refused the exercises and testing when your case comes down for trial.  Juries don’t want to hear that a person was denied an opportunity to educate themselves regarding an officer’s requests, when had they been given that opportunity, they would have obliged with the officer’s requests.  Strip this down for a minute and you’ll find that there really is no refusal of anything, but rather a request for an attorney to stand by as you perform the Officer’s requested exercises and tests.  Despite what I say, YOU WILL NOT BE AFFORDED AN ATTORNEY AT THESE POINTS.  Case law holds there is no right to an attorney at this stage of your detainment.  Your first opportunity for counsel is at your first appearance, should you have one. Again, Juries don’t like to hear a person is willing to participate if they are on even ground, yet still are denied the ability to do so.  It’s logical.  A person wouldn’t buy a house without an inspection would they?  The entire point is to make a decision from an equal playing field.  From the outset, the key is giving as little evidence to the State as possible.

In all my time as a Prosecutor and a Criminal Defense attorney in Florida, I have heard of few instances where an officer pulls over a driver thought to be impaired, and then sends them on their way after they are successful in their Field Sobriety Exercise performance.  Speak to most DUI attorneys and they’ll tell you Field Sobriety Exercises use unnatural movement to “test” natural motor skills.  Ever witness someone attempt field sobriety exercises, sober or not?  Most can’t complete them, impaired or not impaired, so why give the State evidence to convict you?

Whether you like my theory or not, the decision on what to do is up to you.  Who knows what another attorney may say, or what the officer will tell you at the stop.  What my theory does is act to aid your attorney in building your defense at trial or provide fire power to lobby for a reduced charge.  It’s battle proven and worked for me in the past, amounting to a DUI charge being reduced to a reckless driving where my client paid only court costs and received a withhold of adjudication.  With that deal, he was immediately eligible to seal his record and just like that, his criminal record was hidden.  It’s important to know a second time refusal of a chemical test is a criminal offense, so be cognizant of this as you enter the breath test room.  Obviously, this is not a sure fire way to a dropped or reduced charge.  Further, it’s not a golden ticket to a trial win.  In fact, under certain circumstances, you could still be convicted of a DUI.  This theory is merely a method to give your attorney a shot and “put him on even ground” so to say.     Good luck!



  1. Lynda July 28, 2011

    Your article perfectly shows what I neeedd to know, thanks!


    • Deacon September 10, 2011

      Fialnly! This is just what I was looking for.


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