The field sobriety tests you should decline. Here's how, and why.
Field sobriety tests are voluntary in Washington. Performing them rarely helps your case, and almost always hurts it. Here's what they are, why they're designed to fail, and what to say instead.
If a Washington officer asks you to "step out and do a few tests," politely decline.
Field sobriety tests are not required by Washington law. There is no license penalty for refusing them. They exist almost entirely to build evidence against you.
- FSTs are voluntary in Washington State
- Refusing them carries no license consequences
- Even sober people routinely fail standardized FSTs under real-world conditions
- Officers are trained to look for failure cues, not to confirm sobriety
- Politely declining is your right and rarely a tactical mistake
What are Field Sobriety Tests, exactly?
Field Sobriety Tests, or FSTs, are roadside physical and cognitive exercises that officers use to gather evidence of impairment. They are not chemical tests. They don't measure your blood alcohol level. They're observational tools designed to give an officer subjective grounds for an arrest.
In Washington, officers typically administer FSTs as a "battery": a sequence of tests, not a single one. The idea is that performance across multiple tests gives the officer a more reliable picture of impairment. In practice, it gives the officer multiple opportunities to record cues against you.
There are two categories: the three standardized tests developed by the National Highway Traffic Safety Administration (NHTSA), and a grab bag of non-standardized tests that vary by officer and jurisdiction. The standardized tests have official scoring rubrics. The non-standardized tests do not, which is precisely why some officers prefer them.
The Three Standardized NHTSA Tests
These are the tests an officer is most likely to administer. Each has a specific procedure, a list of "clues" officers are trained to look for, and a documented failure rate among completely sober people.
Horizontal Gaze Nystagmus (HGN)
What it claims to measure: Involuntary jerking of the eyeball, which becomes more pronounced under alcohol or certain drugs.
The procedure: The officer holds a pen or finger about 12-15 inches from your face and moves it slowly side to side. They watch your eyes for three specific cues per eye, six total.
Why innocent people fail:
- Many medical conditions (caffeine, fatigue, eye strain, ear infections) cause nystagmus
- Officers frequently fail to position the stimulus correctly
- Flashing emergency lights interfere with the test
- Up to 40 documented non-alcohol causes of nystagmus
How we challenge it:
HGN is the most scientifically contested of the three. NHTSA's own protocol requires the stimulus be held 12-15 inches from the suspect's face and moved at a specific speed. We routinely find bodycam footage showing officers holding it at 8 inches or 20 inches, or sweeping too quickly, both of which produce false positives. We examine that footage frame-by-frame, cross-examine on the officer's HGN certification and training records, and present medical alternatives that explain the same eye movements.
Walk-and-Turn
What it claims to measure: Divided attention. Your ability to follow instructions while performing a physical task.
The procedure: Walk nine heel-to-toe steps along a real or imaginary line, turn using a series of small steps, then walk nine heel-to-toe steps back. Count out loud. Arms at your sides. Don't stop walking.
The eight clues officers look for:
- Cannot maintain balance during instructions
- Starts before instructions are finished
- Stops while walking
- Does not touch heel to toe
- Steps off the line
- Uses arms for balance
- Improper turn
- Incorrect number of steps
Why innocent people fail:
The test was originally validated on subjects in good physical condition, on a clean, level, dry surface. Even under those conditions, studies have documented sober people failing at substantial rates. In the real world, suspects perform this test on uneven roadside shoulders, often in poor weather, in unsuitable footwear, after being startled by a traffic stop. Two clues out of eight is failure. Most people would struggle to hit zero clues stone sober in a quiet hallway.
How we challenge it:
The test requires a "designated straight line." When one isn't available, the officer is supposed to use an imaginary one and so instruct the suspect. Bodycam footage often shows officers skipping instructions, demonstrating the test incorrectly, or scoring "clues" for behaviors that don't match the rubric (e.g., counting raised arms as a clue when they stayed within 6 inches of the body). We document each deviation and put the officer's training records into evidence.
One-Leg Stand
What it claims to measure: Balance and your ability to complete a divided-attention task.
The procedure: Stand on one foot. Raise the other approximately six inches off the ground, foot pointed forward. Look at your raised foot. Count out loud ("one-thousand-one, one-thousand-two...") until told to stop. The officer is timing for 30 seconds.
The four clues:
- Sways while balancing
- Uses arms for balance (raises them more than 6 inches)
- Hops
- Puts foot down before the 30 seconds is up
Why innocent people fail:
Anyone over 65, anyone 50+ pounds overweight, anyone with inner-ear issues, knee injuries, or back problems is at a structural disadvantage. NHTSA's own materials acknowledge these limitations. Officers are supposed to ask. Many don't.
How we challenge it:
NHTSA requires the One-Leg Stand be performed on a "reasonably dry, hard, level, non-slippery surface." Sloped highway shoulders, gravel, and wet pavement don't qualify. We pull dashcam and bodycam to document the actual surface conditions, cross-reference against the officer's report, and routinely find disqualifying conditions that the officer either didn't note or ignored.
Non-Standardized Tests: No Rubric, No Science, Still Used
Beyond the three NHTSA tests, officers may ask you to perform tests with no validated scoring system. There is no NHTSA failure threshold for these because they are not approved as evidence of impairment. Officers use them anyway, and their subjective observations end up in police reports.
The Romberg Stand: Stand with your feet together, head tilted back, eyes closed, and estimate when 30 seconds has passed. Officers watch for swaying and how accurately you judge time. Many sober people are 5+ seconds off. Fatigue, anxiety, and caffeine all affect time perception.
Finger-to-Nose: Tilt your head back, close your eyes, and touch the tip of your nose with your index finger on command. Officers grade whether you used the correct fingertip and how close you came to your nose. There is no peer-reviewed validation study supporting this test as evidence of intoxication.
Alphabet (or Counting Backwards): Recite the alphabet from a starting letter, or count backwards from a given number. These tests measure attention under stress. Anyone who has frozen during a presentation knows that cognitive performance under pressure has little to do with sobriety.
The Finger Count: Touch your thumb to each fingertip in sequence while counting "one, two, three, four" and back. Again: no validation, no rubric, pure officer subjectivity.
The takeaway: These tests exist to give officers grounds to articulate suspicion. They do not reliably distinguish impaired drivers from sober ones. You can, and should, decline them just as you would the standardized tests.
Why These Tests Are Designed for People to Fail
FSTs are administered under the worst possible conditions for honest performance. Here's a non-exhaustive list of factors that compromise the validity of every roadside test, even before alcohol enters the equation.
"Officer Dan has the rubric. You don't. That's not a fair test. That's the design."
Before founding Baldwin Legal Group, Chester Baldwin served as a Rule-9 Prosecutor in Thurston County, a supervised practitioner role under Washington's Admission to Practice Rule 9. That experience gave him a working understanding of how prosecutors build DUI cases, which evidence they actually rely on, and where the cracks are.
Now defending instead of prosecuting, he uses that institutional knowledge to scrutinize every step of an officer's investigation. Most defense attorneys learn DUI procedure from the outside. He learned it from the inside, then crossed over.
How to decline, without making things worse
Declining FSTs is your right. How you decline matters. Officers are trained to interpret tone, body language, and word choice. Here's the protocol.
Stay calm and polite
Hostility creates probable cause. Compliance with reasonable lawful orders (pulling over, providing license and registration, exiting the vehicle if asked) is required. Politeness costs nothing.
Use the magic words
Say: "I respectfully decline to perform any tests." Don't argue. Don't explain. Don't apologize. Repeat the same phrase if pressed.
Ask for an attorney
You have the right to counsel at the breath testing stage. Ask for one early and clearly. Officers must give you reasonable time and access to a phone before the test.
Don't answer questions
"Have you been drinking?" "How much have you had?" "Where are you coming from?" You don't have to answer. Politely: "I'd prefer not to answer questions without an attorney."
What you DO have to do
Declining FSTs doesn't mean refusing all cooperation. Washington law requires you to provide your driver's license, registration, and proof of insurance. You must exit the vehicle if ordered. You must submit to a chemical test at the police station if arrested under Washington's implied consent law (see the next section for what that means).
Everything beyond that is a request, not a requirement. Treat it that way.
Field Sobriety Tests vs. Breath Tests: Don't Confuse Them
This is the single most important distinction in Washington DUI law, and it trips up almost everyone. Field sobriety tests and breath tests are completely different things with completely different consequences for refusal.
✓ Field Sobriety Tests
Decline these.
- Voluntary under Washington law
- No license suspension for refusing
- Performed roadside, before arrest
- Subjective officer observations
- Sober people commonly fail under real-world conditions
- Cannot be used to convict you of refusal
Breath Tests (DataMaster)
More complicated. Get advice.
- Subject to implied consent law in WA
- Refusal = automatic license suspension (one year minimum, longer for priors)
- Performed at the station, post-arrest
- Refusal admissible as evidence at trial
- Separate civil and criminal consequences
- This is where you want an attorney on the phone
The PBT trap
Some officers carry a handheld Preliminary Breath Test (PBT) device that they use roadside, before arrest. The PBT is not the DataMaster. PBT results in Washington are not admissible to prove BAC in court. They're an investigative tool. Refusing a PBT, like refusing FSTs, carries no automatic license penalty.
The official station breath test, the DataMaster, is the one with implied-consent consequences. If you're not sure which one you're being asked to take, ask. Or better: ask to speak with your attorney before deciding.
Common Questions About FSTs in Washington
Maybe. Officers often arrest people who decline FSTs, especially if they already had grounds for suspicion. But here's the key: if they had enough to arrest you, they had enough to arrest you anyway. Declining FSTs doesn't create probable cause that didn't already exist. It just removes a piece of evidence from the State's case.
Performing FSTs and failing them gives the prosecution a much stronger case. Performing them and passing rarely changes the officer's mind. They've already decided.
How refusal is treated at trial varies by judge and prosecutor. It can be mentioned, and a prosecutor may argue consciousness of guilt in closing, but it doesn't carry the automatic adverse inference that a refused breath test does. Your attorney can argue context: that you exercised a legal right, that the test wasn't required of you, and that the State still has the burden to prove impairment through other evidence.
Compare that to performing the tests, recording multiple "clues" on bodycam, and having the entire failure played to a jury. The math usually favors declining, but the calculation depends on the specific case, the specific judge, and what other evidence exists.
No. People perform FSTs every day, often because they didn't know they could decline or felt pressured. That doesn't mean the case is lost. We routinely challenge FST results based on procedural violations, officer training gaps, environmental factors, medical conditions, and bodycam evidence that contradicts the written report.
Many of our best outcomes have been on cases where the client did take the tests. The tests just become one more piece of evidence to scrutinize.
Yes. Once an officer orders you out of the vehicle during a lawful traffic stop, you must comply. Refusing to exit the car is a separate offense and can give the officer additional grounds for arrest.
But stepping out of the car is not the same as agreeing to perform tests. You can comply with the order to exit and still decline FSTs once you're standing on the roadside.
The PBT (Preliminary Breath Test) is the handheld device some officers use before arrest. PBT results are generally not admissible to prove BAC at trial in Washington. Refusing a PBT does not trigger implied consent penalties.
The post-arrest DataMaster test at the station is the one that carries license consequences for refusal. Know which one you're being asked to take.
Washington's DUI statute applies to any drug, including legally prescribed medications. You can be charged with DUI for driving under the influence of a prescription you took exactly as directed.
That makes declining FSTs especially important if you're on prescribed medications. Anti-anxiety drugs, sleep aids, muscle relaxants, ADHD medications, and others can all affect FST performance in ways that look like alcohol impairment. We've successfully defended cases where the only "evidence" was poor performance on tests an officer should never have administered.
The same general rules apply: FSTs are voluntary, breath tests have implied consent consequences. But Washington has a zero-tolerance policy for drivers under 21: even 0.02 BAC can result in license suspension. The stakes are higher, the margin for error is smaller, and you need counsel involved immediately.
The same night, if possible. Many critical decisions (whether to take the breath test, what to say in initial questioning, whether to consent to a search) happen within hours of the stop. After arrest, you have 7 days to request a DOL hearing to contest a license suspension. Miss that window and you lose options.
We answer the phone after hours. Call 360.206.2826 from the station or as soon as you're released.
Every case is different, but a thorough DUI defense typically includes: review of all bodycam and dashcam footage; analysis of the officer's training and certification records; scrutiny of breath test machine calibration and maintenance records; challenges to the initial stop itself; review of the entire chain of arrest procedure; and identification of any constitutional violations.
The goal is not always trial. Many cases resolve through negotiation (to reduced charges, deferred prosecution, or dismissal) because the underlying evidence has problems we've identified.
The initial consultation is free. DUI defense fees vary based on the complexity of the case, whether it goes to trial, prior history, and several other factors. We're transparent about pricing from the first conversation and offer payment plans for most cases.
Whatever the fee, it's almost always a small fraction of what an uncontested DUI conviction will cost over time: insurance, ignition interlock, license reinstatement, lost wages, increased premiums for years afterward, and in some cases, employment consequences.
What declining FSTs has meant for our clients
Two anonymized case examples illustrating how the absence of FST evidence can shape an outcome. Identifying details have been changed.
"Mark" · Thurston County, 2023
Mark, 34, was pulled over leaving a friend's birthday dinner in Olympia just after 11 PM. He'd had three glasses of wine across the evening with dinner. When the officer asked if he'd been drinking, Mark acknowledged "wine with dinner."
When asked to step out and perform field sobriety tests, he said:
He repeated it twice more as the officer pressed. Mark was arrested anyway and taken to the station, where he submitted to the breath test, knowing the license consequences of refusing. His BAC came back at 0.091, above the legal limit.
Without FST results, the State's case rested almost entirely on the breath test and the officer's pre-arrest observations of "bloodshot eyes" and "odor of intoxicants." We challenged the breath test machine's calibration records, scrutinized the officer's narrative for inconsistencies, and argued the lack of corroborating impairment evidence.
Results vary based on individual facts. Past outcomes do not guarantee future results.
"Sarah" · Thurston County, 2024
Sarah, 47, a registered nurse, was pulled over on Highway 101 after an officer observed her drifting between lanes near Olympia. She had a valid prescription for alprazolam (Xanax) for generalized anxiety disorder and had taken her usual 0.5 mg dose with breakfast, six hours before being stopped.
The officer detected no alcohol on her breath but noted "glassy eyes," "slow speech," and "delayed responses." When asked to perform field sobriety tests, Sarah said:
She was arrested anyway under Washington's DUI statute, which applies to "any drug", including legally prescribed medications taken as directed. Her blood test showed alprazolam at therapeutic levels consistent with her prescription, with no other substances present.
We presented her medical records, her prescribing physician's testimony that she was well-tolerated on this dosage, and challenged the officer's "lane drift" observation against the actual road conditions that night: light rain, fresh paint, and a narrow shoulder construction zone documented in WSDOT records. Critically, the absence of FST results meant the State had no standardized evidence of motor impairment beyond the disputed lane drift.
Results vary based on individual facts. Past outcomes do not guarantee future results.
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