Field Sobriety Tests in Virginia: Can You Legally Refuse the Walk-and-Turn?

If you are pulled over in Virginia on suspicion of driving under the influence, the police officer will likely ask you to step out of your vehicle to perform a series of physical exercises. These are known as Field Sobriety Tests (FSTs). Officers use these tests to establish the probable cause necessary to arrest you under Va. Code Ann. § 18.2-266. However, many drivers are unaware that these tests are entirely voluntary, and participating in them often provides the prosecution with exactly what they need to secure a conviction.

Understanding your rights during a traffic stop is crucial, but fighting a DUI charge after the fact requires professional experience. If you have been arrested, we strongly suggest you hire a skilled defense attorney. You can browse our US Lawyers Directory to find a local legal professional who can challenge the validity and administration of any field sobriety tests used against you.

Standardized Field Sobriety Tests (SFSTs) in Virginia

While officers in cities like Richmond, Newport News, and Chesapeake may ask you to touch your nose or recite the alphabet backwards, only three tests are standardized by the National Highway Traffic Safety Administration (NHTSA). These three tests are commonly admitted as evidence in courts like the Richmond General District Court, Richmond.

Horizontal Gaze Nystagmus (HGN)

The HGN test involves the officer asking you to follow a pen or a small flashlight with your eyes without moving your head. The officer is looking for an involuntary jerking of the eyeball (nystagmus) as your eyes track side-to-side. According to NHTSA guidelines, alcohol consumption exaggerates this jerking motion. However, officers often administer this test incorrectly by moving the stimulus too fast or holding it at the wrong angle, making the results highly subjective and contestable in court.

The Walk-and-Turn Test

This is a divided attention test. The officer will instruct you to take nine heel-to-toe steps along a straight line, pivot on one foot, and take nine heel-to-toe steps back, all while keeping your arms at your sides and counting out loud. The officer is watching for specific clues: stepping off the line, using your arms for balance, taking the wrong number of steps, or stopping while walking. It is a highly unnatural movement that even sober individuals struggle to perform flawlessly on the side of a busy, dark highway.

The One-Leg Stand Test

In this test, you are required to raise one foot approximately six inches off the ground, point your toe out, keep your arms at your sides, and count out loud (one thousand and one, one thousand and two, etc.) until the officer tells you to stop (usually for 30 seconds). The officer will penalize you if you sway, hop, put your foot down early, or use your arms to balance.

Medical Conditions That Falsely Indicate Intoxication

One of the primary reasons defense attorneys advise against performing FSTs is that they are inherently flawed. Numerous perfectly innocent medical and physical conditions can cause a person to fail these tests, creating a false impression of intoxication.

Neurological and Eye Conditions

The HGN eye test can be compromised by natural resting nystagmus, glaucoma, or recent head trauma. A large portion of the population has a natural jerking in their eyes that has nothing to do with alcohol. If the officer does not ask about your medical history before the test, your attorney can challenge the results.

Inner Ear and Balance Disorders

Conditions like Vertigo, Meniere's disease, or even a recent inner ear infection can completely destroy your natural balance. If you suffer from these conditions, passing the Walk-and-Turn or One-Leg Stand is nearly impossible, regardless of your sobriety.

Orthopedic Issues and Weight

Even the NHTSA manual explicitly states that the Walk-and-Turn and One-Leg Stand tests may not be valid for individuals who are over 65 years old, are more than 50 pounds overweight, or have back, knee, or hip injuries. A skilled attorney will use your medical records to invalidate the officer's scoring.

Can You Legally Refuse Field Sobriety Tests?

Yes. Unlike the official evidentiary breath test at the police station (which is governed by the Implied Consent law under Va. Code Ann. § 18.2-268.2), roadside Field Sobriety Tests are 100% voluntary in Virginia. You face no license suspension or legal penalties for politely declining to perform the Walk-and-Turn or the One-Leg Stand. The Preliminary Breath Test (PBT) offered on the side of the road is also completely voluntary. Precedents like Jones v. Commonwealth, 279 Va. 52 (VA Supreme Court 2010) illustrate how courts scrutinize the reliability of these roadside assessments when making probable cause determinations. By refusing these tests, you deny the police the subjective evidence they often rely on to justify an arrest.

How Much Does a DUI Defense Lawyer Cost?

If you are arrested after refusing or failing FSTs, securing a defense attorney is your next step. Costs vary based on the complexity of suppressing the evidence.

Frequently Asked Questions (FAQ)