Walk the Line & I Don't Mean Johnny Cash

We've all heard of the field sobriety tests administered by law enforcement after a traffic stop to determine whether a driver is under the influence of alcohol--walk the line, touch your nose with your fingertips, recite the alphabet backwards, count forwards and backwards, etc. Performance on the field sobriety tests can be used by law enforcement to prove that the driver is under the influence, even if the driver is not over the legal limit. Because these tests are designed to provide law enforcement with probable cause and to prove the case that the driver is under the influence of alcohol; and it is, as a result, a really bad idea for drivers to complete the tests whether they have had one drink or many.

Many people think that complying with law enforcement's requests to do these tests is required. But in South Dakota, compliance with field sobriety tests is not required. According to SDCL 32-23-1.2, "Every person operating a vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a law enforcement officer, submit to a breath test to be administered by such officer. If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter." In layman's terms, this means that drivers must submit to a breath test, also know as a PBT test. If the breath test indicates that the driver has been drinking, the driver may then also be required to submit to a blood test. SDCL 32-23-10 also tells us that by operating a motor vehicle in South Dakota, we have implicitly consented to a test of our blood. Refusal to complete a breath or a blood test can also be admissible as evidence of guilt. See SDCL 32-23-10.1.

Recent research makes clear that lay people, bartenders, doctors, and even police officers are not very good at distinguishing between drunk and sober people. When distinguishing between drunk and sober is difficult for even trained professionals, it is nonsensical to assist police officers in their efforts to find probable cause or prove that you have been drinking when they otherwise may not be able to make such a determination. This is especially true when that same research illustrates that even structured means of assessing the level of intoxication (such as field sobriety tests) may not be terribly effective in truly determining whether someone is under the influence or not.

So what does all of this mean? If you are stopped by law enforcement in South Dakota, here are some handy tips:

(1) Do not participate in field sobriety tests;

(2) Be polite throughout the encounter, especially while refusing to do field sobriety tests;

(3) Do not make statements such as, 'I couldn't do those tests even if I were sober!';

(4) Do agree to a breath or blood test if required to do so.