Yes. The standardized field sobriety tests (SFSTs) are tools that the arresting officer can use to show reasonable suspicion of intoxication, but they are in no way required as part of a DWI arrest.
The real crux of any DWI arrest is the breath test for alcohol level - the test to see if you are “over .08.” This is not done with the little PBT machine that the officer carries with them for roadside checks, but with the machine that agencies almost always keep at the station. Any result over 0.08 is regarded by law enforcement as incontrovertible, unassailable, absolute proof that you were too drunk to be operating a motor vehicle.
The problem, from a law enforcement perspective, is that they can't just go around asking people to take a breath test. Per the Missouri Revised Statutes, officers can only request a test when a “person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was operating a vehicle or a vessel while in an intoxicated condition.”
What are Reasonable Grounds?
Reasonable grounds are a level of belief that a person of ordinary judgment would have that is above just suspicion but short of absolute proof. In the context of DWI, it is when an average person would think it is more likely than not that you are drunk. There should be some sort of articulable basis, so that hypothetical average person should be able to describe in words why they think you are probably drunk.
Police officers are trying to get to this level of belief so they can legally ask someone to submit to a breath test, and field sobriety tests can help them get there. I have seen plenty of cases where the driver is so obviously intoxicated that the officer has reasonable grounds to arrest for DWI without even performing STSTs. But, in cases where the matter is less clear, the SFSTs have been held to be a highly reliable method of determining intoxication.
Can You Pass the Field Sobriety Tests and Fail the Breath Test?
Yes again. I assume in many cases, when a driver passes the SFSTs, the officer lets them go on their way, but I have no way of knowing. I have seen cases where the officer pushes on after a clean set of SFSTs, and the breath test comes back high. Everyone is different, and I suspect some young, athletic person with outstanding balance could pass the tests with a very high BAC. On the other hand, a substantial percentage of the population will fail while stone-cold sober, but that is another story.
Passing the SFSTs does provide some benefit, even if you fail the breath test. It all comes back to reasonable grounds. If the officer had no legal right to ask you to take a breath test, that test is not admissible. So, the officer will have difficulty justifying the breath test if there are no other apparent signs of intoxication, such as extremely poor driving and inebriated behavior.
What Happens If You Pass the SFSTs and Refuse the Breath Test?
Refusing the breath test puts you in a better but trickier position. Without a breath test or failed field sobriety tests, the court will have difficulty proving intoxication. On the other hand, the Department of Revenue will suspend your license for one year for refusing to take a breath test. The only way to fight this is to file a petition for review.
A petition for review hearing is difficult to win. The DOR must show that the arresting officer reasonably suspected that you were operating a vehicle in an intoxicated condition. Passed field sobriety tests should go a long way toward contesting this suspicion, but officers' observations are often given excessive credence. Still, an experienced defense attorney can make compelling arguments for the occasional win.
Hire a Lawyer!
If you have been arrested for DWI after passing the field sobriety tests, hire a lawyer! You are in a solid position to keep your license and avoid criminal repercussions, but you won't be able to do it on your own.
Ruth Beerup has been defending people against DWI charges for over 26 years. She has seen it all, including cases where the defendant passed the field sobriety tests but was still arrested and has achieved excellent results. Give her a call at 636-940-1111 to get started.