Dan Montalvo, Attorney At Law

       As a Criminal District Attorney and as a Criminal Defense Lawyer I have watched hundreds of DWi video tape. I have noticed that only a handful fully know their rights regarding Field Sobriety Tasks or Tests (FSTs).  These are the pen following, line walking and standing tests the officers use on the side of the road.  Most have no clue that they don't have to submit to these tests.  The word has gotten out reguarding the breath or blood test.  Most people know that they have the right to refuse both and all criminal lawyers would advise against submitting to these tests.  This has advantages regarding your trial but has negative consequenses regarding suspension of your driving priviledges.

          On the other hand, not many people are aware of their right to refuse to perform FSTs.  Officers are not required to inform you of this right.  Therefore they usually go directly into their performance and one does not give it a second thought.  THINK TWICE!  This is done to allow the officers to gather evidence against you and testify for the state during a criminal trial.  Without your cooperation all they will have as evidence is the driving facts and perhaps the smell of alcohol, slurred speech and/or bloodshot eyes.  The amount of evidence is severely restricted.  Of course, this does not guarantee an acquittal and your arrest is almost certain (although it probably already was).  However, you should always avoid helping any police agency make their case against YOU.

                      With most police interviews you have the absolute right to consult an attorney.  However, the law does not consider the performance of FSTs as a custodial interrogation that triggers the police informing you of your right to have an criminal lawyer present.  Now you know.  The police cannot force you physically or in any other manner to perform FSTs.  The function of FSTs is to determine whether or not you have lost "you mental or physical faculties due to the introduction of alcohol," i.e. evidence gathering for your trial.  Never assist the police in making their case against you.  Be respectful of the police.  A good way of handling the matter is letting them know that you will cooperate fully in the presence of your criminal lawyer.  The police may be video taping you and this tape will be viewed by the Criminal District Attorney or shown in court and used against you!