Virginia DUI: Refusing Field Sobriety Tests and Consciousness of Guilt

Can you refuse to take a field sobriety test in Virginia?  Can that refusal be used against you at trial for DUI in Virginia?

Well, the good news is that you can refuse to take any field sobriety test in Virginia.[1]  See, e.g., Jones v. Commonwealth, 279 Va. 52 (2010).  And, the other good news is that the court cannot use your refusal as evidence of your “consciousness of guilt.”  Id.  But, there’s some bad news.

The bad news is that the court can still treat your refusal as circumstantial evidence tending to show your awareness that your consumption of alcohol would affect your ability to perform a field sobriety test if other facts show your consumption of alcohol and the discernible effect of such consumption on your mental or physical state.  Id.   Facts showing the discernible effect of alcohol consumption on one’s mental or physical state will surely include the ever present smell of alcohol, glassy eyes and slurred speech.  And facts showing your consumption of alcohol will surely include any affirmative answer to the ever present question “have you been drinking?”  As such, there are very few instances in which you could be prosecuted for driving under the influence and your refusal to take a field sobriety test would not be relevant to the issue of the officer’s probable cause to arrest you.

In sum, refusing a field sobriety test very well might still be in your best interests in Virginia, but that refusal can be used as evidence to establish probable cause for your arrest in most instances.


[1] Field sobriety tests include the one-legged stand, walk and turn, horizontal gaze nystagmus test, etc.  Field sobriety tests do not include any preliminary breath test or formal breath or blood test.