Field Sobriety Tests are not Mandatory
Field sobriety tests (FSTs) are not required by law, unlike alcohol/drug tests. For those tests, Ohio has an implied consent law. Ohio Revised Code section 4511.191 says any person who operates a vehicle (or is in physical control of a vehicle) on a public road (or private property used by the public) is deemed to have consented to a test of their blood, breath, urine or oral fluid for alcohol and drugs. This implied consent applies whenever a person is arrested for OVI or Physical Control of a Vehicle Under the Influence. There is no Ohio implied consent law for field sobriety testing. Drivers suspected of OVI or Physical Control have not implicitly consented to performing these tests.
There Are No Sanctions for Refusing FSTs
There are sanctions for refusing a drug/alcohol test when arrested for OVI. If an arrestee refuses a test of their blood/breath/urine/oral fluid, their driver’s license is suspended, pursuant to Ohio Revised Code section 4511.191. The length of the suspension, and the waiting period for driving privileges, depends upon the number of times that person has refused or been convicted of OVI in the past ten years. The suspension can be from one year to five years. The waiting period for driving privileges can be from 30 days to three years. There is no driver’s license suspension for refusing to perform FSTs. Under Ohio law, there are no other sanctions imposed for refusing FSTs.
The Refusal of FSTs May be Used in Court
If a person goes to trial on an OVI charge, the prosecution may introduce evidence the person refused to perform FSTs. The prosecution will likely argue the defendant’s refusal is evidence of their ‘consciousness of guilt’. The prosecution will say the defendant refused FSTs because they knew they would perform poorly-because they knew they were under the influence.
A defendant in that position may argue admitting evidence of their FST refusal would violate their right against self-incrimination, because the officer did not administer Miranda warnings before requesting FSTs. Ohio courts have concluded FSTs are not subject to the Miranda warnings because the tests are not ‘testimonial’ (they are not statements or factual assertions). Accordingly, Ohio courts have held a defendant’s refusal of FSTs is admissible at trial. There is an argument, based on Pennsylvania v. Muniz, the FSTs are testimonial because they “supported an inference that his mental state was confused”. However, that argument has never been addressed by an Ohio appellate court.
Assuming the prosecution is permitted to admit evidence of the defendant’s FST refusal, a defendant can rebut the prosecution’s ‘consciousness of guilt’ argument. The defendant can testify they refused to perform FSTs for a legitimate reason. Maybe the person knew they would not be able to stand on one leg or walk heel-to-toe due to a medical condition. Maybe the person knew they would perform poorly simply because they have bad balance. Maybe the person didn’t want to take a test under stressful conditions without being given an opportunity to prepare and without being told what is being graded on the test. Maybe they believed the tests were irrelevant because they do not relate to driving ability.
Conclusion
Drivers in Ohio have not implicitly consented to perform FSTs if suspected of OVI. There is no law requiring drivers to perform FSTs, and there are no sanctions for refusing them. However, a driver’s refusal will be an issue raised by the prosecution if the case goes to trial. The weight the jury gives to the refusal will depend on the circumstances surrounding it.