Do I Have to Take a Field Sobriety Test in California? Your Rights at a DUI Stop
The short answer: if you are 21 or older and not on DUI probation, you do not have to take field sobriety tests in California, and you do not have to blow into the handheld roadside breath device, called a preliminary alcohol screening or PAS test. Both are voluntary, and the officer is supposed to tell you the PAS test is voluntary. What you cannot refuse without serious consequences is the chemical breath or blood test after you have been lawfully arrested, because California's implied consent law under Vehicle Code section 23612 attaches to that test and a refusal costs you your license for at least a year. This guide from Gramling Law Group explains which tests are which, what refusing each one does to your case, and how the tests are actually used by prosecutors at the Riverside Hall of Justice, the Victorville courthouse, the Rancho Cucamonga courthouse, and the San Bernardino Justice Center.
Why the distinction matters. Drivers pulled over on Interstate 15 through the Cajon Pass toward Victorville and Barstow, on the 10 through Ontario and Redlands, or on the 91 through Corona and Riverside are usually asked to do three things in sequence: step out and perform balance tests, blow into a handheld device, and then, after arrest, submit to a breath or blood test at the station or jail. The law treats those three requests completely differently, and officers rarely explain the difference. Our guide to what happens after a DUI arrest in California covers the rest of the process.
What Are Field Sobriety Tests?
The three standardized tests. Field sobriety tests, often called FSTs, are physical and mental coordination exercises an officer asks a driver to perform at the roadside before deciding whether to arrest. The three tests validated by the National Highway Traffic Safety Administration are the horizontal gaze nystagmus test, in which the officer watches your eyes follow a pen or finger, the walk-and-turn test, and the one-leg stand. Officers in the Inland Empire also commonly use non-standardized tests such as the finger-to-nose, the Romberg balance test with your head tilted back and eyes closed, counting backward, and reciting part of the alphabet.
What the officer is looking for. Each standardized test has a list of "clues," and the officer counts them. On the walk-and-turn, for example, starting too soon, stepping off the line, missing heel to toe, raising your arms, and taking the wrong number of steps are each a clue. The officer writes the clues in the report and later testifies that the number of clues indicated impairment. Those reports are written after the arrest decision has already been made, which is one reason defense attorneys treat them with skepticism.
They are not pass or fail. Nothing in the Vehicle Code defines a passing score, and the officer decides on the spot whether your performance supports an arrest. Sober people with knee injuries, inner ear problems, anxiety, obesity, age over 65, or simply poor balance routinely show clues on these tests, and the roadside conditions on the shoulder of the 15 at night, with wind, gravel, uneven pavement, and passing headlights, make them harder still.
Are Field Sobriety Tests Mandatory in California?
No, for most adult drivers. There is no statute in California that requires a driver to perform field sobriety tests, and there is no license penalty for declining them. The implied consent law under Vehicle Code section 23612 applies to chemical tests of breath or blood after a lawful arrest, not to roadside coordination exercises. You can politely tell the officer that you decline to perform field sobriety tests, and that choice is lawful.
You still have to stop and identify yourself. Declining the tests does not mean refusing to cooperate with the stop. You must pull over, provide your license, registration, and proof of insurance, and step out of the car if ordered to. Refusing those lawful orders can lead to a separate charge under Penal Code section 148 for resisting or delaying an officer. Our guide to resisting arrest under Penal Code 148 explains where the line is.
Can the refusal be used against you? Prosecutors sometimes argue that declining field sobriety tests shows consciousness of guilt, and California courts have generally allowed evidence of a refusal to perform the tests to be admitted and argued. The defense response is that a sober person has every reason to decline a subjective test administered by the person who already suspects them, and jurors in Riverside and San Bernardino County generally understand that. A refusal of the roadside tests is far less damaging than a poor performance captured on body camera, which the prosecutor will play in slow motion.
Why declining is usually the better choice. Field sobriety tests exist to build probable cause for an arrest. If the officer already smells alcohol and has seen bad driving, you will likely be arrested whether or not you perform the tests, and performing them simply adds evidence. If the officer has very little, declining the tests denies the state the evidence it needs, and a weak stop becomes a candidate for a suppression motion under Penal Code section 1538.5. Our guide to 1538.5 motions explains how probable cause is challenged.
Is the Roadside Breath Test (PAS) Mandatory?
The PAS test is voluntary for drivers 21 and older who are not on DUI probation. The handheld device the officer holds up at the roadside is a preliminary alcohol screening device, and Vehicle Code section 23612 provides that when an officer requests a PAS test, the officer must advise you that it is voluntary, that it is being requested to help decide whether to arrest you, and that taking it does not satisfy your obligation to submit to a chemical test after arrest. Many officers rush or skip that advisement, and the body camera footage will show whether they gave it.
Under 21 is different. If you are under 21, Vehicle Code section 23136 makes it unlawful to drive with a blood alcohol level of 0.01 percent or more, and the statute treats a refusal of the PAS test as a refusal that triggers a license suspension through the DMV. Vehicle Code section 23140 separately makes it an infraction for a driver under 21 to drive with 0.05 percent or more. Our guide to under-21 DUI in California explains the zero tolerance rules.
DUI probation is different. If you are on probation for a prior DUI, Vehicle Code section 23154 makes it unlawful to drive with 0.01 percent or more and requires you to submit to a PAS test or other chemical test when lawfully detained, and a refusal triggers a suspension. Probation terms imposed under Vehicle Code section 23600 also typically require you to submit to any chemical test on request. Our guide to a second DUI within ten years covers the probation rules.
Why the PAS result matters. The PAS device is less accurate than the evidentiary breath machine at the station, and its result is usually used only to justify the arrest. But the number travels: it appears in the police report, in the DMV's paperwork, and sometimes in the prosecutor's argument. Declining the PAS test when you are entitled to leaves the state with only the officer's observations to justify the arrest.
The Chemical Test After Arrest Is Not Voluntary
Implied consent attaches after a lawful arrest. Under Vehicle Code section 23612, every person who drives in California is deemed to have consented to a chemical test of breath or blood to determine alcohol content if lawfully arrested for driving under the influence in violation of Vehicle Code section 23152 or Vehicle Code section 23153. You generally get to choose breath or blood, and if drugs are suspected you may be required to give blood because breath cannot detect them. Our guide to marijuana and drug DUI under Vehicle Code 23152(f) explains the drug side.
What a refusal costs. If you refuse the chemical test after arrest, Vehicle Code section 13353 requires the DMV to suspend your license for one year on a first offense, with longer revocations for prior offenses, and that suspension is imposed even if the criminal case is later dismissed and even if you were not in fact impaired. Vehicle Code section 23577 adds enhanced penalties in the criminal case for a refusal, and under Vehicle Code section 23578 the court treats a refusal as an aggravating factor at sentencing. Our guide to refusing a breathalyzer in California covers the refusal consequences in detail.
Warrants and blood draws. Under Birchfield v. North Dakota the police may require a breath test after a lawful DUI arrest without a warrant, but a blood draw generally requires a warrant or consent, and under Missouri v. McNeely the natural dissipation of alcohol does not by itself create an exigency that excuses the warrant requirement. In practice, Riverside and San Bernardino County officers obtain electronic warrants within minutes when a driver refuses, and the blood is drawn anyway, so the refusal typically produces both a blood result and a refusal suspension. That is the worst of both worlds, and it is why the chemical test is the one test drivers generally should not refuse.
The ten-day DMV deadline. Whether you took the chemical test or refused it, the officer will take your license and give you a pink temporary license that is also a notice of suspension, and under Vehicle Code section 13558 you have ten days to request a DMV hearing or the suspension takes effect automatically. Missing that window is the most common mistake we see in Inland Empire DUI cases. Our guide to the DMV hearing after a DUI explains how to request it and what the DMV must prove.
Do Police Have to Read Miranda Rights Before Field Sobriety Tests?
Generally no. Under Berkemer v. McCarty, roadside questioning during an ordinary traffic stop is not custodial interrogation, so Miranda warnings are not required before the officer asks whether you have been drinking or asks you to perform the tests. Under Pennsylvania v. Muniz, the physical performance of the tests and the slurring of your speech while you do them are not testimonial, so they are admissible even without warnings, although the Court held that a question requiring the driver to calculate the date of his sixth birthday was testimonial. Once you are arrested and questioned at the station, Miranda applies.
What that means for you. Because Miranda will not save you from your own words at the roadside, the practical protection is to say as little as possible. You can answer identification questions, decline the field sobriety tests and the PAS test politely, and state that you would like to speak with a lawyer. Our guides to your rights when questioned by police and to whether you can talk your way out of charges explain why the answer to "how much have you had tonight" is almost always used against the driver.
How Field Sobriety Tests Are Attacked in Court
The officer's training and administration. The standardized tests are only considered reliable when administered the way the NHTSA manual prescribes, and officers frequently deviate: they skip the instruction phase, demonstrate the test incorrectly, run the horizontal gaze nystagmus test with the driver facing flashing lights or passing traffic, or administer the walk-and-turn on a sloped shoulder with no visible line. Each deviation undermines the value of the clues, and the officer's own training records and the body camera footage are the evidence. A defense attorney who knows the manual can turn a confident officer into an uncertain one on cross-examination.
Medical and physical explanations. Nystagmus has many causes other than alcohol, including certain medications and medical conditions, and balance tests are affected by age, weight, footwear, injuries, and fatigue. A driver who told the officer about a bad knee and was tested anyway has a built-in explanation for every balance clue. Those facts need to be documented early, which is one of the first things we do in a new DUI case.
The arrest decision and probable cause. Field sobriety tests are the main justification officers give for the arrest, so if the tests were poorly administered or the clues were marginal, the defense can argue the arrest lacked probable cause and move to suppress the chemical test result under Penal Code section 1538.5. Under Rodriguez v. United States the officer also cannot prolong a traffic stop to conduct a DUI investigation without reasonable suspicion of impairment, so a stop for a broken taillight that turned into twenty minutes of tests on a hunch is vulnerable. Our guide to whether police can search your car explains the limits on roadside detentions.
The per se count does not depend on the tests. Vehicle Code section 23152, subdivision (b), the 0.08 percent count, is proved by the chemical test, and under People v. Bransford and People v. Vangelder the defense cannot attack that count by arguing the breath machine is generally unreliable or by challenging the partition ratio. Field sobriety evidence matters most on the subdivision (a) impairment count and on cases near the 0.08 line, where a strong performance on the tests supports the argument that the driver was not impaired despite the number. Our guide to how to beat a DUI in Riverside County puts these pieces together.
Common Mistakes Drivers Make at a DUI Stop
Talking too much. Admitting to "two beers" gives the officer the drinking admission the report needs, and it is repeated in every document that follows. Volunteering where you were coming from and how long ago you stopped drinking lets the prosecutor's expert build a retrograde extrapolation.
Performing the tests to prove a point. Drivers who are confident they are fine often insist on doing the tests, and then the body camera records them stumbling on a dark gravel shoulder on the 15 near Barstow with trucks passing at seventy miles an hour. The tests are designed to be hard, and the officer is the only judge.
Refusing the wrong test. Declining the roadside tests is lawful and often wise; refusing the chemical test after arrest costs a year of driving and adds a refusal enhancement, and the blood is usually drawn under a warrant anyway. Know which request you are facing before you answer.
Missing the DMV deadline. The ten-day window under Vehicle Code section 13558 runs from the arrest, not from your court date, and it closes before most people have hired a lawyer. Call a DUI attorney in the first few days, not the first few weeks. Our guide on whether you need a lawyer for a first DUI explains what an attorney does in that window.
Where Inland Empire and High Desert DUI Cases Are Heard
San Bernardino County. DUI arrests by CHP on Interstate 15 through the Cajon Pass and by Victorville, Hesperia, and Apple Valley officers are generally filed at the Victorville courthouse, Barstow and Interstate 15 desert arrests at the Barstow courthouse, Ontario, Upland, and Rancho Cucamonga arrests at the Rancho Cucamonga courthouse, and San Bernardino, Redlands, and Highland arrests at the San Bernardino Justice Center. Confirm your courthouse on your citation and on the court's website. See our guides to DUI at the Victorville courthouse, DUI at the Barstow courthouse, and DUI at the Rancho Cucamonga courthouse, and our Victorville, Hesperia, and Barstow criminal defense pages.
Riverside County and beyond. Riverside, Corona, and Moreno Valley DUI cases are heard at the Riverside Hall of Justice, Temecula and Murrieta cases at the Southwest Justice Center, and Palm Springs and Indio cases at the Larson Justice Center. Los Angeles County drivers appear at courthouses such as Pomona, Van Nuys, and Long Beach, Orange County drivers at the Central, Harbor, West, and North Justice Centers, and Ventura County drivers at the Ventura County Hall of Justice. See our Riverside and Corona criminal defense pages.
Frequently Asked Questions
Can I refuse a field sobriety test in California?
Yes, if you are 21 or older and not on DUI probation. No California statute requires a driver to perform field sobriety tests, and there is no license suspension for declining them. The implied consent law under Vehicle Code section 23612 applies only to the chemical breath or blood test after a lawful arrest. You must still stop, identify yourself, and follow lawful orders to step out of the vehicle.
Is the handheld breath test at the roadside the same as the chemical test?
No. The roadside device is a preliminary alcohol screening test, and Vehicle Code section 23612 requires the officer to tell adult drivers that it is voluntary and does not satisfy the chemical test requirement. The chemical test is the evidentiary breath test at the station or the blood draw after arrest, and refusing that test triggers a one-year suspension under Vehicle Code section 13353.
Will refusing the field sobriety tests get me arrested?
It can, but so can taking them. If the officer already has evidence of impairment such as the odor of alcohol, bloodshot eyes, and bad driving, an arrest is likely either way. Declining the tests denies the officer additional evidence, and if the remaining evidence was thin, the arrest can be challenged under Penal Code section 1538.5. Taking the tests almost never helps a driver avoid arrest once the officer suspects drinking.
Can the prosecutor tell the jury I refused the field sobriety tests?
Usually yes. California courts have generally allowed evidence that a driver declined field sobriety tests and have permitted the prosecutor to argue it shows consciousness of guilt. The defense is entitled to respond that a sober driver has good reasons to decline a subjective test, and the jury decides what weight to give it. A refusal is far less damaging than a recorded poor performance.
Do I have to answer questions about how much I drank?
No. You must identify yourself and provide your documents, but you are not required to answer questions about drinking, where you were, or when you stopped. Under Berkemer v. McCarty those roadside questions do not require Miranda warnings, which means your answers are admissible, so the protection is to decline to answer politely and ask for a lawyer.
What should I do in the ten days after a DUI arrest?
Request the DMV hearing and hire a lawyer. Vehicle Code section 13558 gives you ten days from the arrest to request an administrative hearing, and the request stays the suspension until the hearing is held. Daniel Gramling, Esq. handles both the DMV hearing and the criminal case and offers flat-fee DUI defense and limited-scope options so you know the cost before you commit.
Talk to an Inland Empire DUI Defense Attorney
Gramling Law Group defends DUI cases at the Victorville and Barstow courthouses, the Rancho Cucamonga courthouse, the San Bernardino Justice Center, the Riverside Hall of Justice, the Southwest Justice Center, the Larson Justice Center, and courthouses throughout the Inland Empire, the High Desert, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for DUI cases in Victorville, Hesperia, Barstow, Rancho Cucamonga, Riverside, and Corona. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our DUI defense practice serving the Inland Empire, Los Angeles County, and Southern California.
Arrested for DUI in the Inland Empire or the High Desert? See our Victorville criminal defense, Barstow criminal defense, and Riverside criminal defense pages and our Inland Empire criminal defense guide.
Gramling Law Group
3600 Lime St, Bldg 2, Riverside, CA 92501
Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
Follow Daniel Gramling on Instagram: @californiafamilylawyer
Comments