Can You Refuse To Take Field Sobriety Tests in Virginia?

If a Virginia police officer asks you to step out of your vehicle and perform field sobriety tests, you may feel like you have no choice but to comply. But roadside exercises such as walking heel-to-toe, standing on one leg, or following an object with your eyes are not the same as the chemical testing that may be required after a DUI arrest.

Understanding that distinction matters because field sobriety tests are commonly used to help an officer decide whether there is probable cause to make an arrest. How you performed, what the officer claims to have observed, and what appears on body-camera or dash-camera footage can all become important evidence in a DUI case.

At Welch & Wright, PLLC, we closely examine how field sobriety tests were requested, administered, and interpreted to determine whether the evidence actually supports the officer’s conclusions.

Can You Refuse a Field Sobriety Test in Virginia?

Yes. Virginia law does not require drivers to perform roadside field sobriety tests such as the walk-and-turn, one-leg stand, or eye test.

You must still provide your license and registration and may need to step out of the vehicle when directed. Whether to perform the field sobriety tests is a separate decision.

What Happens If You Refuse Field Sobriety Tests?

Virginia does not impose a separate charge, fine, or license suspension for declining field sobriety tests. Refusing them, however, does not end the investigation.

The Officer Can Still Arrest You

An officer can make a DUI arrest without field sobriety test results. Probable cause may come from other facts, such as your driving, speech, appearance, statements, the odor of alcohol, or an open container.

Which Field Sobriety Tests Do Virginia Officers Use?

Virginia law enforcement officers commonly use three standardized field sobriety tests, each with set instructions and specific clues they look for. An officer may use one, two, or all three during a DUI stop.

Horizontal Gaze Nystagmus (HGN)

The HGN test looks for involuntary jerking of the eyes as they follow a moving object. The officer watches for six possible clues across both eyes while moving a pen, finger, or light in front of you. How the officer gives and performs the test can affect the result.

Walk-and-Turn

The walk-and-turn test uses eight possible clues, including starting too soon, stepping off the line, raising your arms for balance, and taking the wrong number of steps. You walk heel to toe, turn, and walk back while the officer watches your movements and whether you follow the instructions.

One-Leg Stand

The one-leg stand uses four clues: swaying, hopping, putting your foot down, and raising your arms. You hold one foot about six inches off the ground and count aloud for about 30 seconds. The instructions and timing matter when evaluating the result.

Why Field Sobriety Test Results Can Be Challenged

A poor field sobriety test result does not prove impairment by itself. Roadside conditions, physical limitations, and the way the officer administered the test can all affect performance.

• Medical conditions or eye disorders may affect an HGN test.
• Uneven pavement, footwear, or the lack of a clear line may affect the walk-and-turn.
• Age, weight, or prior knee, back, or ankle injuries may affect the one-leg stand.
• Traffic, weather, headlights, and other distractions can make roadside testing harder.
• Incorrect instructions, demonstrations, or timing can change how the results should be viewed.

Roadside Tests vs. the Breath Test After Arrest

Virginia law treats roadside testing and post-arrest chemical testing differently:

• Field sobriety tests: Voluntary.
• Preliminary breath test: Voluntary under § 18.2-267.
• Chemical test after arrest: Subject to Virginia’s implied consent law.

The Preliminary Breath Test at the Roadside

The handheld test offered before arrest falls under § 18.2-267. Its result may be used to help establish probable cause for an arrest, but it is not admissible at trial to prove the DUI charge. Refusing the test also cannot be used as evidence in the prosecution.

If an officer suspects you of driving under the influence, they must advise you of your rights under § 18.2-267 before administering the test. Under a 2024 amendment, if that advisement is not given, the Commonwealth cannot use the resulting breath sample at a suppression hearing to establish probable cause.

The Chemical Test After Arrest

Under § 18.2-268.2, implied consent applies after a qualifying DUI arrest made within three hours of the alleged offense. The three-hour limit runs to the arrest, not to the test itself.

An unreasonable refusal can carry license consequences. Under § 18.2-268.3, a first refusal is a civil offense that carries a one-year suspension. A qualifying repeat breath-test refusal within 10 years is a Class 1 misdemeanor with a three-year license revocation. Repeat blood-test refusals are treated differently under the statute.

The technical defenses to an implied consent charge run on their own track.

Frequently Asked Questions About Refusing Field Sobriety Tests in Virginia

Does Refusing a Field Sobriety Test Make You Look Guilty?

No. Field sobriety tests are voluntary and there are many innocent reasons a person might choose to decline. A prosecutor may argue that a refusal matters, but refusing a field sobriety test is a single factor and does not by itself prove DUI. The Commonwealth still has to prove the charge beyond a reasonable doubt using admissible evidence from the stop and arrest.

Does an Officer Have to Tell You the Roadside Breath Test Is Optional?

Yes. Virginia Code § 18.2-267 requires the officer to advise you of your rights, including your right to refuse. Without that advisement, the Commonwealth cannot use the breath sample at a suppression hearing to establish probable cause.

What Should You Say If an Officer Asks You to Do Field Sobriety Tests?

If you choose to decline, keep your response simple: “I’d rather not perform the field sobriety tests.” Avoid arguing or volunteering explanations. Continue complying with other lawful instructions from the officer.

Request a Free Case Evaluation Before Your First Hampton Roads DUI Court Date

By the time your court date arrives, the officer’s report and any available roadside video already form part of the Commonwealth’s case. We compare that record with what Virginia law allowed the officer to request, what the officer had to explain, and how the tests were administered.

That review can reveal whether the field sobriety testing or breath evidence gives us grounds to challenge the case. We represent people facing DUI charges throughout Norfolk, Virginia Beach, Chesapeake, Newport News, Hampton, Portsmouth, Suffolk, York County, and Williamsburg and James City County.

Call (757) 707-8803 or use our contact form to request a free case evaluation.