Field Sobriety Tests

In Virginia, field sobriety tests are voluntary, and many drivers do not learn that until the stop is over. If an officer asked you to follow a pen with your eyes, walk a straight line, and balance on one leg, you may have assumed you had no choice. Whether field sobriety tests are mandatory is one of the first questions people ask us after a Virginia DUI stop, and the answer affects everything that follows.

The problem is that these tests are designed to produce evidence against you. A few seconds of swaying, a missed step, or a foot set down early can become the officer’s reason to arrest you. For a driver in Norfolk, Virginia Beach, or anywhere across Hampton Roads, a DUI charge can put your license, your job, and your record at risk before you have spoken to anyone on your side.

That is where we come in. We defend drivers against DUI charges in the same Hampton Roads courts where these stops play out, and we know how officers use field sobriety tests to build a case.

Are Field Sobriety Tests Mandatory in Virginia?

Field sobriety tests are not mandatory in Virginia. No state law requires a driver to perform them, and you can decline without committing a separate offense. These are the roadside exercises an officer asks you to do before any arrest, such as following a moving object with your eyes or walking heel to toe. They are tools the officer uses to gather evidence, not legal requirements under the law.

Declining a field sobriety test is not the same as refusing the chemical breath or blood test that comes after an arrest. Those follow different rules, and knowing the difference early can change how you respond.

What Are Field Sobriety Tests?

Field sobriety tests are physical and visual exercises that an officer uses at the roadside to look for signs of impairment. The National Highway Traffic Safety Administration (NHTSA) has formulated three standardized field sobriety tests. These are:

• The horizontal gaze nystagmus test (HGN)
• The 9 step walk-and-turn test
• The one-leg stand test

An officer scores each test by counting “clues” based on their own observations.

The Horizontal Gaze Nystagmus (HGN) Test

The horizontal gaze nystagmus test measures the involuntary jerking of your eyes as you follow a moving object, usually a pen. Alcohol can make that movement more pronounced, but so can fatigue, certain medications, and several medical conditions. Nervousness can also cause this twitching. Passing lights on moving vehicles or the flashing lights still going on top of an officer’s squad car can too.

The 9 Step Walk-and-Turn Test

The 9 Step Walk-and-Turn Test asks you to take nine heel-to-toe steps along a line, turn on one foot, and walk back. Officers look for clues such as stepping off the line or using your arms to balance, and a single misunderstanding of the detailed instructions can register as a failure. The officer is also supposed to put you in the proper “starting position” while they give you detailed instructions. Improper turns or stepping of the line can also count as clues. It is important to note the line you are walking on can be one predrawn on the street, or an officer can make you walk along an “imaginary line.”

The One-Leg Stand Test

The one-leg stand test requires you to hold one foot off the ground and count aloud while keeping your balance. Swaying, hopping, or putting your foot down all count as clues. Age, weight, footwear, and the surface you stand on all affect how anyone can perform on this test. Prior injuries or having bad balance can negatively impact even a sober person performing this test.

Field Sobriety Tests vs. Breath and Blood Tests in Virginia

Virginia law treats the tests at a DUI stop differently depending on when they happen. The roadside tests, including field sobriety tests and the roadside handheld breath test, are voluntary. The chemical test that comes after an arrest at the police station is not.

The Preliminary Breath Test at the Roadside

Before an arrest, an officer may offer a preliminary breath test using a handheld device also known as a PBT. Under Virginia Code § 18.2-267, this roadside breath test is voluntary, and you have the right to decline it. Its result helps an officer decide whether to make an arrest, but it is not admitted at trial as proof of your blood alcohol level, unless you challenge whether there was probable cause for the officer to make the arrest.

Post-Arrest Chemical Testing and Implied Consent

The rules change once you are arrested. Under Virginia’s implied consent law, Virginia Code § 18.2-268.2, anyone who drives on a Virginia highway is considered to have agreed to a breath or blood test if they are arrested for DUI within three hours of the offense. This post-arrest chemical test is the one the law actually requires, and refusing it brings its own penalty, separate from the DUI charge. Note, “highway” has its own definition under Virginia Code § 46.2-100 and is not just limited to interstate highways, but also includes the vast majority of public roadways and certain private roadways as well.

What Happens if You Refuse or Fail a Field Sobriety Test

Refusing or failing a field sobriety test does not protect you from arrest. An officer can still arrest you based on other observations, such as bad driving behavior, the odor of alcohol, impaired motor functions, or slurred speech.

The two refusals are not the same. Declining the roadside field sobriety test carries no separate penalty. Refusing the post-arrest chemical test is different. Under Virginia Code § 18.2-268.3, unreasonably refusing this chemical test is a civil offense for a first violation, and the court suspends your license for one year on top of any penalty for the DUI conviction.

How a Hampton Roads DUI Defense Attorney Challenges Field Sobriety Test Evidence

Because field sobriety tests depend so heavily on the officer, a Hampton Roads DUI defense attorney has real room to challenge them. We examine how each test was administered, whether the officer gave the standardized instructions, and whether the conditions at the scene were fair.

We also look at whether the stop and the arrest were supported by probable cause. If an officer lacked a lawful basis at any step, we can ask the court to suppress the evidence that followed.

Why Choose Welch & Wright, PLLC for Your DUI Defense

Choosing who to call after a DUI stop is a decision you have to make quickly, often before you fully understand what you are facing. What most drivers want is a straight answer about their options and someone who knows the local courts.

We are Hampton Roads natives who defend these cases in the courts where they are heard, from Norfolk to Virginia Beach to Yorktown. Nick Wright brings a former prosecutor’s view of how the Commonwealth builds a DUI case, and we are ready to take a case to trial when a plea is not the right answer.

Client Testimonials

“Nick Wright at Welch & Wright did an outstanding job representing me in my case. He was able to get the original charge reduced to a non-moving violation, which I truly did not expect. His communication was clear, professional, and reassuring throughout the entire process, and he made everything feel straightforward and easy to manage. I felt well represented from the beginning to the end and am incredibly grateful for the outcome he achieved. I would highly recommend Nick Wright and the Welch & Wright team to anyone in need of legal representation.” — Ben N.

“Nick T Wright is an amazing lawyer, his skills, confidence, and abilities in my case made me feel the confidence I needed for my family and myself to get through this matter. Which concluded in a dismissal of all three of my charges. Highly recommend!” — Gannon R.

Frequently Asked Questions About Field Sobriety Tests

Does the Officer Have to Tell Me a Field Sobriety Test Is Optional?

No. Virginia law does not require an officer to tell you that field sobriety tests are voluntary before asking you to perform them. You can decline whether or not the officer says so.

How Many Field Sobriety Tests Can an Officer Ask Me to Do?

There is no set number. The three standardized tests are the most common, but an officer can ask for more, and you do not have to complete any of them. You can decline at any point, even after you have started.

Do Field Sobriety Tests Apply to Marijuana or Drug DUI Stops?

Yes. An officer can use field sobriety tests during a marijuana or other drug DUI stop, and the same voluntary rule applies.

Will a Failed Field Sobriety Test Show Up on My Record?

Not on its own. A field sobriety test is not a charge or conviction. What can appear on your record is a DUI conviction, and a poor performance may be part of the evidence used to reach one. Challenging the tests can affect that outcome.

Get Help With Your Hampton Roads DUI Case Today

A DUI charge that started with a few roadside tests can move fast, and the choices you make early can shape the outcome. The sooner someone reviews how your stop was handled, the more options you tend to have.

We look closely at whether your field sobriety tests were given fairly and whether the stop holds up, and we offer a free case evaluation to drivers across Hampton Roads. Call us at 757-707-8803 or reach out through our contact form to talk through where your case stands.