Police officers, in their ceaseless effort to upgrade and refine their deception skills have increasingly made use of compound questions to trick folks they stop into consenting, as they view it, to take the preliminary breath test and field sobriety tests (FSTS). These are the stop scene tests to which you need not and must not consent; these voluntary tests provide the most damaging evidence against yourself in court and prevent challenging the validity of your arrest. Here’s how the cops do it.
When you are stopped, have identified yourself and the officer starts to investigate if they suspect you are under the influence, he will invariably ask you to step out of your vehicle, combining that request with a request or demand to perform the field tests, a compound question. The officer will phrase it, “step out of your vehicle and do some tests for me”. Stepping out is required; the tests are not. When you consent to step out of your vehicle, that required act is assumed by the cop to be your additional consent to take the tests and to which they testify against you in Court – that you consented to take the FST’s.
When the officer speaks to you, listen carefully, and when you hear a compound request like that, reply to the officer, “I am stepping out, but I do not consent to any testing and will not take any tests.”
Consenting to give up any right implies having a choice. Unless that choice is spelled out for you by the officer, you have not consented. That doesn’t matter to the cop. He will testify you consented to the FST’s, when you actually haven’t; you only consented to exit your vehicle.
You do not have to take the FST’s, but to remove any doubt in the officer’s mind that you are not taking them, state exactly and clearly that you will not be taking any tests as you step from your vehicle. Then, once out of the vehicle, don’t take any tests.
The officer will try to talk you into taking test with any of a number of lies detailed in A Toast to Silence, my book about how to avoid becoming another victim of police deception. Stand by your decision not to take any tests, no matter what the cop tells you. The most the officer can do is arrest you, which they will do whether or not you “cooperate” by giving evidence against yourself or “not cooperating” by remaining silent and not taking any tests. The obviously better choice is silence, and not testing.
