What This Advice About Field Sobriety Tests Gets Right
Pierce County Sheriff Keith Swank went on the radio recently to defend his department’s handling of a senior officer’s DUI arrest. His top detective, Major Chadwick Dickerson, crashed into an SUV, injuring multiple people.
Deputies on scene found no signs of impairment. WSP troopers arrived two hours later and found bloodshot eyes and a strong smell of alcohol. Dickerson eventually acknowledged two vodka sodas on the golf course. Pierce County prosecutors declined to charge him.
While defending all of this publicly, Swank offered some legal advice.
“If WSP made a traffic stop, first off, you should never do a field sobriety test. I don’t know why you did that, even if you drink or not, but that’s another discussion. Some other time, and I’m giving that free legal advice to everybody out there … if a driver is smart, they shouldn’t give law enforcement more evidence … If you’re drunk, we’ll still figure it out.”
He’s not wrong. He’s also not a lawyer, and the parts he skipped over matter.
Why the Sheriff's Perspective Matters
Swank’s own history is instructive here. He was arrested for DUI in 2007 while sitting in a parked car in Raymond, Washington, keys in the back seat, engine off. A trooper smelled alcohol when he opened the door. Swank has spent years disputing the circumstances.
So the man offering free legal advice about field sobriety tests runs a department that didn’t administer one after a serious accident involving his own top detective, and he himself was arrested for DUI while parked.
The advice is still correct.
What Field Sobriety Tests Actually Are
Field sobriety tests are voluntary in Washington. You do not have to take them. The walk-and-turn, one-leg stand, and horizontal gaze nystagmus tests are all voluntary in Washington. You are not legally required to take any of them.
The three standardized tests have accuracy rates between 65 and 77 percent under controlled laboratory conditions. That means a completely sober person has roughly a one-in-three chance of failing them.
That’s under optimal conditions. On the side of a road at night, cold, anxious, with a flashlight in your face, being watched by someone who has already decided you might be drunk — those numbers do not improve.
The tests are graded by the officer who stopped you. Every wobble is evidence. Every glance down at your feet is a clue. Every misstep is documented. The scoring is not neutral and was never designed to be. It is designed to detect impairment, which in practice means it is designed to confirm what the officer already suspects.
What Swank Didn’t Say
Here’s what Swank left out: if you decline the field sobriety test, you will probably still be arrested.
Washington law allows arrest based on the totality of an officer’s observations. The red eyes. The faint smell of alcohol. The hesitation when asked if you’d had anything to drink. The time of night. The way you braked coming to a stop. Any combination of these can provide probable cause for a DUI arrest with no field sobriety test at all.
Criminal defense attorneys often say that once an officer asks you to step out of the car, an arrest is increasingly likely. You may end up in another car, just not yours.
What the field sobriety test adds to that situation is documentation. It gives the prosecution something to play in court, video of you on one leg at 2 a.m., losing your balance, eyes tracking wrong. It adds a specific, detailed, officer-graded failure to a report that already describes you as impaired. It is, in the most literal sense, giving law enforcement more evidence.
Which is exactly what Swank said not to do.
The Zach Scott Case
A few years ago, we wrote about Zach Scott, the New York Mets’ interim general manager in 2021.
He left a party at owner Steve Cohen’s house in Greenwich, Connecticut, and was found by White Plains police at 4:30 in the morning, parked near an intersection a block from the station. He took the field sobriety test. He failed it. He refused the breathalyzer at the station. The Mets fired him the next day.
His attorneys took it to trial. They played the bodycam footage. The judge said no neutral observer would have concluded he was drunk, let alone intoxicated. Any impairment he showed, the judge noted, was most likely fatigue. Scott was acquitted.
He still lost his job. His license was still suspended for refusing the breathalyzer. And the news coverage of his failed field sobriety test was almost certainly a major factor in his termination from his dream job, long before the acquittal.
The lesson is not that you should take the test and hope a judge sees it the same way. It doesn’t take the test in the first place. The failed field test in the news, on the bodycam, in the police report, does damage that an eventual acquittal does not undo.
The Breath or Blood Test Is Different
The field sobriety test and the chemical test are not the same thing, and they are not governed by the same rules.
Once you are under arrest, Washington’s implied consent law applies. Refusing the breath or blood test means an automatic license suspension of at least a year, and the refusal itself becomes evidence at trial. That is not optional in the same way a field sobriety test is optional. The calculus is different, and the consequences are different.
When Sheriff Swank says, " Don’t take the field sobriety test,” he’s right. When he implies it gives you a way out, he’s leaving out the part where you’re almost certainly getting arrested anyway. The only question is what they have on you when you do.
If You’re Facing a DUI Charge in Washington State
A DUI investigation starts long before you enter a courtroom. Whether you agreed to field sobriety tests, refused a chemical test, or were arrested after a traffic stop, early legal advice can make a significant difference. Contact Knauss Law to discuss your case before making further decisions.
Matthew Knauss is a criminal defense attorney in Washington State. He represents clients facing DUI charges throughout the Greater Seattle area. If you’ve been stopped or charged, call us before anything else.
425-300-5566 