Refusing Field Sobriety Tests: Can You Go to Jail? ARS 28-1381
Refused field sobriety tests and worried about jail? Statutorily, refusing is not a crime, but most officers will place you under arrest when you decline, and a DUI conviction under A.R.S. § 28-1381 means at least 10 consecutive days in jail. Call us before your first court date.
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Will You Go to Jail If You Don’t Submit to Field Sobriety Tests?
Statutorily, no. Refusing field sobriety tests in Arizona is not a crime and carries no jail sentence by itself. But in practice, most officers will place you under arrest when you decline, and a DUI conviction under A.R.S. § 28-1381 starts at 10 consecutive days in jail.
Statutorily, no. No Arizona statute makes declining field sobriety tests a crime, and there is no jail sentence or license suspension attached to the refusal itself. In practice, though, most officers will place you under arrest when you decline, which usually means booking and time in custody before release, and the refusal becomes part of the DUI case.
The jail sentence risk comes from that DUI case: if you are convicted, the DUI sentence includes mandatory jail. Whether you performed the roadside tests or not does not change that sentencing law.
For whether you should take the tests at all, see our companion guide, Field Sobriety Test in Arizona: Should You Submit?. This article is about what refusing actually costs you.
Is Refusing Field Sobriety Tests a Crime in Arizona?
No. The only refusal Arizona’s DUI laws penalize directly is refusing the post-arrest breath, blood or urine test under A.R.S. § 28-1321, and even that penalty is a license suspension, not jail. The roadside exercises are not part of that law.
There is one line you must not cross. In State ex rel. Verburg v. Jones, 211 Ariz. 413 (App. 2005), the Court of Appeals compared declining the tests to resisting arrest: you have the physical power to do either, but resisting a lawful arrest is its own crime. Decline politely and keep your hands visible. Never pull away, argue, or interfere physically.
Will You Be Arrested If You Refuse?
Most likely. In practice, most officers will place you under arrest when you decline field sobriety tests. Refusing removes one piece of evidence, but officers arrest on everything else they observe:
- the driving that caused the stop, such as weaving or speeding;
- the odor of alcohol, bloodshot eyes, or slurred speech;
- admissions about drinking (“just two beers”);
- a portable breath test under A.R.S. § 28-1322, if you took one;
- and, under Arizona case law, the refusal itself.
Once arrested, you may be booked, cited and released, or held to see a judge, depending on the agency and the circumstances.
Where Does Jail Actually Come From?
From a DUI conviction. Under A.R.S. § 28-1381 subsection I, a person convicted of a first misdemeanor DUI must be sentenced to not less than ten consecutive days in jail. Under subsection J, the judge may suspend all but one day of that sentence if the person completes court-ordered alcohol or drug screening, education or treatment.
Extreme, super extreme and aggravated DUIs carry far more. Our guide to whether you can go to jail for a DUI in Arizona walks through each level. Refusing field sobriety tests does not add to any of those numbers. What it can do is change the evidence the jury hears about whether you were impaired.
What Does Each Kind of Refusal Cost You?
| What you refuse | Law | Direct consequence |
|---|---|---|
| Roadside field sobriety tests | No statute; Verburg | No charge, no jail, no license suspension. The refusal may be admitted as evidence. |
| Portable breath test before arrest | A.R.S. § 28-1322 | The statute sets no license suspension for declining it. |
| Breath, blood or urine test after arrest | A.R.S. § 28-1321 | 12-month license suspension (2 years for a second refusal within 84 months); test usually obtained by search warrant. |
| (Conviction for DUI) | A.R.S. § 28-1381 | At least 10 consecutive days in jail for a first offense; all but one day may be suspended after screening or treatment. |
How Do Prosecutors Use a Field Sobriety Test Refusal?
They argue that you refused because you expected to fail. Verburg allows that evidence when the officer had reasonable suspicion of DUI, because a lawful request for the tests is treated as a lawful search.
The defense answer depends on the facts. If the stop or the request lacked reasonable suspicion, the refusal’s foundation is in question. If it comes in, the video usually shows a calm, polite decline, and there are ordinary reasons to decline: roadside conditions, injuries, fear, or simply following advice not to help build a case against yourself.
What Should You Do Now If You Refused?
- Check which test you refused. If it was the post-arrest breath or blood test, you have 30 days from the notice to request an MVD hearing on the suspension; see the ADOT hearing for ARS 28-1321;
- Write everything down while you remember it: the time, the location, what the officer said and what you said;
- Do not discuss the stop with anyone but your lawyer, and do not post about it;
- Keep every document you were given: the citation, the release papers and any MVD notice;
- Talk to a defense attorney before your first court date. The body-camera footage and the officer’s report are the core of the case.
The Experts We Bring to the Table
A refusal case turns on what happened at the roadside and what the State can prove without the tests. We bring the people who reconstruct both.
Body-Camera & Dash-Camera Analysts
What the Video Shows
Show the calm, polite decline the report may describe as something else.
Police-Practices Consultants
Reasonable Suspicion
Test whether the stop and the request for tests were legally justified.
Forensic Toxicologists
The Blood or Breath Result
Review any later chemical test, its collection, and its analysis.
Standardized Field Sobriety Test Instructors
Officer Training
Compare the officer’s training and procedures with the testimony.
Medical Experts
Other Explanations
Explain conditions that mimic the signs officers rely on, such as eye or balance problems.
MVD Hearing Specialists
The License Track
Handle the 30-day deadline when a chemical-test refusal is alleged.
How Tamou Law Group Defends Field Sobriety Test Refusal Cases
Pre-charge advocacy. DUI charges are often filed weeks after the arrest, once blood results come back. We step in during that window, preserve the video and handle any license deadline.
Disclosure strategy. We obtain the body-camera and dash-camera footage, the officer’s report and training records, and any chemical test data, and we look for the gaps between them.
Plea and collateral analysis. If negotiation makes sense, we measure each option against the real consequences: the jail floor under A.R.S. 28-1381, interlock and license requirements, and the effect on employment and your record.
Related guides: should you submit to field sobriety tests, refusing a breathalyzer in Arizona, and the Arizona DUI charges hub. Call 623-321-4699.
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When you are looking for the best Phoenix DUI lawyers, these are the independently verified credentials that matter, earned by Founding Attorney Michael Tamou and a full team of attorneys, including former prosecutors, public defenders, and law enforcement.
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Frequently Asked Questions
Will I go to jail if I don’t do field sobriety tests in Arizona?
Statutorily, no: declining is not a crime and carries no jail sentence. In practice, most officers will place you under arrest when you decline. A DUI conviction under A.R.S. 28-1381 then requires at least 10 consecutive days in jail for a first offense, with all but one day suspendable after treatment.
Is refusing a field sobriety test a crime in Arizona?
No. No Arizona statute makes declining the roadside tests a crime. The only DUI-related refusal with a direct penalty is refusing the post-arrest breath, blood or urine test under A.R.S. 28-1321, and that penalty is a license suspension. Physically resisting an arrest, however, is a separate crime.
Does refusing field sobriety tests suspend my license?
No. Roadside field sobriety tests are not part of the implied consent law. The 12-month suspension, or two years for a second refusal within 84 months, applies to refusing the chemical test requested after a DUI arrest under A.R.S. 28-1321, not to declining the roadside exercises.
Can police arrest me if I refuse field sobriety tests?
Yes, and most officers will. They arrest on the other evidence, such as the driving, the odor of alcohol, slurred speech, admissions about drinking, or a portable breath test, and Arizona courts allow the refusal itself to be used as evidence. Refusing does not prevent an arrest when the officer has probable cause.
Can my refusal be used against me in court?
It can. In State ex rel. Verburg v. Jones, the Arizona Court of Appeals held that a refusal to submit to field sobriety tests is admissible at a DUI trial when the officer had reasonable suspicion. A defense attorney can challenge that suspicion and give the jury the real reasons you declined.
How much jail time is a first DUI in Arizona?
Under A.R.S. 28-1381, a first-offense DUI requires at least 10 consecutive days in jail, and the judge may suspend all but one day if you complete court-ordered alcohol or drug screening, education or treatment. Extreme, super extreme and aggravated DUIs carry substantially more jail or prison time.
What is the difference between refusing field sobriety tests and refusing a breath test?
Field sobriety tests are roadside exercises before arrest, with no license penalty for declining. The breath, blood or urine test after arrest falls under the implied consent law, and refusing it brings a 12-month suspension and usually a blood draw by search warrant. The two are often confused at the roadside.
Will I spend the night in jail after a DUI arrest?
It depends on the agency and the circumstances. Some people are booked and released after processing, and others are held to see a judge at an initial appearance. Refusing field sobriety tests does not by itself decide which happens. A lawyer can often help you prepare for release conditions.
What should I do after refusing field sobriety tests?
Write down what happened, keep every document you were given, do not discuss the stop with anyone else, and check whether any refusal notice involves a license suspension with a 30-day hearing deadline. Then talk to a defense attorney before your first court date.
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