I think you have a solid defense. If you are not under arrest, you are free to go. Once he says you are ok, he does not have probably cause to ask you any more questions. BUT, you will need his version of these facts to match yours (or a witness). If the cop is willing to testify "I asked him to take this test because he seemed drunk," your reply of "did not" may not carry the day,
What happens when you refuse the roadside PBT is you get a ticket. The ticket is a civil infraction and will cost you $100. Basically, from the officer's standpoint, you did fairly well on your field-sobriety tests. Therefore, he wouldn't have probable cause to arrest you for OWI based upon the field tests alone. However, if he can get you to take the PBT at that point and you blow over the statutory limit of 0.08%, he can arrest you for being over the limit, regardless of how well you did on the field tests. In addition, he might've been trying to cover himself. Think about what happens to him if you do well on the roadside tests, he chooses not to PBT you, and three miles down the road you T-bone a minivan with a family in it and you're plowed drunk? He just had you on a traffic stop right before that and didn't check your alcohol level. Do you think anyone will care that he thought you were fine? I've seen many people do very well on the tests and then blow a very high BAC. Some people have gotten good at being drunk and are high functioning. So, if you only received a ticket for refuse PBT, you've managed to escape relatively unscathed. If you were arrested for OWI, you might have several valid defenses and should contact a criminal defense attorney. Good luck.
I assume you are referring to the portable breath test (PBT), which is normally administered as the final roadside test after the physical tests. The answer usually depends on the officer's training. Some officers are trained to administer the complete battery of tests including the PBT, even if he/she thinks you are fine to drive. Some officers just like to be thorough. But the officer's belief in your sobriety could be important if you challenge the arrest as an illegal or unreasonable detention if the officer reasonably believed you were fine to drive after the physical roadside tests.
The result could be a civil infraction charge. However, I would fight the charge on the grounds that the officer already determined you were sober based on what he told you, so the administration of the PBT was an illegal search.
Aaron J. Boria
Sign up to receive a 3-part series of useful information and legal advice about DUIs.