No court in the state of Washington has concluded Field Sobriety
Tests (FSTs) are a search, conversely no court has held they are not a search.
Confusing? You betcha and this issue is argued all the time across
courts in Washington.
Here is my take: FSTs are a search of an individual subject
to an exception of the warrant requirement under the 4th Amendment of the
United States Constitution. Why?
1.
Courts have held that a
person does not have any requirement to submit to these requests to participate
in FSTs. Looking at that conclusion from a common sense perspective leads
me to believe (as I often argue) that FSTs are in fact a search which would be
subject to a warrant, absent consent of the individual or another exception
(not exigent circumstances however as I believe Missouri v. McNeely and the
Gauthier decision have clearly knocked that argument on its face).
2.
In Washington State,
Article I Section 7 of our State Constitution affords individuals greater
protection to be free from unreasonable searches than that of the 4th Amendment
to the US Constitution. Now, since courts have upheld that a person has a
right to refuse these tests (City of Seattle v. Personeus and City of Seattle
v. Stalsbroten for example) then that infers the officer/trooper/deputy does
not have any right, as they might under what is called a Terry stop (see, Terry
v. Ohio), to stop and frisk and individual based upon the officer's belief that
weapons or contraband might be present. However, that Terry stop doesn't
afford the officer the opportunity to further search them absent an exception
to the warrant requirement.
I recently had a prosecutor argue to the court that the exigency
exception (immediate disposal, destruction or dissipation of evidence) allows
for the refusal of FSTs to be presented as evidence of a guilty conscious.
That argument is laughable. In that scenario what the prosecutor is
telling the court is this, "judge, since officers can't get someone to consent
to a search via FSTs, they should be allowed to just make them do it under this
exception!" Can you imagine an officer forcibly pushing you up and
down a line to do a walk and turn test or holding out your leg to do the one
leg stand or worse, forcing your eyes to move on a horizontal plane for the
horizontal gaze nystagmus test. It is comical to think prosecutors really
present this argument to judges, but I have seen it time and again and it is
just dead wrong! No court has ever held officers have a right to force
someone to participate in FSTs. Therefore, viola! FSTs are a search
requiring consent. Now I have already blogged about whether a Refusal to
participate in these FSTs can be used against you and in that instance a judge
at the King County District Court held, correctly, they could not. Why
all judges can't see this common sense approach is beyond me, but I will
continue to argue it.
The plain and simple truth is, if you have had anything to drink,
in my opinion, you are better off not participating in FSTs!
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer. His practice emphasizes DUI defense. He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.
