Should I take a field sobriety test (FSTs) if pulled over?

Field Sobriety Tests (aka Standardized Field Sobriety Tests).

I'm always asked whether someone should (or more commonly should have) take field sobriety tests when asked.  My common answer is no!  Now, I have heard of one instance wherein a friend of mine told me he took them (against my advice) and was let go.  That result is an anomaly in my experience.  If you have had anything to drink, or smoked marijuana recently, I would advise you skip these tests.  Why?  Well, the way in which these tests are administered are much different than how they were "standardized."  What I mean by that is the National Highway Traffic Safety Administration (NHTSA) conducted three tests (Horizontal Gaze Nystagmus, One Leg Stand and Walk and Turn) to determine the accuracy of predicting a BAC result based upon the clues observed and reached conclusions with percentages related to accuracy (the officers administered these tests on people who had been drinking, observed the clues, guessed what their BAC would be ultimately and whether they would have arrested the subject - of course these were volunteers at the study locations).  After calculating their results they standardized these three tests, meaning that if all three are administered correctly and the individual exhibits a number of clues, there is a high percentage they would submit a BAC reading above the legal limit (0.08).

Seem legit?  Well no...why you say?  Take for example the subjects who participated in this "standardization."  They were a group of family and friends and co-workers who were dosed with specific amounts of alcohol and asked to take these tests.  The tests were conducted without fear of arrest, so you can take out the anxiousness and nervousness, who were of relatively good health and average age.  So officers did not conduct these on older individuals or those suffering from any physical limitations.  Troopers often testify when they were conducting tests on individuals with physical limitations (i.e., knee injury, etc.), "oh I took into consideration their limitations."  Really, how?  Were they ever trained how to "take the limitation into consideration?"  NO!  Also, consider that the standardization took place in a controlled environment, meaning not on the side of the road, in the cold or rain with cars whizzing by at 70 mph.  How could these tests accurately represent a standardized result?  Simple, they can't and don't.  So when a trooper records clues from these tests, those clues themselves are skewed because the conditions of administration are vastly different than how they were trained. Keep in mind that this is how troopers are currently trained to administer these tests, typically in a high school gym, in controlled temperatures, with no distractions, administered on individuals who volunteered and are not subject to arrest. How standardized is that?  Ha!  Why would anyone want to participate in these feats of balance given the training?

My advice, simply politely decline, inform the trooper you are not impaired but that you have been advised not to participate in them.  Then, if arrested, ask to speak with an attorney at the earliest opportunity.

If you have been arrested for a DUI in Seattle or anywhere in Washington State, give me a call (425) 398-4323.  This is what I do and can help you!

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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.

Are Field Sobriety Tests a search? Yes!

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.