You Can Say, “No,” to Field Sobriety Exercises
By: Adam L. Bantner, II
Board Certified Criminal Trial Law Attorney
As a criminal defense and DUI attorney, one thing is certain to occur over and over again at social gatherings; someone will ask me whether they should take a breath test and should they perform field sobriety exercises if they’ve been pulled over by law enforcement and suspected of committing a DUI. While the scope of this post does not include an answer to the first part (however, short answer is don’t give them your breath, but there are many, many factors you should consider prior to making that decision), I will attempt to explain the law and response that will best help you and your attorney as you defend your DUI.
The Law of Field Sobriety Exercises in Florida
First, the law on this issue is by no means clear and settled throughout the State. In fact, the law sometimes seems to vary between courtrooms in the same County in the same Circuit! However, there seems to be some consistency in general principles in Hillsborough County.
First, if an officer does not possess reasonable suspicion of impairment, they cannot request a suspect to perform field sobriety exercises. If an officer possesses reasonable suspicion of impairment, then can request performance of field sobriety exercises but they cannot compel performance. Where an officer possesses probable cause of driving under the influence, an officer can compel performance of field sobriety exercises. State v. Carney, 14 Fla. L. Weekly Supp. 287a (Hillsborough Cty. Ct., 13th Cir., December 7, 2006). The Court in State v. McFarland, FLWSUPP 2702MCFA, (Fla. Broward Cty. Ct. 2017), affirmed by State v. McFarland, 26 Fla. L. Weekly Supp. 546a (Fla. 11th Cir. Ct. 2018), agreed with the Carney analysis.
Next, for the purpose of this article, you don’t need to concern yourself with whether you believe the officer possessed reasonable suspicion of DUI, probably cause of DUI, or neither. These are legal conclusions that law enforcement, attorneys, and judges can and do get wrong. What you do need to know is that a refusal to perform the requested exercises will only be used against you in court if the officer possesses at least probable cause of DUI. If the officer possesses any level of suspicion less than probable cause, the request to perform the exercises is just that, a voluntary, consequence-free choice with the ability to say, “no.”
Now, should you say “no”?
Don’t Do The FSEs!!!
There are a myriad of reasons why one should not perform the field sobriety exercises; we are just going to focus on a couple of them.
One, if the officer is asking you to do the exercises, there is little to no chance that your performance on the exercises will dispel any suspicion of DUI by the officer. At this point in the investigation, he is in the evidence gathering phase and he is looking to build his or her case against you. In sum, you’re taking a ride to county jail regardless of your performance.
Second, you are, most likely, not going to do well on the exercises. The first test, the Horizontal Gaze Nystagmus, or “HGN,” is the most reliable by the scientific evidence but also the hardest to independently verify. Any recorded video will not show your performance. As such, the officer’s report of your performance is almost unassailable if he performed it to standards. Also, there are other factors that can cause nystagmus in addition to consumption of alcohol (fatigue, allergies, etc.).
The second and third tests, the Walk and Turn and One-Leg Stand, are also problematic. For most of the public, any performance of these exercises are likely your first attempts at either. Did you hit a homerun in your first little league at bat? Most likely not. Furthermore, the officer is not looking for simple completion. He is looking for clues that indicate impairment of which you will not be aware. For example, if you walk the line without falling, you may think you passed. However, if you raised your arms more than six inches, you missed heel-to-toe by more than an inch, you turned improperly, or you started early, you showed impairment. Also, you will be performing these, most likely, late at night, roadside, and under the stress of an impending arrest. Again, you are not likely to do well.
All this leads to the nearly inescapable conclusion that the rewards of a good performance are greatly outweighed by the dangers of poor performance. So when the officer asks, “Will you take these tests?” politely decline citing this article and your fears that the stress of the situation would cause you to perform poorly.
Call Hillsborough DUI Lawyer Today!
After the officer arrests you (because his mind was made up to do so the moment he made the request), bond out of jail and give us a call. We’d love to help! 813.397.3965.