Tag Archives: DUI

Do I Have to Do Field Sobriety Exercises?

You Can Say, “No,” to Field Sobriety Exercises

This is the short version of the standard FSEs. The officer will be looking for much than the simple completion of these 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.

Can a Urine Test be Compelled?

Those who regularly practice DUI defense are very familiar with the Implied Consent law and how it impacts our client’s cases. Essentially, Implied Consent requires “any person who accepts the privilege … of operating a motor vehicle within this state … to have given his or her consent to submit to …  a test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath…” Any person who refuses such test after being lawfully arrested is subject to a year-long driver’s license suspension for a first refusal or a 18-month suspension and misdemeanor crime for a second or subsequent refusal. Fla. Stat. 316.1932(1)(a)1.a. The courts have found this to be legal.

Birchfield v. North Dakota

However, the courts look at urine and blood draws slightly different. In 2016, the U.S. Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) held that a warrantless breath test may be administered as a search incident to a lawful arrest, but a more intrusive blood test may not. But how does this effect the Implied Consent Law as it relates to a request for urine?

Request for Urine Test

The Implied Consent law with regards to urine is almost identical to the law with regards to breath. “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of chemical substances or controlled substances.”

The penalties for refusal are identical and the only difference is that the request to test requires probable cause to believe that the person is under the influence of a controlled substance as opposed to alcohol. But is this process still legal after Birchfield?

State v. Riddle

At least one court has answered that question in the negative. In State v. Riddle, a Sarasota County Court Judge held that a urine test was akin to a blood test and that it could not be compelled under Implied Consent. State v. Riddle, 26 Fla. L. Weekly Supp. 148a (Fla. Sarasota Cty. Ct. 2018).

In Riddle, the Defendant only consented to a test of his urine after having taken a breath test (.049 and .051 results), initially refusing the urine test, having Implied Consent read to him, and then consenting to the test (cocaine found in his system). 

The Court found his consent involuntarily given and suppressed the results of the test. “Mr. Riddle’s consent cannot be said to have been given freely and voluntary, because he was told that he must consent or face the consequences that included the threat of being charged with a separate crime for refusing. The Supreme Court has held that drivers do not impliedly consent to a blood test. Minnesota, North Dakota and South Dakota have recently ruled that the same rule of law applies to urine testing.

The Deputy’s reading of implied consent and the consequences of refusal effectively made Mr. Riddle’s consent involuntary. The State has failed to demonstrate under the totality of the circumstances standard that the consent was freely and voluntarily made.”

Call Us to Help With Your DUI

Call The Bantner Firm today at 813.397.3965 to see how we can help you with your DUI charge!