Field Sobriety Exercises

The officer’s request that the defendant perform field sobriety exercises must be lawful. A lawful request requires the police officer have at least reasonable suspicion that the individual is driving under the influence. State v. Ameqrane, 39 So. 3d 339, 341 (Fla. 2d DCA 2010); Department of Highway Safety & Motor Vehicles v. Guthrie, 662 So. 2d 404 (Fla. 1st Dist. Ct. App. 1995).

Merely smelling an odor of an alcoholic beverage upon an individual’s breath is not inconsistent with the ability to operate a motor vehicle in compliance with the law. See State v. Kliphouse, 771 So. 2d 16 (Fla. 4th DCA 2000). Instead, the officer must have articulable facts and rational inferences drawn from those facts that reasonably suggest that criminal activity has occurred or is imminent. An officer’s inarticulable hunch fails to satisfy these constitutional prerequisites.

Physical sobriety exercises are pre-arrest investigative tools that help police officers develop probable cause for a DUI arrest. The exercises are designed to divide a suspect’s attention to assess physical coordination, judgment, and mental acuity.

In State v. Taylor, 625 So.2d 911, 912 (Fla. 2d DCA 1993), the court reasoned that the pre-arrest field sobriety exercises are law enforcement tools to confirm an officer’s determination that an individual is intoxicated. To a large degree, field sobriety exercises involve an officer’s subjective opinion of performance and impairment.

In many DUI cases, the criminal defense attorney will file a motion to suppress any mention of the field sobriety exercises or any other evidence gathered after that if the arresting officer didn’t have reasonable suspicion that the driver was DUI or because the officer used words that suggested participating in the exercises was required.

In most DUI cases, the arresting officer will perform the following roadside exercises:

  1. The Horizontal Gaze Nystagmus (HGN);
  2. The Walk and Turn Exercise;
  3. The One Leg Stand Exercise; and
  4. The Finger to Nose Exercise.

If the prosecutor discusses the officer’s training to administer field sobriety exercises, the defense is permitted to question the officer about ways he did not perform the exercises in conformity with his training.

The criminal defense attorney can often use the Florida Standardized Field Sobriety Testing Screening Procedures Manual to impeach the officer when he fails to administer the exercises correctly.

The defense can also call an expert witness to testify about problems with the way the arresting officer administered or evaluated the driver’s performance on field sobriety exercises.

Attorney for Field Sobriety Exercises in Florida

If you were charged with DUI, you need a DUI defense attorney who can contest the officer’s testimony about your performance on field sobriety exercises.

In many DUI cases, your attorney will request that the court limit testimony about field sobriety exercises. The exercises are supposed to be voluntary, so if you are coerced into performing them, the court might throw the evidence out.

If any testimony about the exercise is allowed into evidence, your attorney needs to be able to challenge whether the exercises were administered properly and evaluated fairly.

Contact a DUI defense lawyer at the Sammis Law Firm in Tampa, FL. With offices in Tampa in Hillsborough County and New Port Richey in Pasco County, we focus on fighting the DUI charges aggressively at every stage of the case.

Call (813) 250-0500 today.

Field Sobriety Exercises as Lay Observations of Impairment

In State v. Meador, 674 So.2d 826 (Fla. 4th DCA 1996), the testimony elicited from the officer regarding the field sobriety exercises would be presented as a lay witness and not as an expert witness.

Pursuant to Meador, the prosecutor with the State Attorney’s Office is not permitted to elicit testimony regarding the use of terms such as “test, “pass,” “fail,” or “points.”

The Court in Meador determined that “such terms should be avoided to minimize the danger that the jury will attach greater significance to the results of the field sobriety exercises than to other lay observations of impairment.” Meador, at 674 So.2d 833.

At trial, the criminal defense attorney will often point out that the “finger-to-nose” exercise is not part of the NHTSA Standardized Field Sobriety Evaluations. The National Highway Traffic Safety Administration (NHTSA) evaluated the Finger to Nose exercise and REJECTED it as part of the Standardized Field Sobriety Evaluations.

Compel or Request Field Sobriety Exercises

When can the performance of field sobriety exercises be compelled or merely requested? If the officer does not have at least reasonable suspicion of alcohol or drug impairment, then the driver cannot even be asked to perform field sobriety exercises. State v. Carney, 14 Fla. L. Weekly Supp. 287 (Fla. Hillsborough Cty. Ct. 12/7/06).

If the officer has reasonable suspicion of DUI, the officer can request that the driver perform field sobriety exercises, but the State must prove the consent was voluntary. State v. Harper, 15 Fla. L. Weekly Supp. 232 (Fla. 17th Cir. Ct. 1/7/08).

If the officer requests that the driver perform field sobriety exercises and refuses, the officer must tell the defendant about the consequences of not performing field sobriety exercises. Otherwise, the refusal to perform the exercises would not be admissible.

If the officer has probable cause for DUI, the officer can use language that would suggest the driver is required to submit to field sobriety testing without that action leading to the suppression of evidence.

In other words, the officer should say, “I want you to perform,” versus Would you be willing to perform.”

The suppression of the defendant’s performance of the field sobriety exercises is not generally required unless the defendant alleges and shows coercion on the part of law enforcement in getting the defendant to perform. State v. Milian, 18 Fla. L. Weekly Supp. 414 (Fla. Broward Cty. Ct. 12/9/10).

Is the “Refusal” to Submit to FSEs Admissible?

As provided in section 316.1932(1)(a), Fla. Stat., the refusal to perform pre-arrest or post-arrest field sobriety exercises is generally admissible if the officer followed the required procedures. State v. Holland, 76 So.3d 1032 (Fla. 4th DCA 2011). Under the right circumstances, the evidence of the refusal to perform FSEs is relevant to show “consciousness of guilt.” State v. Taylor, 648 So.2d 701 (Fla. 1995).

Being asked to submit to FSEs does not necessarily constitute compelled self-incrimination. Additionally, using the FSEs at trial or presenting evidence about the alleged refusal to submit to them does not necessarily violate due process principles as it does not constitute a crucial confrontation requiring the presence of counsel.

The law does not require a driver to be advised of his right to refuse to participate in pre-arrest field sobriety exercises. State v. Whelan, 728 So.2d 807 (Fla. 3d DCA 1999).

In these cases, however, the driver can file a motion to suppress or exclude any evidence about the alleged refusal to take the field sobriety exercises by using a “confusion” or a “safe harbor” argument when the confusion or safe harbor is created by law enforcement. See Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986); Menna v. State, 846 So.2d 502 (Fla. 2003); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

To avoid this “safe harbor” argument, the officer should explain the field sobriety exercises and the reason for the request. The officer will often tell the suspect that if they don’t participate in the field sobriety testing, the officer will have to decide impairment based on what he has seen so far.

Additionally, the officers are trained to tell the suspect that “your refusal to participate in the field sobriety exercises will be admissible against you in court.”

But what if the officer fails to tell the suspect any negative consequence of refusing? In State v. Taylor, 648 So.2d 701 (Fla. 1995), the Florida Supreme Court addressed the admissibility of a refusal to submit to a field sobriety exercise when the suspect was never warned of any negative or adverse consequence. Those negative or adverse consequences might include:

  • the reason for the request was explained
  • a warning that any refusal to submit might be used against the suspect in court
  • a warning that without the benefits of performance on the exercises, the officer would have to base his decision upon the available evidence (i.e., the suspect’s decision to decline the offer to demonstrate a lack of impairment would result in the officer relying upon his observations to determine impairment, which could lead to the suspect’s arrest)
  • a warning that the suspect’s license to drive would be administratively suspended

The defense might also argue that using the refusal at trial violates the due process clause of the Florida or federal constitution.

If the officer did not advise the suspect of any adverse consequences of refusing to perform the field sobriety tests, the trial court should not have allowed the refusal into evidence. Howitt v. State, 266 So. 3d 219, 223 (Fla. 5th DCA 2019) (Cf. Menna, 846 So.2d at 502–08 ; Taylor, 648 So.2d at 701–05).

Fifth Amendment Right to Refuse a Field Sobriety Test

In Taylor v. State, 648 So.2d 701 (Fla. 1995), the court addressed the admissibility of the refusal to perform field sobriety exercises. However, the court’s decision was limited to whether a comment on the failure to consent to field sobriety exercises violated the defendant’s Fifth Amendment rights.

The court did not address the issue of whether the comment on the Defendant’s failure to consent to field sobriety exercises violates his Fourth Amendment Rights.

In order for a prior decision to control a subsequent case pursuant to the operation of stare decisis, the issues presented by the latter must have been raised, considered, and determined in the former.Twyman v. Roell, 166 So. 215 (Fla. 1936).

The doctrine of stare decisis will not apply to any questions not raised and considered in the former case, even if the question may have been involved in the facts. Benson v. Norwegian Cruise Lines, Ltd., 859 So.2d 1213 (Fla. 3d DCA 2003) case dismissed, 885 So.2d 388 (Fla. 2004).

A person has a Constitutional right not to consent to a warrantless search. “A defendant who has a constitutional right to refuse to consent to a search … should be free to exercise that right with impunity.

No comment on its exercise should be permitted to raise an inference of guilt if the Fourth Amendment right against unreasonable search and seizure is to be given its full meaning.” State v. Gomez, 572 So.2d 952 (Fla. 5th DCA 1991).

The performance of field sobriety exercises is subject to Fourth Amendment principles. State v. Whelan, 728 So.2d 807 (Fla. 3d DCA 1999).

When the refusal to perform field sobriety exercises is nothing more than an exercise of his Constitutional right not to consent to a warrantless search, the refusal should be suppressed at trial.

In these cases, the defense can file a motion requesting that the court prohibit the State from presenting any evidence of or making any argument that the Defendant failed to consent to the performance of field sobriety exercises.

Using the Field Sobriety Exercises Manual for Impeachment

In Gladding v. State, 10 Fla. L. Weekly Supp. 985a (Fla. 15th Cir., Oct. 10, 2003) the court found:

[D]uring the trial by jury, the Appellant attempted to use the Florida Standardized Field Sobriety Testing Screening Procedures Manual as an authoritative source to question Trooper Bates on whether he administered the field sobriety exercises in accordance with the manual and his training.

Appellant argued that Trooper Bates was not testifying as a lay person or to lay observations, and therefore claimed that he should be able to question the officer as an expert.

The trial court sustained the State’s objection to Appellant’s cross-examination of Trooper Bates using the training manual.

An officer’s testimony regarding their observations of a person’s performance on field sobriety exercises is not scientific evidence, therefore an officer’s testimony should not be treated as expert testimony, but as a lay witness. See Meador at 832.

Furthermore, in Meador v. State, the Fourth District Court of Appeals held that a police officer’s observations of a defendant’s performance on field sobriety exercises should be treated no differently than other testimony of lay witnesses concerning their observations about the driver’s conduct and appearance. Meador v. State, 674 So.2d 826, 831 (Fla. 4th DCA) [21 Fla. L. Weekly D1152a].

In State v. Feinstein, 21 Fla. L. Weekly Supp. 587a (Fla. Broward Cty. Ct., Dec. 9, 2013), the Court explained:

. . . The defendant argues that once a witness testifies as to their training and experience, they become an expert witness in lay witness clothing, and that the defendant should be able to call his own expert to refute the testimony of the State’s witness.

The defendant seeks to have the Court prohibit the state’s witness from testifying regarding their training and experience in field sobriety exercises or any other areas related to this case.

Other courts in Florida have found that the defense can impeach the officer using his manual for administering the field sobriety exercises.

The courts in Florida also allow the defense to call an expert witness on the limitations of field sobriety testing when it comes to judging impairment or for the purpose of showing that the performance on field testing did not indicate impairment.

The Crash or Accident Report Privilege and FSEs

The courts in Florida have found that the accident/crash report privilege does not apply to field sobriety exercises. State v. Whelan, 728 So.2d 807 (Fla. 3d DCA 1999).

In many DUI cases, the defense attorney will file a motion to determine whether the arresting officer had probable cause or reasonable suspicion when he made the statement to the Defendant regarding the pre-arrest field sobriety exercises.

As a preliminary matter, the court must determine whether the arresting officer merely requested that the Defendant submit to field sobriety exercises or used words that compelled the defendant to do so.

The standard for lawfully requesting field sobriety exercises in a DUI investigation is “reasonable suspicion”. State v. Castaneda, 79 So3d 41 (4th DCA 2011); State v. Taylor, 648 So2d 701 (Fla. 1995).

A traffic infraction, coupled with the odor of alcohol, bloodshot red eyes, and an admission to drinking alcohol, has been determined to establish reasonable suspicion. State v. Origi, 912 So2d 69 (4th DCA 2005).

The standard for lawfully compelling field sobriety exercises is “probable cause.” State v. Liefert, 247 So2d 18 (2nd DCA 1971).

Probable cause for a DUI arrest must be based upon more than the belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system. State v. Kliphouse, 771 So2D 16 (4th DCA 2000).

Florida’s Three Distinct Positions on Requesting FSEs

Florida law has no statute related to the administration of field sobriety exercises. In Schmerber v. California, 384 U.S. 757 (1966), however, the United States Supreme Court made it clear that the 5th Amendment privilege against self-incrimination does not apply to most field sobriety exercises.

As a result, the field sobriety exercises during a DUI investigation often fall into the category of “physical evidence” rather than “testimonial evidence”.

The case law pertaining to the admissibility of field sobriety exercises is divided into three distinct positions.

The first line of cases reason that if an officer has reasonable suspicion for a DUI investigation, he can require the defendant to submit to field sobriety exercises. State v. Canuet, 22 Fla Law Weekly Supp. 900a (17th Cir. Ct. 2015).

The second line of cases stands for the proposition that if an officer has reasonable suspicion for a DUI investigation, the defendant cannot be compelled to perform the exercises, and the results would only be admissible if voluntary consent is established. State v. Silva, 22 Fla Law Weekly Supp. 74a (17th Cir. Ct. 2014).

The third and final line of cases holds that if an officer has probable cause to arrest for DUI, the officer may require the performance of the exercises.

Additional Resources

How the Aging Process Impacts Field Sobriety Exercises – Find an article entitled “The Aging Process and Field Sobriety Tests” by Mimi Coffey, Doctor of Jurisprudence, Texas Tech University, USA, published on December 24, 2015.

This article was last updated on Wednesday, July 3, 2024.