Field Sobriety Exercises
Florida law is clear that in order to request a driver to submit to field sobriety tests, a police officer must have reasonable suspicion that the individual is driving under the influence. State v. Ameqrane, 39 So. 3d 339, 341 (Fla. 2d DCA 2010); State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995).
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 thereafter 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 follow roadside exercises:
- The Horizontal Gaze Nystagmus (HGN);
- The Walk and Turn Exercise;
- The One Leg Stand Exercise; and
- 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 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 evaluate 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 in Tampa, FL, at the Sammis Law Firm. 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.
Compel or Request Field Sobriety Exercises
Can the performance of field sobriety exercises can 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, then 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 the driver 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.” But 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, suppression may then be warranted. State v. Milian, 18 Fla. L. Weekly Supp. 414 (Fla. Broward Cty. Ct. 12/9/10).
The “Refusal” to Submit to FSEs
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. 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, the use of the FSEs at trial or the presentation of evidence about the alleged refusal to submit to the FSEs does not necessarily violate due process principles as it does not constitute a crucial confrontation requiring the presence of counsel. State v. Burns, 661 So.2d 1052 (Fla. 4th DCA 2010).
In fact, the law does not require that a driver be advised of his right to refuse to take part 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 then the officer will have to make a decision about 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.”
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. But 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 one. 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 to not 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); Bravo v. State, 65 So.3d 621 (Fla. 1st DCA 2011); Fratcher v. State, 37 So.3d 365 (Fla. 4th DCA 2010); Kearney v. State, 846 So.2d 618 (Fla. 4th DCA 2003); Rose v. State, 37 Fla. L. Weekly D1199 (Fla. 1st DCA 2012).
The performance of field sobriety exercises is subject to Fourth Amendment principles. State v. Whelan, 728 So.2d 807 (Fla. 3d DCA 1999); State v. Singh, 2006 CT 015361 NC (Sarasota Cty. Ct. January 23, 2007).
When the refusal to perform field sobriety exercises is nothing more than an exercise of his Constitutional right to not 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, 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 types of 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, then 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, at the time 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 whether the arresting officer used words that compelled the defendant to submit to field sobriety exercises.
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 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 is 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); State v. Harper, 15 Fla Law Weekly Supp. 232b (17th Cir. Ct. 2008); State v. Lynn, 11 Fla Law Weekly Supp. 798b (17th Cir. Ct. 2004).
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.
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 Friday, June 21, 2019.