Part 3 of 3 Regarding the Anatomy of a DUI Arrest
Field Sobriety Tests (FSTs)
This final phase before arrest, the officer typically will order the suspect out of his vehicle and offer him or her the opportunity to take “voluntary” field sobriety tests (FSTs). Now the law regarding the taking of field sobriety tests was muddled relatively recently by a June 2016 Washington State Supreme Court case that was later amended by the Washington Supreme Court in September 2016. Specifically, in State v. Mecham, 186 Wn.2d 128, 380 P.3d 414, 2016 Wash. LEXIS 695 (Wash. June 16, 2016) (the date of the original opinion) (the opinion was ordered amended in parts at State v. Mecham, 2016 Wash. LEXIS 1011 (Wash. Sept. 6, 2016))
The Washington Supreme Court discussed the legality of FSTs under the federal and state constitutions. The court issued a very divided opinion that seems to potentially limit to a degree law enforcement’s ability to implement FSTs in the future. The court held that law enforcement could compel suspects to perform FSTs while developing probable cause to arrest, but that they could not compel suspects to perform FSTs after the suspect had been arrested. The Supreme Court ordered Mr. Mecham’s conviction for DUI reversed and that he receive a new trial because under the facts of his case he had been placed under arrest on an unrelated outstanding warrant when law enforcement “asked” him to perform FSTs, which he chose not to perform.
Legality of FSTs
Some of the dissenters in the opinion questioned the legality of FSTs that are not supported by probable cause in certain circumstances, and also the fairness of calling the FSTs voluntary when suspects have no right to refuse to perform FSTs, as their refusal is used against them as evidence of guilt; thus, equating to not having a true choice. Further, some of the dissenters argued that FSTs are searches because they are tests that reveal the inner status and workings of a suspect’s body and fundamental fairness requires law enforcement to tell them that you can make a choice not to take the test but it will be used against you, i.e. it really isn’t a choice, as you can be dinged by the results of the test or by the fact that you chose not to take the test. It is highly likely that this issue will be litigated in the lower courts as the Mecham opinion is very fragmented and not clear. My opinion is that in most instances the court will rule ultimately rule that as long as there is a reasonable articulable basis to believe that a driver is potentially DUI that it will be alright to ask him or her to take “volutary” FSTs and ultimately that the court will allow the results in if the suspect knowingly, voluntarily and intelligently consented or the court will allow the refusal to the due the FSTs in if the suspected DUI driver refuses. Now where I think the Washington Supreme Court may ultimately go is require the officers to inform the suspect that the refusal to take the FSTs will potentially be used against them in trial.
Standard 3 FSTs
Now assuming the suspected impaired driver agrees to take the FSTs, the standard three FSTs given are the Horizontal Gaze Nystagmus test, the Walk and Turn test, and the One Leg Stand test (I will be writing a separate article soon devoted to those tests and issues surrounding them). In my experience as a DUI Attorney, almost 100% of the time the officer will also offer the suspect a chance to take a Preliminary Breath Test (PBT), which is used to establish probable cause to arrest and the individual must make a knowing, voluntary and intelligent waiver of his rights to establish consent to take this test. It is at this point that the officer will make his or her arrest decision, looking at the information from typically all three phases of a typical DUI encounter.
Ultimately the decision to arrest someone is a far less legally stringent standard than to convict them. All an officer needs to arrest someone is probable cause to believe the crime of DUI has been committed. However, to convict someone of the crime of DUI takes proof beyond a reasonable doubt determined by a jury or judge in a criminal trial. Therefore, even if you are arrested for DUI it does not mean they necessarily have proof beyond a reasonable doubt to convict you of this crime. This article was written to give a basic guide on how law enforcement are taught to approach and investigate a DUI scenario.
Nicholas "Nick" Wood - Law Office of Nicholas Wood, P.S.
Nick Wood received his J.D. in 1999 from Lewis and Clark's Northwestern School of Law in Portland, Oregon. The Law Office of Nicholas Wood, P.S. has represented clients for various criminal defense matters since 2006.