Should a sober person take a field sobriety test?

In My Humble Opinion
41

Except he was given that test after he participated in (and, according to what the cop will later write in his report, “failed”) the FSTs. That’s enough “probable cause” for the arrest.

And if you listen to the cop, he said “do me a favor” when he requested the portable test. It was voluntary. (And simply blowing into it, without saying yes first, is tacit agreement by the suspect. He didn’t have to formally say “yes”).

If it was required, the cop would have read a legal advisement (probably from a card) that said that the driver had to submit to a lawful test or face suspension of his driving privileges.

42

The takeaway here is that if you’re drunk, it may be more difficult to remember/understand exactly what your rights are in this situation.

43

" Your Honor, I was way too fucked up to understand my rights at the time."

44

My favorite is when the cop asks the suspect to walk 9 steps down a straight line and they respond - on recorded video - with “I can’t even do that when I’m sober!”

45

I actually had a drunk driving case dismissed (I was the arresting officer) because the judge bought the attorney’s argument that his client was too drunk to understand his Miranda rights. I wanted the District Attorney to appeal the decision, because it was ridiculous, but the defendant had already lost his license for 10 years in an administrative hearing (as mentioned above) for refusing the breathalyzer and they didn’t want to bother.

46

The cop said “Do me a favor, I want you to …”. ISTM that this is pretty SOP for cops to say about all sorts of things that they do not intend to be voluntary. “Do me a favor, I want you to put your hands behind your back …”. (Also the similar “Can you do such-and-such for me?”) I think any normal person would interpret the “do me a favor” part as empty politeness, and that refusing would be defying an order.

(For one example of many, here’s a cop saying “Do me a favor, hop out of the car …” Does that mean the guy is free to defy him? It sure doesn’t seem like it from the cop’s subsequent conduct. Live PD: Uber Angry (Season 2) | A&E - YouTube)

47

I’m stone sober, have read through this thread with interest, and I still can’t really parse what my rights are / would be in such a situation. I’ve never been pulled over and asked to do any kind of sobriety test but I guess there’s a first time for everything.

48

My dad was on a DUI jury. Cop arrested the defendant because he knocked his motorcycle over getting off it and that was probable cause for a drunk driving arrest. Jury acquitted because the defendant had a knee injury with limited movement and it was very cold that night. Guy had a low BAC so it was under the influence not drunk driving or whatever the weasel wording is that let’s you get arrested for ANY alcohol in your system.

I think with my knee problem I would fail any test involving balance drunk or sober.

49

I agree with your interpretation, and have certainly made such an argument (the term being “acquiescing to authority”). The problem is that the law weighs against that.

The court would likely say “the cop asked him to do something and he complied. That was a voluntary interaction.” It would be emphasized that the cop was speaking in a normal tone of voice, did not have his weapon drawn, and was not hostile.

The fact that the cop could decide at any moment that he is in fear for his life and therefore shoot his detainee will be completely ignored. And the fact that the detainee was not free to leave won’t be considered significant in deciding whether he chose to do the test.

Only if the cop is yelling, or bullying, or threatening might it get to an example of police coercion.

Otherwise, if a cop asks you to do something, you’re better off saying “I’d rather not, but I will comply if you are ordering me to do so.”

(Incidentally, and at least in the jurisdictions that I practice in, if you do refuse the voluntary roadside investigation, the police are supposed to say that the refusal can be used against you in court, and the officer will make an arrest decision based on the evidence they have at that point.

But, just so you know, if the cop asks for roadside testing of any kind, they’ve already decided to arrest you.)

Remember that a lot of this DUI investigation is post hoc rationalizing of a decision made when you were first contacted. You were weaving and have alcohol on your breath: a cop is almost certainly making a DUI arrest. But that is probably not enough evidence by itself, so all of the walking, talking, and testing is to get you to provide further evidence, or so you eventually incriminate yourself with a confession.

50

People v Carlson (Colorado)

To satisfy constitutional guarantees against unlawful searches and seizures, therefore, a roadside sobriety test can be administered only when there is *318 probable cause to arrest the driver for driving under the influence of, or while his ability is impaired by, intoxicating liquor or other chemical substance, or when the driver voluntarily consents to perform the test. The People do not contend, nor did the courts below find, that there was probable cause to arrest the defendant prior to the administration of the roadside testing. The only basis relied upon by the officer in administering the roadside tests was the defendant’s alleged consent.

Of course you have all of your other rights like to invoke your right to remain silent. Before you click … yes it is THAT video. Of course Moriarty may correct me (listen to him not me) but all you have to do is give your license, registration and insurance than STFU unless asking “Am I being detained?” or “Am I free to go?” The only difference is if arrested you do have to take the test OR lose your license (refusal might be better than a slam dunk DUI where you lose your license anyways AND as pointed out you can have an administrative hearing that you will lose to get your license back if you do not consent to the test.

ETA: and the refusal at the station can be held against you in court.

51

Some more caveats:

Your right to remain silent, or invoke Miranda, applies to questioning while in custody - a custodial interrogation.

The courts generally hold that you are not necessarily in custody just because you are detained. Detained means not free to leave, in custody means secured formally akin to arrest, as when placed in handcuffs or put into a secure room.

So, while you are detained when pulled over on the side of the road, you are not in custody, and are therefore usually not entitled to a Miranda warning before being questioned.

Meaning, the cop may start asking you questions before advising you of Miranda, and your answers will be deemed voluntary and not the product of an interrogation. (“Where you coming from tonight?” “The bar that Kayaker likes”. “Drink any?” “Only 2. It’s always only 2.”)

Also, Miranda is not held to apply to physical movements. So even if you did invoke Miranda, your performance on the FSTs may still be admissible, and there is no obligation for the cops to Mirandize you before asking you to do them.

This is why you have to (politely) decline when the cop tries to cajole you into doing tests:

“I just want to check your eyes to make sure that you’re ok to drive?”

“No thank you.”

“You won’t do tests to dispel my suspicion that you may be too impaired to drive?”

“Nope.”

“You said that you were fine. So it shouldn’t be a big deal. Once you pass them, you can head home.”

“I don’t wanna.”

“Well then I’m forced to make an arrest decision based on the signs of impairment I’ve seen so far. I detect an odor of alcohol, you were speeding, and your eyes seek glossy.”

“It’s 2 am. I’m tired. I just want to go home and I won’t do any more tests.”

“Then put your hands behind your back. You’re under arrest for DUI. Do you have anything in your pockets that may stick or poke me?”

52

Was this you? :wink:

(guy in the video below is smashed, admits to it, but miraculously passes two breathalyzers)

53

Are you sure handcuffs means arrested and not detained? ISTM that it’s SOP for cops to handcuff people who are being “detained” (and they tend to emphasize that point while putting the handcuffs on them. For one example of many, see e.g. Live PD: Detainment Interrupted (Season 2) | A&E - YouTube.

54

Handcuffs don’t always mean arrested, but it does mean in custody. You may be placed in custody because you were just arrested, but you may also be placed in custody for officer safety, or because you are being belligerent, while an investigation is underway.

Of course, if you are in custody, you are also detained. But just because you are detained doesn’t mean that you are in custody.

55

Well, it would have ot be breathalyzer or blood, I suppose my asking them to get my wheelchair out of the back would screw with the usual walk a line deal =)

56

There are alternative tests for people who can’t stand. For example, you might be asked to recite a portion of the alphabet (“recite D through K”) or asked - while in a seated position- to touch finger to nose.

57

One guy told me he was stopped while driving drunk (I don’t know if off his ass), but happily passed the bullshit test and got to go home, whereas he was sure he would have not passed a breath or blood test.