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Are the Field Sobriety Tests Truly Voluntary?

Posted by Raymond Ejarque | Sep 13, 2019 | 0 Comments

You are compelled to stop by the flashing red-lights in your rear view mirror and have moments to make decisions that will impact your life in a significant manner. Before the officer approaches with requests you are not sure if you should grant. Please take time to read about the law and position yourself with it on your side.

First note of business, Yes. The field sobriety tests are voluntary, which means you have every right to politely decline the tests and diminish the strength of the State's case if you are inevitably charged with a DUI. These tests are pretty challenging in nature and the nervousness that follows law enforcement can make them even more difficult. This is the reasoning behind our suggestion to decline all types of field sobriety tests while simultaneously remaining cooperative with law enforcement.

However, if you did not read this blog in advance to an unfortunate moment on the roller coaster of life, there are certainly arguments that our dedicated and experienced firm can make to fight a DUI charge and potentially suppress a failed result on the field sobriety tests.

Follow now, into the land of substantive legal issues regarding the voluntariness of field sobriety tests…where this ability to refuse stems from and how it applies to you. Please excuse the legalese and feel free to express questions or concerns that will be answered promptly.

It is undisputed that in Washington, physical tests are voluntary and a driver has no legal obligation to perform them. City of Seattle v. Personeous, 63 Wn.App. 461 (1991); City of Seattle v. Stalsbroten, 138 Wn.2d 227 (1999). The right to refuse physical tests does not arise from statute; however, as does the right to refuse a breath test. Nor does it arise from court rule or the Sixth Amendment. See Heinemann v. Whitman County, 105 Wn.2d 796, 801 (1986). Until recently, it was a popular belief that the right to refuse physical tests stemmed from the Fifth Amendment. In City of Seattle v. Stalsbroten, however, the Supreme Court averred that neither the performance of physical tests nor the refusal to do so gives rise to Fifth Amendment concerns. Stalsbroten, 138 Wn.2d at 234. Clearly, the only source from which the right to refuse physical tests may stem is from the Fourth Amendment.

The Fourth Amendment is incorporated in Art. 1 Section 7 of the Washington State Constitution which provides: “No person shall be disturbed in his private affairs, or his home invaded without the authority of the law.” Because this language differs significantly from the Fourth Amendment to the United States Constitution, it has been interpreted to provide significantly greater protection to the privacy interests of Washington citizens than does the its federal counterpart. State v. Myrick, 102 Wn.2d 506, 688 P.2d 151 (1984).

Our Supreme Court has previously applied Article 1 Section 7 to an officer's observations of signs of alcohol impairment. In Seattle v. Messiani, 110 Wn.2d 454 (1988), the Court found that sobriety checkpoints violate the State Constitution. In doing so, the Court noted that Art. 1 Sect. 7 protects against warrantless searches and seizures with no express limitations, and, unlike any provision in the federal constitution, explicitly protects the privacy of Washington citizens. These privacy rights include the freedom from warrantless searches absent special circumstances. Messiani, 110 Wn. 2d at 456-457.

This State's emphasis on the right of personal privacy mandates that such an orchestrated quest for evidence of physical impairment be appropriately labeled a search, and be accorded the protect of the State Constitution. Our Supreme Court has acknowledged this in Seattle v. Messiani and has left no room for alternative analysis after Seattle v.Stalsbroten. Because physical testing raises Fourth Amendment and Article 1 Section 7 implications, the court must apply a strict standard of consent. The definition of consent in the State of Washington for Fourth Amendment purposes generally follows the “voluntariness test” of Schneckloth v. Bustamonte 412 U.S. 218, 36 L. Ed.2d. 854 (1973). In State v. Counts, 99 Wn. 2d 54 (1983), the Court held that with regard to warrantless searches, the State bears the burden of establishing that “consent was in fact freely and voluntarily given”.

Therefore, if an officer did not explain the voluntary nature of the tests to you on the night of an alleged infraction and you submitted to these tests, a defense argument would be drafted stating your constitutional rights (both federal and state) were violated and a free, voluntary consent to the tests was not given.

Life decisions can be hard, let us help make them easier by giving you ammunition to fight violations to your rights before and after they occur. We know the law and can protect you.

About the Author

Raymond Ejarque

Raymond Ejarque has practiced law since his admission to the Washington State Bar in June of 1994. He started his career in public interest law helping migrant farm workers and indigents in Texas and Washington State.  Later he worked in Criminal defense as a public defender in Seattle for many y...


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