Jon Katz, P.C.

Non-consensual field sobriety tests should be inadmissible at trial

Field sobriety tests are not mandatory tests in drinking and driving cases where I practice law. Therefore, when the police officer commands a drinking and driving suspect to take the field sobriety tests — or makes the taking of the tests anything but fully voluntary — the results should be excluded.

Virginia caselaw confirming that field sobriety tests are voluntary tests is Hammond v. Virginia, 17 Va.App. 565, 439 S.E.2d 877 (1994), which says:

A field sobriety test is not mandatory and is administered by an officer only with the consent of the accused. The test provides an immediate indication of whether probable cause exists to believe that the accused is under the influence. If a defendant refuses to take the test, that refusal may be evidence of guilt. Farmer [v. Com.], 12 Va. App. at 341, 404 S.E.2d at 373. Similarly, we assume arguendo that if a defendant readily volunteers to take a test, the willingness may be relevant to prove innocence. Farmer held only that evidence of the accused’s refusal to take the test or his actions in voluntarily **879 performing the non -required field sobriety test may be relevant to prove the accused’s guilt or innocence.

Hammond,  17 Va.App. 565, 568 (1994).

Maryland caselaw confirms that field sobriety testing amounts to a search requiring reasonable articulable suspicion to proceed with such tests in drunk driving cases. Blasi v. State, 167 Md. App. 483, 893 A.2d 1152, cert. denied, 393 Md. 245, 900 A.2d 751 (2006). Blasi says:

[T]he administration of field sobriety tests by a police officer during a valid traffic stop intrude into an area of an individual’s reasonable expectation of privacy because: (1) the process of conducting field sobriety tests exposes certain aspects of an individual not otherwise observable by the public; and (2) the information disclosed by the field sobriety tests may reveal private facts about an individual’s physical or psychological condition. Therefore, we hold that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment to the U.S. Constitution.”

Blasi, 167 Md. App. at 505.

Although Virginia law does not recognize field sobriety tests to be searches, Blasi does. Blasi, 167 Md. App. 483. Consequently, the prosecution in Maryland cases has the burden of showing that the Defendant submitted to the field sobriety test/search voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973).