Should a person agree to perform the Standardized Field Sobriety Tests (SFSTs)? That question has become even harder to answer after the recent decision of State v. Mecham. In the case, the officer asked Mecham if he would voluntarily agree to perform the SFSTs. Mecham, who was told the tests were voluntary, declined to perform the tests. A blood test was later taken that came back well below .08. At trial, the prosecutor argued that Mecham was guilty of DUI because he had refused to perform SFSTs tests, and only someone who knew they were guilty would refuse to perform the tests. The defense strongly disagreed and argued Mecham’s refusal to submit to a voluntary test should not be used against him, particularly when he was never told that if refused the tests, that his refusal would be used against him at trial.
On appeal, the Washington Supreme Court ruled that SFSTs are not a search and therefore, a person does not have a constitutional right to refuse the test. Because a person does not have a constitutional right to refuse, that a prosecutor can use a person’s refusal to perform the tests against the person at trial as consciousness of guilt. The court added that the SFSTs are a seizure, not a search, and that law enforcement can ask a person to perform the SFSTs after a person is already arrested for DUI (SFSTs are normally used to help an officer decide whether to arrest a person for DUI).
The decision leads to a lot of questions. If the SFSTs are a seizure, and a refusal to submit to the tests can be used against a person, can an officer force someone to submit to the SFSTs against their will, just like an officer can force someone to stand in a suspect lineup against their will? If a person refuses to perform the SFSTs can they be charged with the crime of Obstructing a Law Enforcement Officer similarly to when person refuses to put their hands behind their back when instructed? While the court stated a person does not have a constitutional right to refuse, the court added a person has a common law right to refuse. So presumably, the decision to submit to the SFSTs must still be voluntary and a refusal to submit should not expose a person to an additional criminal charge of obstructing.
Police officers routinely testify that they do not arrest everyone who agrees to perform the SFSTs and occasionally, a person’s performance on the SFSTs convinces the officer to let the person drive home without a DUI arrest. However, it is hard to find statistical evidence to support this. And it is not unheard of for people to perform “poorly” on the SFSTs who end up blowing well under .08 (.02 is the lowest breath test I have seen for a DUI arrest). Prior to having a suspect perform the SFSTs, the police offer instructions and briefly demonstrate the tests. However, this normally occurs on the side of a busy, loud, freeway. Moreover, the instruction does not inform the person what “clues” the officer is looking for. For instance, on the Walk and Turn and One Leg Stand test, the officer instructs the person “to keep their arms to their side.” If a person moves their arms more than six inches from their hip, this is considered a clue (despite the fact that the person may assume having their hands a little more than six inches from their hip is keeping their arms to their side, just as instructed). This is one reason most attorneys advise people to decline to take the the SFSTs regardless of how much or little alcohol they have had to drink. But after the Mechum decision, it appears you are damned if you do, and damned if you don’t.