Roadside Agility or Field Sobriety Exercises
In almost every DUI case in Tampa, Hillsborough County, Florida, the officer will request that the driver participates in roadside agility tests which are often called field sobriety exercises (or FSEs). The tests are entirely voluntary. In other words, you do not have to take the field sobriety exercises.
If you refuse to participate in the field exercises, then the arresting officer might warn you that the refusal can be used against you in court. Most jurors, however, understand that there are very good reasons for not going these exercises that have nothing to do with thinking you might be impaired.
Since the exercises are designed to assist the officer’s testimony at a DUI trial, there is almost never an advantage to taking the tests. The field sobriety exercises are highly unreliable. Although the exercises are referred to as “standardized,” the tests are subject to such variables as the driver’s weight, athletic ability, medical disabilities, and age.
Testing conditions such as the emotional state of the driver, fatigue, proximity to passing traffic on the roadway, and unfamiliarity with the sobriety exercises all make the test unreliable.
Reasonable Suspicion for Field Sobriety Exercises
Under Florida law, before the police officer can request that a driver submits to field sobriety tests, the officer must have reasonable suspicion that the individual is driving under the influence. U.S.C.A. Const. Amend. 4. State v. Ameqrane, 39 So. 3d 339 (Fla. Dist. Ct. App. 2d Dist. 2010).
Other cases seem to indicate that probable cause is required before the officer can demand that the driver submits to agility exercises at the roadside. In certain cases, the criminal defense attorney can move to exclude any testimony about the subject’s refusal to submit to the exercises if the officer does not warn the suspect that such a refusal can be used against him in court.
Florida law is clear that in order to request a driver to submit to field sobriety tests, a police officer must have reasonable suspicion that the individual is driving under the influence. State v. Ameqrane, 39 So. 3d 339, 341 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D1148b]; State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995) [20 Fla. L. Weekly S6b].
In other words, the standard required to request that a driver perform field sobriety exercises is reasonable suspicion, not probable cause, and it is error to apply the wrong standard. In Department of Highway Safety and Motor Vehicles v. Haskins, 752 So. 2d 625, 627 (Fla. 2d DCA 1999, the appellate court found that the “circuit court in this case erred in stating that the officer who stopped the defendant needed probable cause to ask the defendant to submit to the field sobriety exercises.”
Signs of DUI Impairment or Intoxication During the Initial Observations
The DUI officer will attempt to make this showing by claiming that the individual had one or more of the following indications of intoxication or impairment:
- an odor of an alcoholic beverage on his breath (although the odor of an alcoholic beverage alone is probably not sufficient);
- an admission that the driver consumed alcohol;
- slurred speech;
- bloodshot, watery or glassy eyes; or
- uncoordinated movements and an uneven gait;
- difficulty locating documents such as a driver’s license, registration or proof of insurance.
In many cases, the arresting officer will recite exactly the same observations in every single case in which he makes an arrest for DUI. In fact, the officer will often recite the initial observations using exactly the same language in exactly the same order each time.
Types of Field Sobriety Exercises Used in Florida
The most commonly used roadside agility tests in Florida include the following:
- Eye test or HGN (Horizontal gaze nystagmus test);
- Finger to nose exercise;
- Walk and turn exercise; and
- One-legged stand exercise.
Reasons People “Fail” the Roadside Agility Exercises
For many people, certain factors can cause them to “fail” the test or show signs of impairment that have nothing to do with the consumption of alcohol or any controlled substance. Those issues can include:
- Medical problems that affect balance or coordination;
- Individuals over a certain age are at a clear disadvantage in taking the field sobriety exercises in Florida;
- Women charged with DUI who are wearing high heeled shoes or any individual who is wearing flip-flops can be at a huge disadvantage
- Individuals who have hearing problems and cannot hear the instructions for the field sobriety exercises are at a distinct disadvantage;
- Individuals for whom English is not their primary language are at a disadvantage in understanding the instructions for the field sobriety exercises.
In many of these cases, your attorney can show that the officer did not administer or grade your performance on the Field Sobriety Exercises correctly.
Can the Officer Compel a Defendant to Perform FSEs?
Florida has numerous circuit and county court opinions concerning whether an officer can compel a Defendant to perform Field Sobriety Exercises (FSEs).
Court have held if an officer has reasonable suspicion for a DUI, the Defendant can be required to submit to FSEs. See, e.g. State v. Canuet, 22 Fla. L. Weekly Supp. 900a (Fla. 17th Cir. Ct. March 2, 2015). But most courts have found that if the officer has reasonable suspicion of DUI, but not probable cause for arrest, the Defendant cannot be compelled to submit to FSEs.
For this reason, the results of the Defendant’s performance are only admissible at trial if the state proves the Defendant’s voluntary consent to perform such exercises.
Thus, if the officer has probable cause to arrest the Defendant for DUI (before the Defendant is requested or instructed to submit to FSEs), then the Defendant can be compelled to perform such exercises and the Defendant’s consent is immaterial. In these cases, the word “compel” simply means if the Defendant refuses to do so, the refusal is admissible at trial.
In State v. Leifert, 247 So.2d 18 (Fla. 2d DCA 1971), the court was clear in its holding that consent is immaterial in the context of FSEs if the officer had “sufficient cause” to believe that the Defendant had committed a crime in the operation of a motor vehicle.
In this context, the term “sufficient cause” equates with “probable cause for arrest.” So if the officer did not have probable cause to arrest the Defendant for DUI at the time he requested the Defendant to submit to FSEs, then any failure to comply with that demand is not admissible at trial. And if the Defendant did participate in the field sobriety exercises, in order for the results of the Defendant’s performance on the FSEs to be admissible at trial, the State has the burden of demonstrating that the Defendant freely and voluntarily submitted to FSEs.
In many of these cases, the defense attorney will file a motion to suppress any evidence of the result of the FSEs when the Defendant’s submission to field sobriety exercises was not the product of free and voluntary choice, but rather, compliance with law enforcement directives. In those cases, the defense attorney will ask the court to exclude from trial any mention of the field sobriety exercises.
Finding a Lawyer for Field Sobriety Exercises in Hillsborough County, FL
If you have been arrested for DUI and need more information on how the Field Sobriety Exercises might affect your DUI prosecution, contact a DUI Attorney in Tampa, FL at the Sammis Law Firm to discuss your case today.
We can help you file and litigate motions to suppress any mention of the roadside agility exercises. If this evidence is deemed admissible by the court, then we can help you show the jury that your performance did not indicate that you were impaired by alcohol or any chemical or controlled substance.
Call 813-250-0500 to schedule a phone or office consultation to discuss the facts of your particular case.
This article was last updated on Monday, November 4, 2019.