Roadside Agility Exercises

In almost every DUI case in Florida, the officer will request that the driver participate in roadside agility exercises, often called field sobriety exercises (or “FSEs”). The tests are entirely voluntary. In other words, you do not have to participate in the exercises.

If you refuse to participate in the field exercises, 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 doing 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, taking the tests is rarely advantageous. The field sobriety exercises are highly unreliable. Although the exercises are “standardized,” they ignore variables such as the driver’s weight, athletic ability, medical disabilities, and age.

Testing conditions such as the driver’s emotional state, fatigue, proximity to passing traffic on the roadway, and unfamiliarity with the sobriety exercises all make the test inaccurate and unreliable.

Lawyers for Roadside Agility Exercises in Hillsborough County, FL

If you have been arrested for DUI and need more information on how the Field Sobriety Exercises (FSEs) might affect your DUI prosecution, contact an experienced DUI defense lawyer in Tampa, FL, at the Sammis Law Firm to discuss your case today.

We represent clients charged with DUI throughout central Florida, including Hernando County, Pasco County, Pinellas County, Manatee County, Sarasota County, Hillsborough County, Polk County, Orange County, and Osceola County.

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.

Reasonable Suspicion for Field Sobriety Exercises

Under Florida law, before the police officer can request that a driver submit 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 indicate that probable cause is required before the officer can demand that the driver submit 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 before the officer is permitted to request the driver participate in field sobriety exercises, the officer must have reasonable suspicion that the individual is driving under the influence of alcohol or drugs. State v. Ameqrane, 39 So. 3d 339, 341 (Fla. 2d DCA 2010); State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995).

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 the same observations in every single case. In fact, the officer will often recite the initial observations using exactly the same language in exactly the same order each time. For example, the officer might write in every report that he observed: “The driver had glassy, bloodshot, watery eyes, slurred speech, an odor of alcoholic beverage, and was unsteady on his feet.”

Types of Field Sobriety Exercises Used in Florida

The most commonly used roadside agility tests in Florida include the following:

1. Eye test or HGN (Horizontal gaze nystagmus test);
2. Finger to nose exercise;
3. Walk and turn exercise; and
4. 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:

1. Medical problems that affect balance or coordination;
2. Individuals over a certain age are at a clear disadvantage in taking the field sobriety exercises in Florida;
3. Women charged with DUI who are wearing high-heeled shoes or any individual who is wearing flip-flops can be at a huge disadvantage
4. Individuals who have hearing problems and cannot hear the instructions for the field sobriety exercises are at a distinct disadvantage;
5. Individuals for whom English is not their primary language are disadvantaged in understanding the instructions for the field sobriety exercises.

In many 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).

Courts have held if an officer has reasonable suspicion of 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, some courts have equated “sufficient cause” 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.

This article was last updated on Thursday, January 16, 2025.