Disturbing Division One Decision: No Constitutional Right to Refuse Field Tests

Posted by Andrea Robertson on Apr 21, 2014 | 0 Comments

Division One published a rather disturbing decision this afternoon, which impacts drivers who choose to refrain from roadside sobriety tests when requested by law enforcement.

In March 2011, Defendant Mark Mecham was stopped and was under investigation for suspicion of Driving Under the Influence.  At that time, he was asked to complete field sobriety tests at the direction of an officer in Bellevue.  He declined the request.

Standardized field sobriety testing normally consists of a trifecta:

1) Gaze nystagmus testing - a search for an involuntary jerking of the eyeballs, which is argued to be caused by alcohol consumption (though it can also be caused by many other factors).

2) A "walk and turn" divided attention test which requires a suspect to balance and walk "heel to toe" along a painted or imaginary line, and execute a turn and a return walk along the designated line.

3) A "one leg stand" which requires a suspect to balance on one leg, while lifting the other foot 6 inches above the ground, without using arms held out for balance.

At his trial, Mecham's refusal to submit to field tests was admitted as evidence against him, over his attorney's objections.  Additionally, the State commented repeatedly in its closing argument that this refusal showed Mecham was conscious of his guilt.  The trial court permitted this argument, again over the objection of defense counsel.

Division One upheld the trial court.  First, it found "for purposes of this opinion" that a field sobriety test constitutes a test under both Article 1, Section 7 of the Washington Constitution, and under the Fourth Amendment of the federal constitution.  This is an important ruling, as defense attorneys have long argued that Washington needs to join the 26+ states which have already concluded that field testing is a warrantless search of a driver.

Searches in Washington without a warrant are typically impermissible, unless they fall within a careful "jealously guarded" exception to the warrant requirement under Washington law.   Washington has long emphasized greater protections against warrantless searches than the protections offered on the federal level.  However, Washington (unlike other states) has never articulated a "reasonableness" exception to the warrant requirement.

Today, Division One appears to shoehorn FST testing into a "reasonableness" exception, by finding that the tests involve some physical intrusion, but that intrusion is "not excessive."  Further, the Court of Appeals found that field sobriety testing fits into a "Terry v. Ohio" exception to the warrant requirement, and that it is a "brief and reasonable method" for determining whether an individual is intoxicated.

An important decision from 2013 out of the Court of Appeals found a suspect's refusal to submit to a warrantless request for a DNA sample cannot be used against them at trial, nor used as consciousness of guilt. State v. Gauthier, 174 Wn.App. 257 (2013).  But in a twisted bit of logic, the Court today found that the State could argue that an FST refusal shows "consciousness of guilt" because there is no constitutional right to refuse a field test.  There is a "common law" right to refuse a field sobriety test, but that refusal can be concluded to indicate a "consciousness of guilt."

The Court also made rulings related to a "to convict" instruction and the admissibility of a certificate of mailing without an appropriate live witness.

This decision can be read it its entirety here.

If you are facing a DUI investigation, this just made the decision related to field tests even more complex.  We recommend consulting with an attorney before submitting to any testing, regardless of the circumstances.

About the Author

Andrea Robertson

Andy is a passionate, creative and effective criminal defense lawyer who is willing to fight on your behalf. She has honed her skills since 1998, and has developed a proven track record of creative, vigorous, and effective advocacy for clients throughout the State of Washington. Her practice includes all criminal charges. This includes felonies, misdemeanors, and driving-related charges such as DUI or vehicular assault/homicide.

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Andy Robertson has a proven track record of creative and effective advocacy for clients facing criminal charges throughout the state of Washington. Ryan Robertson's practice focuses exclusively on high-quality creative appellate representation in criminal and administrative matters, as well as expungements, vacation of records, and petitions to seal.