Field Sobriety Testimonial

By Lance M. Hester; April 1999

         Field sobriety tests (FSTs) are some of the most troubling aspects of DUI cases.  Many attorneys feel performance on FSTs has nothing to do with whether one is intoxicated while driving or not.  Clients rarely refuse to take field sobriety tests.  However, once in a while a client walks through the door who refused to walk the line, stand on one foot, touch his nose, and say the ABC’s on the night of his arrest.  Unlike a breathalyzer refusal (in which case the State is allowed by statute to argue a refusal is an inference of guilt), Division I has recently made it clear that refusals to participate in field sobriety tests are inadmissible to show a defendant‘s consciousness of guilt. 

     In City of Seattle v. Stalsbroten, 91 Wn.App. 226 (1998), Division I held that “a suspect’s refusal to perform a voluntary FST (Field Sobriety Test) is protected by constitutional provisions against self incrimination because the refusal is testimonial in nature.  In this case, the officer asked the defendant if he would be willing to perform voluntary field sobriety tests.  The defendant declined. 

     At trial the defendant moved to suppress his refusal to take the field sobriety tests.  The trial court denied his motion “on the basis that there was no constitutional bar to admitting his refusal, that FSTs are not testimonial in nature, and that his refusal was relevant to show consciousness of guilt.”  The defendant was convicted.

     It was important to the court that FSTs are voluntary in Washington.  See City of Seattle v. Personeus, 63 Wn.App. 461 (1991).  The court held that “a suspect’s refusal to perform FSTs is implicitly communicative of his or her perception of intoxication.  To hold that the refusal to perform a voluntary test is admissible at trial as evidence of a person’s guilty state of mind would strip away all meaning from the voluntary nature of the test because any choice made by the suspect would assist the police in their investigation.”

     Therefore, the appellate court found that the trial court erred in failing to suppress Mr. Stalsbroten’s refusal to take the FST and permitting the city to argue at closing that Stalsbroten’s refusal indicated a guilty state of mind..

                While Division I has indicated a refusal to engage in FSTs is testimonial, it is clear that our courts believe consenting to FSTs is not testimonial.  It seems odd that the nature of a suspect’s response is what will or will not cause the subsequent results of his FSTs to be considered testimonial.  Stalsbroten is at least an avenue, then, toward arguing for more FST results to be suppressed.

     In the Stalsbroten case it should be noted that while the trial court committed a constitutional error, the appellate court nonetheless ruled it was harmless.

End