Refusing FSTs now

 NON-Testimonial

By Lance M. Hester; Sept 1999

     The State Supreme Court recently held, “… that admitting evidence of a drunk driving suspect’s refusal to perform FSTs (field sobriety tests) does not violate the suspect’s privilege against self-incrimination.”  The ruling reversed the earlier decision of the Court of Appeals.  An article discussing the position of the Court of Appeals appeared in the April 1999 issue of Just News (Field Sobriety Testimonials).

     The issue of refusal to take the breath test is goverened by statute.  In fact, RCW 46.61.517, explicitly states that evidence of a refusal to provide a breath sample is admissible as evidence in a criminal trial.  The court has also made it clear that actual results of performed FSTs are admissible (assuming the officer who administers the tests is qualified to do so).  The issue the court has recently been dealing with is whether one’s response to the invitation to take the breath test is admissible evidence.  As stated in the April issue of this publication, the law’s status was that refusing to engage in FSTs was “testimonial” (therefore inadmissible), and consenting to FSTs was “non-testimonial” (therefore admissible).

     Recently the State Supreme Court reversed the Division I ruling in City of Seattle v. Stalsbroten, 978 P.2d 1059 (1999).

     In the most recent Stalsbroten decision the court noted it’s specific task was to determine whether admitting evidence of one’s FST refusal violated a defendant’s Fifth Amendment right against self-incrimination.  In short, the court has now declared refusing FSTs is not testimonial.  It has stated, “[the] act of refusal ‘merely exposes [the defendant] to the drawing of inferences, just as does any other act.’” (citing State v. Wright, 116 N.M. 832, 867 P.2d 1214 (1994).  The act of refusing to perform FSTs is now therefore admissible.

     It is highly suggested that the reader take the time to read the most recent Stalsbroten decision.

     The decision does not completely eliminate the trial attorney’s opportunity to keep what a prosecutor may characterize as a “refusal” out of the trial.  If an arresting officer actually asks a subject of his willingness to perform roadside FSTs, a defendant may actually say something to the effect of, “I’d rather just take a breath test.”  Comments such as this one that do not look like overt refusals should be moved upon in limine as a request to the court to preclude the State from referring to them as “refusals.”