Field Sobriety Tests - The Case Law Explained
Article by Lenny Stamm
Often in drunk driving investigations, the officer stops a person for a minor traffic violation and then upon detecting the odor of an alcohol beverage requires the person to exit the car. Officers that are NHTSA trained are trained to conduct a mini-investigation prior to order a drunk driving suspect out of their car, in order to determine whether they are going to do so. Principles and Techniques of Training in Standardized Field Sobriety Testing, Student-Instructor Manual, U.S. Dept. of Transportation (2002), Session VI, Phase Two, Personal Contact Phase. The officer is specifically trained to ask divided attention questions to see how the person reacts, asks to see license and registration and how well the person provides them, and may offer some tests such as the alphabet or count backwards, while the person is still seated in their car.
The Supreme Court has made it clear that the detention of a person "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). When a police officer stops a person for a minor traffic violation and then continues to detain the person to investigate a more serious crime, such as drunk driving, some cases hold there is a second stop which must be supported by independent articulable reasonable suspicion. E.g., Ferris v. State, 735 A.2d 491 (Md. 1999); Charity v. State, 753 A.2d 556 (Md.App. 2002), cert. denied, 759 A.2d 231 (Md. 2000); Pryor v. State, 716 A.2d 338 (Md.App. 1998); State v. Ballard, 617 N.W.2d 837 (S.D. 2000); Green v. State,802 A.2d 1130 (Md.App. 2002), cert. granted, 810 A.2d 961 (Md. 2002); Munafo v. State, 660 A.2d 1068 (Md.App. 2000); Snow v. State, 578 A.2d 816 (Md. App. 1990). In Ferris, as well as the other cases cited, the courts have agreed that a detention longer than is necessary to process the issuance of the citation for which the stop was initially made must be justified separately. In Ferris, the court expressly held that requesting the person to exit the car is a second seizure of the person, and distinguished the case of Pennsylvania v. Mimms, 434 U.S. 106 (1977), which held that a person can be required to exit a vehicle without any additional justification, in furtherance of officer safety. None of these cited cases are drunk driving cases.
One case that accepted that the removal of the person from the car for the purpose of performing standardized field sobriety tests was a second stop needing separate justification in the drunk driving context was People v. Rizzo, 622 N.W.2d 319 (Mich.App. 2000). The court rejected the prosecution argument that the police were authorized to have the person exit the car under Pennsylvania v. Mimms, 434 U.S. 106 (1977), since the officer never articulated a public safety reason, as is arguably required by Mimms, for the exit from the car. Nonetheless, the court held that the strong odor of intoxicants, standing alone, was sufficient objectively reasonable suspicion of driving impaired to justify requiring a person who had been pulled over for a broken tail light to exit her vehicle to perform field sobriety tests.
Rizzo appears to be distinguishable in the case where the officer on cross-examination admits that a strong odor of an alcohol beverage may be caused by recent imbibing and is not necessarily indicative of impairment and where the officer admits that proper investigative procedures designed to determine whether to order the person out of the car were neglected. In State v. Spillers, 2000 WL 299550 (Ohio App. 2000)(unreported), the court concluded that there was insufficient articulable reasonable suspicion to order the defendant out of his car to perform standardized field sobriety tests where the stop was for de minimus lane violations and the defendant admitted a few beers and had a slight odor of an alcohol beverage.
In City of Hutchinson v. Davenport, 54 P.3d 532 (Ka. 2002), the court held that the odor of alcohol beverage and bloodshot eyes combined with having lied to police did not constitute sufficient articulable reasonable suspicion to support a stop. The defendant was in the police station to pick up his daughter and an officer detected an odor of an alcohol beverage on his breath and observed bloodshot eyes. He did not have slurred speech or any other indicia of impairment. After an officer advised him not to drive, he indicated he would be walking home, to Wichita, quite some distance away. After waiting about five minutes by his vehicle, the defendant got in it and began to drive home. An officer followed him but did not see any erratic driving. The court said, "Alcohol on one's breath alone does not provide a reasonable suspicion to support a stop, nor does the statement by Davenport that he was walking." Id. at 535.
In Bramble v. State, Dept. of Justice, Motor Vehicle Div., 982 P.2d 464 (Mont. 1999), the court found insufficient reasonable articulable suspicion to conduct field sobriety tests where the officer responded to a report of a suspected drunk driver, the defendant had crossed the center of the highway briefly, and was traveling at 65 miles an hour in a 35 mile an hour zone. The driver denied drinking and the officer detected no odor. The court relied on Hulse v. State, Dept. of Justice, Motor Vehicle Div., 961 P.2d 75 (Mont.1998) which had held that field sobriety tests are a search requiring reasonable articulable suspicion.
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