You’re damned if you do and damned if you don’t when it comes to the FSTs

If you have been arrested for a DUI then chances are you were offered the field sobriety tests by the arresting officer. If you follow this blog then you will know that in my opinion these so called “tests” are designed for people to fail. And because of this DUI Attorneys have always advised those facing these tests to politely decline. However due to the recent case of State v. Mecham it seems drivers are damned if they do the tests, and damned if they don’t do the tests.

Here is a refresher on State v. Mecham. In case you forgot that case held that a field sobriety test is an exception to the warrant requirement pursuant to a Terry stop and therefore it is a reasonable search and a warrant is not required. Secondly because a warrant is not required it is not protected by the 4th amendment and therefore a Prosecutor can comment on a defendant’s refusal to perform the field sobriety tests because there is no constitutional right to refuse the test. In other words a Prosecutor can argue in trial the reason a defendant declined the tests is because they knew they were going to fail and guilty. Talk about some BS huh? Well its getting worse.

In the past few months I have had several Judges find that police officers can now use a driver’s refusal as evidence of guilt and subsequently use it justification for probable cause to arrest. Say what you’re asking? Yes that read that correctly, let me paint a picture for you.

Let’s say you get stopped for a DUI in King County, WA and you had a single drink. You exhibit no coordination issues, no slurred speech, no facial color issues, no finger dexterity issues, no signs of impairment. Only the odor of alcohol. The officer then asks you to exit the vehicle and perform some “voluntary” field sobriety tests. You politely decline like any Seattle DUI Attorney would and you get arrested. Seems like there would be a problem with probable cause, right? Well not according to many Judges here in King County. As soon as you exercise this right, after all these tests are voluntary aren’t they, a Judge will find the arresting officer had probable cause to arrest you because only a guilty person would decline these tests. Talk about some bullshit.

So the moral of the story. If you get stopped for a DUI then you’re damned if you do the tests, and you’re damned if you decline the tests. Either way you will get arrested for a DUI, and either way a Judge will find there was probable cause to arrest. Hopefully this State v. Mecham case goes on to the Washington State Supreme Court and gets overturned because I’m sick to my stomach thinking about this case.

Not only can a Prosecutor argue a driver refused the field sobriety tests because they were guilty, but now a Judge can find probable cause if a driver refused the tests based on this silly reasoning.

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About the author: Matthew Leyba is a DUI Attorney in Seattle, WA. He has been repeatedly recognized as a Rising Star in the field of DUI Defense by the Seattle Met Magazine. He is also rated a perfect 10 out of 10 by Avvo.com, a lawyer rating service.

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