Bellingham DUI Roadside Sobriety Tests Are Admissible But Maybe Not For Long

Bellingham DUI Roadside Sobriety Tests Are Admissible But Maybe Not For Long

April of this year Division 1 of the Washington Court of Appeals not only ignored long standing precedent from the United States Supreme Court, but also, precedent from the WA State Supreme Court.


April of this year Division 1 of the Washington Court of Appeals, in the case of State v. Mecham, not only ignored long standing precedent from the United States Supreme Court, but also, precendent from the WA State Supreme Court. 

The issue before the Court was admissibility of a refusal to perform a voluntary roadside search.  This is commonly known as a refusal to perform roadside tests when being investigated, on the side of the road, for DUI.  These tests are “offered” in almost every DUI stop in every state.  Whether you are stopped and investigated for a Bellingham DUI, a Mount Vernon DUI, or an Oak Harbor DUI, the rule on the admissibility of refusing the roadside tests as set out by the Appellant Court in April is now the same, until the Washington State Supreme Court corrects the ruling.  

As likely as it is that the Appeals Court ruling in this matter will be reversed, because of just how wrong they were, the rule stands for all cases under their authority. That means Whatcom, Skagit, Snohomish, Island, and King Counties are all bound by it.   The case is currently being considered for a review by the Washington Supreme Court and there is great hope that they will accept the case and correct the terrible ruling written by the Appeal Court.  Why is this ruling so poor you may ask?  Well I’m glad you did.  First a brief history.

It has long been recognized that Standardized Field Sobriety Tests (SFSTs) have been used by law enforcement in the “field,” and by virtue of their namesake, it has long been assumed that SFSTs are a reliable mechanism to assess a driver’s ability to drive.  However, nothing could be further from the truth, and their name is misleading insofar as their utility.

Roadside sobriety testing was, and is, designed to help an officer make a decision, a decision to arrest.  Nothing more.  They are not “facts” that magically create the legal standard of Probable Cause. They are not scientific enough in nature to require the administrator to be qualified as an expert, despite their specialized training and knowledge.  They are not considered a reliable “tool” to be permitted to usurp the function of the state certified breath testing instruments. They were not designed, and researched to be a measure of driving ability.

What the SFSTs are is a series of 3 tests, when if administered properly, and per the rigid standards of the developing agency (NHTSA), would provide a roadside officer a scoring measure with thresholds that would then translate to either an arrest, or no arrest decision.  It is only of the rigid thresholds are properly adhered to can the test be used.  

However, within the standards themselves is the various states case case-law on the subject.  In Washington, and specifically in Whatcom County, roadside sobriety testing is a search and as such requires consent as all voluntary searches do.  Therefore, roadside sobriety testing has always been considered a search-it’s not an invasive search like a needle in the arm but it requires specialized knowledge to instruct the person to move, balance, count, and other maneuvers, and then evaluate the person’s performance. 

Also unlike things that an officer can easily see and smell (odor of alcohol and speech, and finger dexterity) these tests are not tasks a person normally does.  In fact the only accurate part of the Appeals Court ruling in this case is the holding (the rule of law announced in a case) that these tests are indeed a search. Previously cases always intimated that they were a search but this case actually states it.  But from this point on the Court got it wrong because in holding that a sobriety test refusal is admissible to show “consciousness of drunk driving guilt,” they rule that the tests are “reasonable” and that they are legitimate “Terry” searches.  Alright, we need a another quick history lesson here.

Under Terry v. Ohio, the United States Supreme Court held that an officer having less than probable cause to arrest, but having a “reasonable suspicion” that a person is, was, or is about to be involved in criminal conduct, may make an investigative stop to determine identity and purpose, and in connection therewith, may conduct a limited (outside pat) search for weapons or instruments of potential danger to the officer.  This principle of a brief “stop and frisk” has frequently been expanded to allow investigating officers to conduct preliminary investigations in DUI cases that include performance of field sobriety tests. 

In Washington the detention itself is the intrusion and implicates the Fourth Amendment and Washington’s more protective Constitution by way of Article 1, section 7.  The Fourth Amendment focuses on “reasonableness”---it has always been the case that a Terry investigation is deemed “reasonable” if it is limited in scope and duration to address the officer’s suspicions of criminal activity. 

It allows an officer to conduct a limited pat-down of the outer clothing of a person in an attempt to discover weapons that could cause harm.    A protective frisk is justified when a police officer can point to 'specific and articulable facts' which create an objectively reasonable belief that a suspect is 'armed and presently dangerous.  

For  example, if an officer has information that an individual could have a gun, that information, when combined with other circumstances that contribute to a reasonable safety concern, could lead a reasonably careful officer to believe that a protective frisk should be conducted to protect his or her own safety and the safety of others.   A well founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.

Washington’s Article 1, section 7, stands for the rule that every warrantless search is illegal.  The reasonableness of the circumstances of the search is never a consideration.  Likewise, also well known is that, a DUI suspect has no legal obligation to participate in Field Sobriety Tests because they are a warrantless search and their admissibility of their results of them depends upon their being taken voluntarily. 

Consequently, their admissibility hinges on them being performed voluntarily because permission is required to search without a warrant.  A request to do the tests is an effort or request  to search, without a warrant, a person for evidence  of intoxication (the exhibition of physical clues which can only be obtained through obtaining or requiring the defendant’s actions).  It follows then that first a person must know that they are being asked by the police to provide permission to search.  In turn, every person has the right to not give permission to undergo a warrantless search.  In doing so a person is exercising their Constitutional right.  They are enforcing their right to be left alone; to be searched only with a warrant;  and exercising a right is not, nor ever been used against a person, and a person’s denial of that permission (US v. Prescott) has never been permitted to be disclosed to a jury…….. Until now.

But more shocking to the legally educated is the fact that the Appeals Court held that the search was a Terry search-a stop and frisk search-that is not invasive and a person cannot decline.  But in doing this the Court expanded and created new law (hopefully only temporarily) without any authority to do so.  In fact it is in direct opposition to decades of precedent.   The Supreme Court of Washington-a court of higher authority than the Appeals Court-recently issued a  post-Mecham ruling, holding that:

the scope of a valid Terry frisk is limited to protective purposes.   The frisk must be brief and nonintrusive. If the officer feels an item of questionable identity that has the size and density such that it might or  might not be a weapon, the officer may only take such action as is necessary to examine such object.  Once it is ascertained that no weapon is involved, the governments limited authority to invade the individual's right to be free of police intrusion is spent.

See State v. Russel.

Despite this clear line of what a Terry stop is, the Mecham Court permitted a Constitutional violation of Mecham’s rights by endorsing the search, or rather his refusal to permit the search.  In justifying their rule, the Court wrote:

There is some physical intrusion with a field sobriety test. The tests involve unusual physical maneuvers that require balance and coordination. They have the potential to reveal information about the suspect's medical conditions or physical disabilities. However, the degree of intrusion is not excessive and a field sobriety test is an appropriate technique to measure the suspect's intoxication.

They allowed this, even endorsed it based on the premise that suspected Drunk Driver’s deserve less protection of their rights than others.  They are blatant in their creation of a clear “DUI exception to the Constitution.”  Maybe that sounds harsh but it is exactly what they did.  How else can they conclude:

we conclude that the field sobriety test is a brief and reasonable method for determining whether an individual is intoxicated. The attendant intrusion was therefore appropriate given Campbell's training and Mecham's evident intoxication. We hold that Campbell's request for Mecham to perform a field sobriety test was justified under the Terry stop exception to the warrant requirement. Thus, even if the field sobriety test constituted a search, it was reasonable based on the totality of the circumstances.

They used the wrong standard and the wrong analyses to achieve a result they wanted.  A result driven by the nature of the crime, and not the law.  There is no place for such law in the law, regardless of the crime alleged.  However, this is the exact reason we have different levels off Courts in our system.  This is why injustices, and incorrect rulings get fixed, but it is also clearly a place where an injustice happens.  Regardless of what you think or feel about those arrested and charged with DUI, their rights are no less important. 

Creating a certain class that is not protected because their accused actions are offensive, dangerous, or any other adjective you choose to describe DUI is wrong.  It is based on the same though process that permitted segregation, gender inequality, and every other law or practice that allowed the unequal application and protections of the Constitutions.  The documents are just pieces of paper, but the Court is charged with setting aside passions and prejudices and without hesitation apply the law, apply the precedent, and prohibit government actions that ignore and disregard the rights of the people.