Should you take the Florida field sobriety exercises (FSE's)?
One thing that is often forgotten in criminal law is that you do not have to explain yourself. You do not have to justify your actions. To prove a DUI the police must have a valid reason to stop you, reasonable suspicion of impairment, probable cause for arrest, read implied consent and then the breath test machine comes into play. If all these elements are satisfied they must prove your case beyond and to the exclusion of a reasonable doubt. If you refuse the Field Sobriety Exercises your license will not be suspended (implied consent only applies to the breath test). If you decline to perform the optional field sobriety exercises the only evidence the police will have is that you did not want to perform their gymnastics routine. Police are professionally trained to pick up on minute details in the exercises. If you perform the exercises the officer will document indicators of impairment. If the exercises are not on camera the jury will only have your word and the officer’s (in many instances two officers are present) to rely on. To defend yourself without a video you would have testify and subject yourself to cross examination. This is not to say that an excellent video does not do a tremendous amount of damage to the States case. The goal is generally to not be convicted of DUI and to not lose your license. No evidence will always achieve that goal. If you are focusing on the short term goal of not going to jail probably neither option is a good one.
The field sobriety exercises are highly technical and one missed step could be devastating to your case. The difference between using the tip of your finger and the pad of your finger could cause you to be arrested. By refusing the field sobriety exercises you give the police the least amount of evidence possible. If you decline the exercises the only evidence the cops may have is that you declined. If mistakes are made they might not even be able to do that. If the officer says that your license will be suspended if the field sobriet ecerises are not performed, if the officer lacked reasonable suspicion to request FSE's, a defacto arrest occurs and miranda is not read (this could limit the verbal portions but not physical portions unless the arrest was unconstitutional based on a lack of probable cause.) or a safe harbor is created.
Although the defendant was informed that the test would be brief and was noninvasive, she was not told of any adverse consequences of her refusal to take the test and was given the impression that the test was optional. Although a defendant's refusal to permit police to conduct a test may be admissible where the police have informed the defendant that the law requires compliance, “[w]here ... the authorities fail to tell the defendant that compliance is required and that noncompliance may have adverse consequences, a refusal to comply may be of dubious relevance.” 2 Clifford S. Fishman, Jones on Evidence, § 13:14, at 498 (7th ed.1994). Furthermore, unlike either of the defendants in Herring and Esperti, the defendant was not yet a suspect, had not been arrested, and was not in custody at the time she refused to take the test. In addition, the evidence presented to the trial court indicated that her decision to refuse was also motivated by a cautious desire to speak with her attorney beforehand, a desire that cannot be categorically classified as necessarily motivated by consciousness of guilt.Further, as in Herring, the trial court here was entitled to conclude on the facts that it “would be unfair where the police may have led the defendant to believe that he had a right to refuse” to allow the refusal to be used against her because her decision to refuse was “safe harbor.” Although neither Lallement nor McCann recalled explicitly telling Menna that the test was either compulsory or optional, McCann agreed that the nature of his questioning would have indicated to Menna that she had the option to refuse to take the test. Menna v. State, 846 So. 2d 502, 507 (Fla. 2003).
Reasonable Suspiscion For Field Sobriety Excercises Police officer had reasonable suspicion to warrant detention of defendant following stop, to initiate investigation for driving while under the influence (DUI); officer observed defendant traveling at a high rate of speed, pulled him over, smelled alcohol, and saw that defendant had bloodshot eyes. Origi v. State, 912 So. 2d 69 (Fla. Dist. Ct. App. 2005).
Deputy Recca then observed that Ms. Scott had glassy red eyes, and he detected the odor of alcohol but not slurred speech. He asked if she had anything to drink and she replied that she had consumed two beers and a glass of wine after dinner. He asked her to perform field sobriety exercises and based on his observations, placed her under arrest for DUI. On cross-examination, he acknowledged he had not seen her vehicle weaving or crossing the lanes of traffic. The trial court granted Ms. Scott's Motion to Suppress, finding the “continued detention . . . after issuance of the citation was improper.” The trial court also found “no testimony was presented of any observations made by Deputy Recca that [Ms. Scott] was impaired by the alcohol she had consumed earlier and there was no reasonable suspicion to believe that [Ms. Scott] was engaged in criminal activity.” In Littlefield, an officer followed the driver, conducted a traffic stop for a malfunctioning tail light, and as in the instant case, smelled alcohol and observed that the driver's eyes were glassy and watery. He noticed no other signs of impairment or abnormal speech. The trial court found there was no reasonable suspicion to commence a DUI investigation and granted Littlefield's Motion to Suppress. State v. Scott, 48-2007-CT-113028-0 (FL 9 Cir. App. 2010).