Voluntary Consent for FSEs

Is voluntary consent required for the administration of Field Sobriety Exercises? In many DUI cases, the criminal defense attorney will ask the court to exclude any motion of the defendant’s performance on field sobriety exercises because the administration of the FSEs was not a product of voluntary consent. 

The issue of voluntary consent is particularly important which it can be shown that the officer did not have probable cause or even reasonable suspicion of impairment when the field sobriety exercises were requested. Courts in Florida have taken many different views on when free and voluntary consent is required before the arresting officer can request that the driver submit to field sobriety exercises. 

To avoid these issue, the DUI enforcement officer will often attempt to get consent by asking, "Would you mind participating in some field sobriety exercises?" Most officers are trained not to tell the subject that the tests are purely voluntary. In some cases, if the officer demands that the subject take the tests, the attorney can file a motion to have any mention of the exercises excluded at trial.

Call the attorneys at Meltzer & Bell, P.A. in Fort Lauderdale and Broward County, FL, to discuss the impact field sobriety exercises might have in your case. Call (954) 716-8538 today.


When Does the Officer Request Field Sobriety Exercises?

In many of these cases, the officer will testify that that before asking the driver to submit to field testing, the officer will make observations of certain clues of impairment such as the driver having bloodshot watery eyes, slurred speech and the odor of alcohol. Officers will also testify that when the defendant exits the car, he staggers or appears unsteady on his feet.

Those factors are often enough to provide the officer with reasonable suspicion that the crime of DUI was being committed. Under these circumstances, the court will often find that the officer’s request that the defendant perform field sobriety tests was reasonable under the circumstances and did not violate any Fourth Amendment rights. State v. Taylor, 648 So. 2d 701, 703-4 (Fla. 1995) [20 Fla. L. Weekly S6b].


Cases Finding Consent for FSEs Irrelevant

Some courts in Florida have determined that where there is a reasonable suspicion of impairment, consent is irrelevant. For instance, the court in Taylor v. State, 648 So. 2d 701, 703-704 (Fla. 1995) [20 Fla. L. Weekly S6b], held that a reasonable suspicion standard is required before the administration of FSEs.

The United States Supreme Court held in Terry v. Ohio, 392 U.S. 1 (1968), and subsequent cases that certain investigative stops are permissible under the Fourth Amendment when based on an officer's reasonable suspicion that criminal activity is afoot. The rule is known as Florida's "Stop and Frisk Law" which is codified in section 901.151, Florida Statutes, (1991).

Field sobriety exercises are physical tests that must comply with the Fourth Amendment. To the extent that they are non-testimonial, no Fifth Amendment rights are usually implicated. Allred v. State, 622 So. 2d 984 (Fla. 1993); State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D1942a]; State v. Whelan, 728 So. 2d 807 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D640b].

For over four decades, Florida courts have held that with sufficient legal grounds, an officer can compel a driver to submit to sobriety exercises. State v. Liefert, 247 So. 2d 18 (Fla. 2d DCA 1971). “(R)elevant Florida case law sends the message that Florida courts do not consider consent important in the context of roadside sobriety testing where an officer has reasonable suspicion that a motorist is driving while impaired.” State v. Gilbert, 14 Fla. L. Weekly Supp. 14a (11th Cir. Nov. 17, 2006). Other cases that follow this rule include the following:

  • State v. Winslow, 13 Fla. L. Weekly Supp. 1084b (Volusia County, Aug. 24, 2006); and
  • State v. Muse, 14 Fla. L. Weekly Supp. 890a (Volusia County, June 26, 2007).

Cases Showing that Free and Voluntary Consent for FSEs Must Be Obtained 

The use of the word “request” in the portion of Taylor quoted above has given rise to the argument that consent is required. For many courts, the proper focus is whether there is reasonable suspicion of impairment. If the State establishes at least a reasonable suspicion of impairment, then consent to submit to the exercise is not required to satisfy the Fourth Amendment. 

Consent is an exception to the legal standards of probable cause or reasonable suspicion. Many cases in Florida hold that consent is required for FSEs. 

Without a reasonable suspicion of impairment, an officer is not permitted to compel a person to perform FSEs. For field sobriety exercises, some degree of cooperation of the suspect is required. Unlike a frisk or pat down, as a matter of anatomical autonomy, a person cannot be compelled to walk the line or perform the finger to nose test.

In those cases, the prosecution did not present sufficient facts to warrant a reasonable suspicion of commission of the crime of driving while impaired. See, e.g. Maddox v. State, 14 Fla. L. Weekly Supp. 567a (Leon County, Feb. 26, 2007). Without a reasonable suspicion of impairment, then consent to perform the tests could be relevant. The State would bear the burden of demonstrating voluntary consent under these circumstances.

The State bears the burden of demonstrating consent to submit to sobriety exercises, and not simply submission to apparent authority. This is especially true when there is no reasonable suspicion or probable cause to believe the driver is impaired. 

Without a reasonable suspicion of impairment, an officer cannot require a driver to submit to sobriety exercises. Although a person's physical cooperation is necessary for the exercises to be performed, under some circumstances that fact means that his or her consent is required by the Fourth Amendment.


This article was last updated on Friday, October 28, 2016.

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