In a Broward County DUI investigation an officer has no duty to tell a suspect that field sobriety tests are voluntary, that the individual has a right to refuse, the consequences of a refusal, or the consequences of failure. However, the officer cannot misstate the law or misinform the individual about his or her rights. Thus, the results of field sobriety exercises were inadmissible where the officer told the defendant that his only option was to arrest him if he did not submit, and he could be “unarrested” if his performance on the tests was satisfactory. Broward DUI attorneys also cite that the results of the sobriety tests were inadmissible where the officer told the defendant that his license would be suspended if he refused to do the exercises. So too, the officer’s representations that if the defendant passed the field sobriety tests and the breath tests, the DUI would “no longer exist,” and he could be immediately released upon posting bail for a license charge, were misleading and required exclusion of the test results. Under such circumstances, the sobriety exercises cannot even be considered for purposes of probable cause. But where the officer told the defendant he wasn’t going to force the defendant to perform any tests, incorrectly advising defendant that by accepting her driver’s license she consented to any sobriety test “requested by law,” rather than “required by law,” was insignificant and didn’t justify exclusion of the field sobriety tests. And where the officer asked the driver to submit to field sobriety exercises, compliance was not coerced merely because the officer informally discussed the implied consent law without being threatening in behavior or language.
The right to counsel and the Fifth Amendment privilege against self-incrimination raise other potential constitutional issues. However, these rights do not apply to field sobriety exercises. There is no right to consult with a qualified Broward County DUI attorney “at the sobriety testing stages of a DUI investigation.” Similarly, the privilege against self-incrimination has no impact on the admissibility of field sobriety test results.
Broward County DUI attorneys warn that such tests are not testimonial. As previously noted, they produce evidence of physical characteristics, which constitutes physical evidence. Accordingly, the privilege against self-incrimination does not bar the introduction of field sobriety tests results. In fact, this privilege does not even bar the court from compelling the defendant to perform the tests in the courtroom. It should be noted, however, that some court decisions have found that certain types of field sobriety tests do elicit testimonial evidence and, therefore, implicate the privilege against self-incrimination and Miranda issues.