Field Sobriety Tests & Drivers License Suspensions (JBLM Cop Watch)

If you are a member of the military and have been arrested for DUI on base, your privilege to drive on base will automatically be suspended for 12 months by your branch of the Armed Forces.  You have a right to an administrative hearing but you must request one within 14 days from the date of receipt of the suspension.  At the administrative hearing you have the right to an attorney and you must appear in full military uniform.  The issues which will be reviewed at this hearing are:

Hearing on suspension actions under paragraph 2–4a for drunk or impaired driving pending resolution of charges will cover only the following pertinent issues of whether:

(a) The law enforcement official had reasonable grounds to believe the person was driving or in actual physical control of a motor vehicle under the influence of alcohol or other drugs.

(b) The person was lawfully cited or apprehended for a driving under the influence offense.

(c) The person was lawfully requested to submit his or her blood, breath, or urine in order to determine the content of alcohol or other drugs, and was informed of the implied consent policy (consequences of refusal to take or complete the test).

(d) The person refused to submit to the test for alcohol or other drug content of blood, breath, or urine; failed to complete the test; submitted to the test and the result was 0.08 or higher BAC, or between 0.05 and 0.08 in violation of the law of the jurisdiction in which the vehicle in being operated if the jurisdiction imposes a suspension solely on the basis of the BAC level; or showed results indicating the presence of other drugs for an on–post apprehension or in violation of State laws for an off–post apprehension.

(e) The testing methods were valid and reliable and the results accurately evaluated.


First, let's be clear, drinking and driving is irresponsible, dangerous to yourself and others, and just plain stupid. Don't drink and drive!

If you have consumed any alcohol whatsoever, the safest policy is not to drive. Call a taxi, take an Uber, have a friend or family member pick you up, or have a designated driver with you when you go out. But realistically, we all have had a beer or glass of wine with dinner and still driven home safely and well under 0.08 BAC.

The problem that we face on JBLM isn't that people who are drunk are being stopped and cited for DUI, but that people who are NOT drunk are being cited for DUI by the corrupt and abusive police on JBLM. Individuals who are well below the legal blood-alcohol limit are having their military careers ruined when JBLM Police falsely cite them for driving under the influence.

Should You Take a Field Sobriety Test?

You’ve been stopped by the police, and the officer asks that you perform a standardized field sobriety test (SFST), or that you submit to a preliminary breath test (PBT). Should you take these road-side tests? Maybe you’ve had a couple of drinks, maybe you’re stone cold sober, but in all cases the opinion of attorneys in Washington State seems to be that You Should Not Submit to the SFST or PBT. These road-side tests are voluntary and submitting to these tests cannot benefit you, but they can provide the police officer with the probable cause needed to apprehend (arrest) you.
 
In Washington State, the courts have held that your refusal to submit to SFST or PBT can be used at trial to show “consciousness of guilt”.  Of course, this could be the case, but another reasonable explanation for refusing to submit to SFST and PBT is that legal counsel advises you not to submit to these tests, and that the poor reputation for integrity and honesty of the JBLM Police causes you to fear that the tests will be improperly administered or that the results of the tests will be falsified in police reports. 

Below are the recommendations from a dozen Washington attorneys, as published on their web-sites, concerning field sobriety tests.
 
Emerald City Law Group, Seattle, WA 98119
I have a blanket rule - always say no. Even if you are stone cold sober, refuse to participate in these tests [field sobriety tests]... in Washington State, at least, you do not have to take field tests. You can say no without fear of any retribution whatsoever (you might get arrested, but you’re probably getting arrested anyway). You may be thinking, "even if I do bad on the tests and I’m sober my breath test level will come up low and I’ll be released." Think again. You do not have to have a breath test over .08 to be charged with DUI. If your breath test is under .08 they will use whatever other evidence they have to try to convict you - LIKE YOUR PERFORMANCE ON FIELD TESTS!
 
Webb Law Firm, Seattle, WA 98101
I'm always asked whether someone should (or more commonly should have) take field sobriety tests when asked.  My common answer is no!  Now there is new case law in Washington, specifically State v. Mecham, wherein the court held that although the tests are voluntary the "refusal" to participate in them can be used to show a consciousness of guilt!  Really!  If you decline a voluntary test a prosecutor can say you are guilty?  Yup, according to our Washington State Court of Appeals...  In response, what I would recommend is that you make sure and point out the reason you are declining the tests, some examples would be: (1) a prior or current injury, (2) I was advised to do so by an attorney, (3) if you aren't going to record them I don't want to take them because you could say I "failed" when I didn't, (4) I've been advised they are impossible to pass, they are subjective, and I don't believe I am guilty but I am declining these tests.

Cowan, Kirk, Kattenhorn Law Firm, Kirkland, WA 98033
Do I have to take the "field sobriety tests?" - Unlike blood and breath testing, submitting to "field sobriety tests" is strictly voluntary, although few police officers will tell you so. In many respects, these tests are designed for failure and of the several tests the officer might ask you to take, only three have been shown to have any relevance to proving legal intoxication...

Dellino Law Group, Seattle, WA 98134
Drivers have no obligation to submit to any field sobriety tests or answer any questions by the officer. Until the driver is officially detained and charged with a DUI, they have the right to refrain from all of this. The officer may say that it will go better for them if they submit to the tests or are honest about drinking, but this is rarely the case. The officer wants probable cause or an admission of guilt so that they can make the arrest and legally require the driver to take a chemical BAC test. Never submit to a field sobriety test, regardless of what type of situation you’re in.

Blair | Kim, Attorneys At Law, Seattle, WA 98121
As a driver, you should keep in mind that you are not required by Washington State law to take these tests, and you should respectfully decline these tests so that evidence cannot be used against you. The only tests that you are actually required to take are the evidential chemical tests that are administered at the jail, hospital or police station.
 
Raymond W. Ejarque, Attorney At Law, Tacoma, WA 98402
The field sobriety tests are voluntary, which means you have every right to politely decline the tests and diminish the strength of the State’s case if you are inevitably charged with a DUI. These tests are pretty challenging in nature and the nervousness that follows law enforcement can make them even more difficult. This is the reasoning behind our suggestion to decline all types of field sobriety tests while simultaneously remaining cooperative with law enforcement.
 
Matthew R. Hoff, Attorney At Law, Vancouver, WA 98663
These tests [field sobriety tests] are incredibly problematic in determining if an individual can drive safely. In fact, someone who has not had a drop of alcohol might be unable to perform all of the field sobriety tests. Each person’s individual body, balance and coordination can skew the test results, giving law enforcement an inaccurate determination of whether that individual is drunk. Finally, you have rights. Field Sobriety Tests are voluntary. In the State of Washington you are under no obligation to perform field sobriety tests. The burden of proof is on the State. Why make their job easier by voluntarily agreeing to perform a test sober individuals are capable of failing?

The Law Offices of Barbara A. Bowden, Lakewood, WA 98499
If you have been pulled over by law enforcement or otherwise contacted by law enforcement, and you have been asked whether you will submit to voluntary field sobriety tests, you have the right to refuse to submit to these tests. There is no penalty for refusing these tests.  It is unlawful for the police officer to arrest you solely for refusing field sobriety tests.  Chances are, if the officer is asking you whether you mind performing some tests to "make sure you’re O.K. to drive", the officer is going to arrest you anyway.  The officer has presumed you to be guilty unless you prove yourself innocent beyond all doubt. In sum, it is in your best interests to politely decline all field sobriety tests.  Without the field sobriety tests, the officer may not have probable cause to arrest you.
 
The Law Offices of Jason S. Newcombe, Everett, WA 98201
Washington field sobriety tests - just say NO. Field sobriety tests are not required by Washington State law. Regardless of why you are pulled over or the officer’s suspicions, you are under no obligation to take these tests. If you have been pulled over by Snohomish County law enforcement, or by any other law enforcement agency in Washington State for that matter, you have an absolute right to refuse to submit to any field sobriety tests, and you should refuse to take them. Be polite, but firm.

West Law Office, Russell West - Attorney, Spokane, WA 99204
Field sobriety tests are common tests performed to indicate impairment. These tests are voluntary. If the officer asks you to do these tests do not take them. Refuse to take them in a courteous manner. You could say a simple no thank you I would prefer not to take them. Or you could ask the officer if they are 100% accurate and then say no as any officer should not say they are.  By refusing these tests there is no penalty on your part and only helps them determine a reason to take an evidential chemical test wither through a breathalyser of blood test. The field sobriety tests are subjective on how the officer writes down the results and are commonly failed by someone who is sober. They are asking you to perform a test that is not normal behavior and is difficult to do.

Padula & Associates, LLC, Seattle, WA 98122
If you are pulled over on suspicion of Driving Under the Influence (DUI), the police officer may ask you to submit to a Field Sobriety Test (FST). In Washington State you are under no obligation to submit to a FST. If an officer asks you to exit your vehicle and complete a [FST], it is critical that you know your rights. Washington State law does not require you to submit to FSTs. A police officer may lead you to believe that you must take the FSTs, but you are under no legal obligation to do so. In general, you can and should politely refuse to take any FST. These tests are not measured by an objective standard and typically will only serve to harm your DUI defense.

Lustick, Kaiman, & Madrone, PLLC, Bellingham, WA 98225
When police stop a driver after dark on a weekend, chances are they already think the person is driving under the influence. However, in order to make a DUI arrest, police need "probable cause". This means they must have facts leading a reasonable person to believe that the person is driving under the influence of intoxicants. In other words, police cannot just arrest someone on a mere hunch that the person is intoxicated while driving. They need specific facts suggesting the person is actually driving drunk. Police officers develop probable cause, or facts, through their own observations. Much of these facts come when the driver performs and fails the field sobriety tests (FSTs). The common FSTs include an eye test following a pen, the 9-step line walk and turning test, and standing on one foot for 30 seconds. In addition to these three FSTs that people typically think of, there is also a Preliminary Breath Test (PBT). This is a small, hand-held, electronic breathalyzer tester used for roadside breath tests. Just like the FSTs, the PBT test is entirely optional. Drivers are under no legal requirement to take a PBT.
 

Implied consent laws apply to blood, breath, or urine tests, but do not apply to roadside tests (the SFST and PBT). The roadside tests are designed to develop probable cause to apprehend you. 

The JBLM Police SOP (Appendix 3, Annex C, "DUI Processing" August 2017) states:

"The mere odor of alcohol or drugs on a suspect's breath may not be enough probable cause and must be supported by other factors." 

"If an individual shows signs of impairment during the field sobriety test, the individual will be apprehended for suspicion of DUI."

Roadside tests are designed for you to fail, and even if you perform the tests perfectly, pass or fail is based upon the opinion of the officer administering the test.  

Roadside tests let the police develop probable cause to arrest you. Don't let a corrupt police officer ruin your military career.  Always refuse the SFST and PBT.

 

(This article originally was a post by JBLM Cop Watch (https://pastebin.com/atmJUm0c) and focuses on the military base near Tacoma, WA. However, the statements from the several attorneys quoted in the article and their advice to always refuse field sobriety tests applies to the civilian community as well.)