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In most driving under the influence (DUI) investigations police officer’s request that the person suspected of driving while impaired submit to field sobriety tests. In Utah, like most states, field sobriety tests are used by police officers to justify arresting a person suspected of driving under the influence1. Additionally, prosecutors will use the person’s performance of the field sobriety tests as evidence of guilt in a DUI trial. Because of this, the accused is placed in a ‘Catch-22′ situation: do the field sobriety tests and perhaps produce potentially incriminating evidence of guilt; or refuse the field sobriety tests and have their refusal used as evidence of guilt at trial.

The United States, Utah and Massachusetts Constitutions state that no person shall be compelled to give evidence against himself2. The Massachusetts Court of Appeals held that evidence of the accused’s refusal to perform field sobriety tests when directed or requested by a police officer to do so violates the privilege against self-incrimination safeguarded by article 12, of the Massachusetts Constitution. In short, the Massachusetts Court of Appeals held that a person’s refusal to participate in field sobriety tests may not be introduced by the prosecutor as evidence of guilt in a DUI trial.

In Commonwealth v. Brown the accused was traveling in the wrong lane of a street and was subsequently pulled over. The police officer noted that the accused’s speech was slurred, his eyes were glassy, and that there was an odor of alcohol coming from his breath. Based on these observations the police officer requested the accused to perform field sobriety tests. The accused attempted to do the field sobriety tests and subsequently stated, “I can’t do this.” The accused’s attorney filed a motion to exclude the statements he made to the investigating police officer.

The Massachusetts Appellate Court reasoned that ordinarily, a prosecutor wants to admit evidence that the accused refused to take field sobriety tests to allow the jury to infer that it is the equivalent of the accused statement, “I have had so much to drink that I know or at least suspect that I am unable to pass the test.” The admissibility of such a refusal would place the accused in a coercive ‘Catch-22′ situation: Take the test and ‘furnish’ incriminating real evidence against oneself, or refuse and produce adverse testimonial evidence of consciousness of guilt. If refusal evidence has relevance to any issue essential to the prosecution’s case, it is because it is reflective of the knowledge, understanding, and though process of the accused. For this reason, evidence of the refusal to perform field sobriety tests when directed or requested by the police to do so violates the privilege against self-incrimination safeguarded by Article 12, of the Massachusetts Constitution.

Wherefore, an attorney representing a person who has refused field sobriety tests should consider filling a motion to prevent the prosecution from presenting refusal evidence to the jury.

1 The most common field sobriety tests are: Horizontal Gaze Nystagmus; Walk and Turn; and One Leg Stand.
2 See, 5th Amendment, United States Constitution; Article 1, Section 12, Utah Constitution; and Article 12, Massachusetts Constitution.