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Orlando Criminal Defense Lawyer > Blog > DUI > Do Florida Police Officers Need Consent to Administer Field Sobriety Tests?

Do Florida Police Officers Need Consent to Administer Field Sobriety Tests?


When a Florida police officer suspects a person of driving under the influence (DUI), the officer may administer one or more “field sobriety exercises” or FSEs. For example, an officer might ask the driver to touch their finger to their nose or walk heel-to-toe for a specified distance. In theory, an FSE can help the officer determine if “probable cause” exists to place the driver under arrest on suspicion of DUI.

Appeals Court Rules Sobriety Test Results Admissible Evidence

The Florida Supreme Court has said if an officer has “reasonable suspicion” that a suspect may have committed a DUI, the officer can demand an FSE as part of their investigation. The suspect does not have a constitutional right to refuse. Nor does the officer have to seek the suspect’s consent.

The Florida Fifth District Court of Appeal recently confirmed this rule in a DUI case, State v. Johnson, from earlier this year. A police officer in Brevard County, Florida, initiated a traffic stop of the defendant. While conducting the stop, the officer formed what they considered a reasonable suspicion that the defendant might be intoxicated. The officer then directed the defendant to perform a number of FSEs. The defendant complied.

Before the trial court, however, the defendant maintained they did not give voluntary consent to the FSE. The defense therefore moved to suppress any evidence gathered from the FSEs as a violation of the defendant’s Fourth Amendment rights. The trial judge granted the motion. The state then appealed.

The Fifth District sided with the prosecution. Citing a 1995 decision from the Florida Supreme Court, the Fifth District said that “when reasonable suspicion exists that a defendant has committed a DUI, the defendant can be required to perform FSE’s and consent is immaterial.” The prosecution could therefore use the evidence obtained from the FSEs at the defendant’s trial.

Did the Police Have Probable Cause to Arrest You?

You may be wondering how “reasonable suspicion” differs from “probable cause” in the context of a DUI arrest. Reasonable suspicion is a lower burden of proof. It essentially means that an officer cannot detain you without an objectively reasonable basis for suspecting some sort of criminal activity. Put another way, the officer must have some factual basis to detain you. In many DUI cases, the officer observing the defendant committing a traffic violation is usually sufficient to create reasonable suspicion.

Probable cause, in contrast, means there are sufficient objective facts to support an arrest, as opposed to simply detaining a suspect for further investigation. If an officer sees you driving erratically, smells alcohol on your breath, or you fail a lawfully administered FSE, those could all support a finding of probable cause.

When it comes to a criminal trial, however, the prosecution’s burden of proof is always “beyond a reasonable doubt,” which is far greater than either reasonable suspicion or probable cause. An experienced Orlando DUI defense lawyer can advise you of your rights in this area and represent you in any criminal proceeding. Contact the Joshi Law Firm, P.A., today to schedule a free consultation.



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