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Can drivers stopped for DUI refuse to do Roadside Tests?

The answer to this question used to be an easy, "Yes!" But a recent Washington Court of Appeals decision tells us that drivers who refuse to perform "voluntary" roadside tests at the request of an officer will find the exercise of their rights  will be used against them in court in a prosecution for DUI.

In State v. Mecham, decided this week by the Court of Appeals of Washington, the decision upheld a prosecutor's argument that if a driver refuses to perform "voluntary" roadside tests ("field sobriety tests"), it is affirmative evidence of guilt.

Previous Washington court decisions had recognized there was no legal obligation to perform roadside tests when requested by a police officer. These tests are unlike the obligation to give a breath sample under the "implied consent" statute, RCW 46.20.308.

The defense argued that roadside testing constituted a search, and that the right to refuse to participate in testing was just an exercise of the constitutional right of privacy under Article I, Sec. 7 of the Washington Constitution, our version of the Fourth Amendment to the United States Constitution.

The court agreed roadside testing constituted a search, but ruled that no warrant was required because the roadside testing was not "excessive[ly]" intrusive and  was "reasonable". Since no warrant was required, the court said there was no constitutional right to refuse to participate in the roadside tests. And, since there was no constitutional right to refuse to participate, the prosecution could argue the failure to participate was substantive evidence of guilt.

The court's  analysis is muddled in two ways. First, it conflates the right of police to make a forcible stop to investigate with the right of police to make a limited search for the presence of weapons as part of such an investigative stop ( the so-called pat down or frisk for weapons allowed under Terry v. Ohio). Secondly, the court confuses the limited protection against self-incrimination of the Fifth Amendment with that of the Fourth Amendment, which protects against both searches and seizures.

It seems patently unfair for police to inform DUI suspects that roadside tests are "voluntary" and then to penalize drivers at a trial for taking the police statement at face value. The court's decision creates a dilemma for the citizen who is stopped by the police: do the tests and give the police potential evidence, or assert the right to refuse and have the assertion of the right to refuse labeled evidence of guilt at a subsequent DUI trial.

It will take a decision by our state Supreme Court to clarify this for all Washington citizens.

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