Interviewer: So, at this point, how does the Fourth Amendment come into play? When is the officer going to articulate why they have reasonable suspicion and suspect you’re a DUI?
There Are Three levels of Police Encounters as Defined by the Fourth Amendment: A Level One Encounter Is When the Police Can Question You
Court: Legally, under the Fourth Amendment law, there is a framework for stops. There are three levels of encounters is the way it’s defined in the law. A level one encounter is the officer doesn’t have to have any reasonable suspicion, but he can ask you for identification or something similar to that. He can ask you anything he wants. You don’t necessarily have to answer. But he can ask you “What’s your name? Can I see your license?” So that’s a level one encounter.
A Level Two Encounter Is When the Police Have Reasonable Suspicion
A level two encounter is where he has reasonable suspicion. He doesn’t have probable cause, but he has reasonable suspicion that you are committing a crime. And at that point, he can investigate that crime. If he has reasonable suspicion that you’re driving under the influence, then he can investigate you for driving under the influence by asking you questions such as, have you been drinking, where you are coming from, and what are you doing. So, that is allowable as long as he has reasonable suspicion.
A Level Three Encounter Is an Arrest
The level three encounter is when you actually are placed under arrest. In order to arrest you, he has to have probable cause, which basically is a higher level of suspicion. So, for instance, if you have watery eyes, and they’re bloodshot, and you have an odor about you of alcohol, that will give him reasonable suspicion to investigate you for a DUI, but it doesn’t give him probable cause. There are a lot of other explanations for the physical characteristics that he has observed, for example, allergies can cause you to have bloodshot, watery eyes. It’s just not enough to actually arrest you.
When the Officer Has Formulated Reasonable Suspicion, You Will Be Questioned and Asked to Perform the Field Sobriety Tests
Interviewer: Is that why they’ll ask you to do field sobriety tests, for instance, or they’ll ask you more questions?
The Officer Uses Your Performance on the Tests as Evidence That His Reasonable Suspicion Is Warranted
Court: Yes, exactly. As soon as the officer develops reasonable suspicion, then what he’s trying to do is put you through a series of tests. And the idea of those tests is that if you fail them or you exhibit certain clues that will give him probable cause to arrest you.
To Avoid Providing Evidence That Can be Used against You, You Do Have the Right to Decline the Field Sobriety Tests
So, before the officer asks you to step out of the car and asks you to do the field sobriety test, he doesn’t have enough evidence to arrest you at that point. So, really, all you have to do – and unfortunately people don’t realize this until after they’ve been arrested, because they’re not attorneys – but all you have to do is not say anything else and not consent to any field sobriety tests and not consent to any searches or anything.
If you refuse, you are lessening the amount of evidence you are providing to the police. The officer has reasonable suspicion, but he doesn’t have enough probable cause to actually arrest you. So he’s just going to have to let you go unless he has some hard evidence that you’re driving under the influence.
What you’re thinking as you perform the field sobriety tests is you are trying to pass the test and convince him that you’re not drunk, but the problem is the officers, quite often, they’re already pretty convinced that you’re drunk, and all they’re doing is looking for clues to use in a report to give them probable cause to arrest you.
Agree to or Decline the Field Sobriety Tests: Do You Have Any Chance of Being Released by the Police and Not Arrested?
Interviewer: Have you ever seen anyone refuse a field sobriety test, and then be let go? Or do the officers somehow find a way to establish probable cause?
Court: I’m not going to say that all the time everybody’s going to get arrested. I’ve heard stories from friends that have been stopped, and they’ve taken field sobriety tests, and then the officers ultimately let them go. So, it doesn’t always happen that once the officer gets you doing the field sobriety test he’s going to arrest you no matter what.
It Is Highly Probable That You Will Not Pass the Field Sobriety Tests
That being said, it’s very, very difficult to “pass” the test, because anything can be taken as a clue. And most often, certain skills on those tests are difficult to perform even if you’re completely sober. So, what it comes down to is whether or not the officer thinks you’ve been drinking. And if he thinks you have, then you’re probably going to end up going to jail that night. I’d say 9 times out of 10, if you start taking those field sobriety tests, you’re going to end up with a DUI that night.