Walk & Turn, Finger to Nose, One Leg Stand: Oh My! How Florida Courts Have Defined Field Sobriety Exercises

INTRODUCTION If you drink alcohol and get behind the wheel of a vehicle, you dramatically increase your chance of being in a car accident. (1) You also run the risk of being stopped by law enforcement and subjected to arrest and DUI charges. (2) When law enforcement stops a vehicle based on a suspicion of DUI, probable cause must be established before making an arrest. (3) Field sobriety exercises (FSEs) (4) are commonly used police procedures to establish probable cause. (5) Developing probable cause of critical importance, not only because it a prerequisite to a lawful arrest, but also because citizens who operate a motor vehicle in Florida are consenting to a blood, urine, (6) or breath test upon a lawful arrest for DUI. (7) Given FSEs are an important tool in establishing probable cause for a DUI arrest, many Florida courts recently have faced the issue of what legal standard applies to a request for FSEs. This article presents a compilation of Florida case law addressing the aforementioned issue. Part I discusses the background and dictates of the Fourth Amendment, as well as the definitions of and seizure. (8) Part II addresses the various theories courts have established as to what standard required for field sobriety exercises. (9) Part III concludes with a discussion of which legal standard correct and urges the Florida Supreme Court to consider and clarify the standard. (10) I. OVERVIEW OF THE FOURTH AMENDMENT A. BACKGROUND OF THE FOURTH AMENDMENT. (11) The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (12) The purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. (13) The United States Supreme Court has interpreted the text of the Constitution as a two-fold dictate requiring all searches and seizures be pursuant to a warrant (the warrant requirement) and conducted in a reasonable manner (the reasonableness requirement). (14) The protection of the Fourth Amendment not triggered unless the government has engaged in a or seizure. (15) B. WHAT CONSTITUTES A SEARCH At a bare minimum, a search consists of a governmental intrusion into a constitutionally protected area. (16) However, in the cornerstone case Katz v. United States, the Court held that the Fourth Amendment protects people--and not simply 'areas.' (17) Justice Harlan in his concurrence articulated the now famous two-fold requirement for a Fourth Amendment search: first a person have exhibited an actual (subjective) expectation of privacy and, second, the expectation be one society prepared to recognize as 'reasonable.' (18) In the realm of DUI offenses, (19) the United States Supreme Court has found an attempt to obtain nonconsensual blood or urine samples a search requiring consent, a warrant, or exigent circumstances. (20) In Florida, statutory protections provide blood may be requested upon a lawful arrest for DUI, or compelled by force where law enforcement has probable cause a person caused serious bodily injury or death during the commission of a DUI. (21) However, unlike obtaining blood samples, there are no statutory provisions regulating the administration of field sobriety exercises. (22) Thus, in evaluating the constitutionality of FSEs, it necessary to look solely to constitutional principles. C. WHAT CONSTITUTES A SEIZURE A person seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances, a person would have believed he or she was not free to leave. …