When Are Police Permitted To Give Field Sobriety Tests?

Imagine you are driving home on a central Ohio freeway after a late dinner and you are pulled over by a police officer. The officer says you were stopped for failing to use your turn signal when you changed lanes. The officer announces he smells the odor of alcohol and asks if you have been drinking. You did have a glass of wine with dinner. The officer then asks you to get out of the car for some field sobriety tests to “make sure you’re okay to drive”. Under what circumstances is the officer justified in doing this?

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This entry is a follow-up to the last entry in this blog, which discussed the case of Rodriguez v. United States.  Rodriguez involved a motorist stopped for a minor traffic violation and detained for a drug dog to arrive. The United States Supreme Court concluded the duration of the stop must not exceed the time necessary to address the traffic violation. The rule clarified in the Rodriguez case is this: any further detention is unlawful unless the officer has a reasonable suspicion the motorist is violating the law.

The rule clarified in Rodriguez is followed in Ohio DUI/OVI cases. If an officer stops a driver for a traffic violation, further detention of the driver for field sobriety testing is unlawful unless the officer has a reasonable suspicion the driver is under the influence. The issue often litigated is what constitutes a “reasonable suspicion”.

What constitutes a reasonable suspicion is based on the “totality of the circumstances”. Many Ohio appellate court opinions address this issue, and the opinions are not entirely consistent. One of the leading Ohio cases, State v. Evans, lists 11 factors for courts to consider when determining if an officer had a reasonable suspicion. The reality is there are many more than 11 factors, and the analysis of reasonable suspicion is very much case-specific because no two cases have exactly the same set of facts.

With the set of facts in the first paragraph, was the officer justified in detaining you for field sobriety tests? Based on the information provided, the answer appears to be “no”. The officer merely observed a minor traffic violation and the odor of alcohol: the officer did not detect any other evidence you were under the influence. If, however, the officer observed additional evidence such as slurred speech, difficulty answering the officer’s questions, or coordination problems, most courts would agree the officer had a reasonable suspicion you were under the influence.

If an officer stops a driver and observes the odor of alcohol, that driver is almost certainly going to be removed from the car for field sobriety tests. While the officer may say it’s to, “make sure you’re okay to drive”, it’s also to obtain evidence to prosecute the driver for OVI.  If the driver is prosecuted, an effective DUI/OVI lawyer should review the evidence closely to determine whether the continued detention for field sobriety testing was justified.