A major issue in DUI cases has not been fully fleshed out and has caused a lot of confusion among practicing criminal defense attorneys and judges. When a driver is pulled over and the officer has reasonable suspicion that the driver is under the influence of alcoholic beverages or drugs, does that officer have to obtain voluntary consent before requesting that the driver submit to field sobriety exercises?
The leading case on this issue comes out of the Second District Court of Appeals. In State v. Liefert, 247 So.2d 18 (Fla. 2d DCA 1971), the Second DCA held that when an officer has sufficient cause to believe a driver committed a DUI, the driver’s consent to taking field sobriety exercises is immaterial and the officer can require that the driver submit to them, or the refusal can be used against the driver as evidence of consciousness of guilt.
On appeal, the Second DCA reversed holding that consent is immaterial under the Florida Supreme Court’s holding in State v. Mitchell. The Second DCA found that there was sufficient cause to believe that Mr. Liefert was driving while under the influence of alcohol and therefore consent was not relevant.
In the more than fifty years since the Liefert decision,
various county court, circuit court anddistrict court decisions have come to varying conclusions regarding whether voluntary consent is required for field sobriety exercises to be admissible. Courts have taken one of three approaches – 1) voluntary consent is not required if there is reasonable suspicion of DUI , 2) voluntary consent is not required if there is probable cause of DUI, and 3) voluntary consent is always required.
The latest decision has come from the Fifth DCA in State v. Johnson, 5D21-2866 (Fla. 5th DCA, May 5, 2023). In Johnson, the Fifth DCA held that where an officer has reasonable suspicion that a driver is under the influence, the officer does not have to obtain voluntary consent from the driver before directing the driver to submit to field sobriety exercises.
In Johnson, the Fifth DCA analyzed the Liefert decision and found that it was consistent with the Florida Supreme Court’s later decision in State v. Taylor, 648 So.2d 701 (Fla. 1995), which held that a refusal to submit to field sobriety tests was admissible where there was reasonable suspicion of DUI. The Fifth DCA noted that there was nothing in the Taylor decision to suggest that an officer must obtain consent before directing a driver to submit to field sobriety exercises. It follows logically, according to the Fifth DCA, that if the Florida Supreme Court required consent before a refusal to submit to field sobriety exercises could be admitted against a defendant, it would not have found that a refusal was admissible against a defendant that exercises the right to refuse. So, the Fifth DCA held that a defendant has no right to refuse field sobriety exercises and therefore consent is immaterial.
So, in the Fifth DCA, this issue has been foreclosed. A refusal to submit to field sobriety exercises is admissible when an officer has reasonable suspicion that the person has committed a DUI and whether that officer obtained voluntary consent is immaterial.
Of course, consenting to field sobriety exercises is not mandatory and any person can refuse to submit to them. A person cannot be forced to perform field sobriety exercises. However, a