For years, the Montana Supreme Court held that field sobriety exercises performed in a DUI investigation were not a “search” subject to protection under the Fourth Amendment, United States Constitution or Article 2, Section, Montana Constitution. But in 1998, the Montana Supreme Court in Hulse v. DOJ overruled its precedent, holding that
field sobriety tests are not “merely observations” of a person’s physical behavior, but, rather, constitute a search…because an individual’s constitutionally protected privacy interests are implicated in both the process of conducting the field sobriety tests and in the information disclosed by the tests.
Hulse, 1998 MT 108, P33, 289 Mont. 1, 961 P.2d 75, 1998 Mont. LEXIS 78, 55 Mont. St. Rep. 415 (Mont. 1998). The Montana Supreme Court has upheld this decision. State v. Larson, 2010 MT 236, P25, 358 Mont. 156, 243 P.3d 1130, 2010 Mont. LEXIS 399 (Mont. 2010).
Like all searches subject to Fourth Amendment protection, warrantless searches are per se unreasonable absent exceptions to the warrant requirement. When was the last time you saw a warrant used to conduct field sobriety exercises? Still, one of the well-known exceptions is the driver’s consent. Where a person voluntarily consents to a search, the search will be deemed lawful.
These rules of law pose many questions common to DUI investigations. What happens when an officer tells the driver to exit the vehicle for the purpose of performing field sobriety exercises, but the defendant does not express his consent to do so? What if the driver asks the officer questions such as, “am I required to perform these exercises?” What if the officer tells the driver that he is required to perform the exercises? These questions reveal the issues that can arise when the driver expresses the intent not to consent.
In those circumstances, the Court must determine if the driver’s consent was voluntarily made, and if not, whether the officer developed enough probable cause to arrest the defendant for DUI without the evidence that may be suppressed as a result of an unlawful search. If the consent was not voluntary, then the Defendant may have a good faith basis to file various defense motions, such as a motion to suppress statements and evidence and motion to dismiss.
This is a body of law that will likely develop because most officers do not inform drivers that they have a right not to consent even when the driver asks. Defense attorneys should keep their eyes open for this issue in any DUI case. It could provide a substantive defense.