Washington Supreme Court muddies the legitimacy of Field Sobriety Testing
In State v. Mecham, the Washington Supreme Court, for the first time, reviewed the legality of roadside Field Sobriety Testing (FSTs) under the Washington State and Federal Constitutions. The court issued a highly fragmented opinion that somewhat limited law enforcement’s ability to implement FSTs in the future. The court held that law enforcement could compel suspects to perform FSTs while developing probable cause to arrest, but that they could not compel suspects to perform FSTs after the suspect had been arrested. It appears as though the Court will grant Mecham a new trial because he had been placed under arrest on an unrelated outstanding warrant when law enforcement required him to perform FSTs, which he refused.
The dissenters, in two opinions, questioned the legality of FSTs that are not supported by probable cause and the fairness of calling the FSTs voluntary when suspects have no right to refuse to perform FSTs. Separately, the dissenters argued that FSTs are searches because they are tests designed to reveal the inner status and workings of a suspect’s body, much like a blood draw, and that fundamental fairness requires law enforcement to be honest with suspects and inform them that they have no legal right to refuse to perform FSTs upon request. Given the fact that four opinions were filed in the case, these issues could reemerge in later cases in this unsettled area of the law.
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*McKay Chadwell appeared as co-counsel for Amicus Curiae Washington Criminal Defense Lawyer’s Association supporting Supreme Court review in this case.