Are Field Sobriety Tests A Search

Unquestionably, standardized field sobriety tests or SFST’s are a search. Pursuant to Art. 1 § 7 of the Washington State Constitution, persons are to be free from government intrusion into their private affairs.

Although the government argues otherwise, SFST’s are a search because they require intrusions into private affairs. It is undeniable that asking someone to walk in a certain way, stand on one foot, etc. is intruding into private affairs. Despite this obvious intrusion into private affairs, the government argues that it is not a search or it is a search incident to arrest. These arguments are specious.

Courts in other states that have examined this question have all concluded that SFST’s are a search. These decisions include the following: Colorado v. Carlson, 677 P.2d 310 (1984); Arizona v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986); Oregon v. Nagel, 320 Or. 24, 880 P.2d 451 (1994); Hulse v. Montana Dept. of Justice, Motor Vehicle Division, 289 Mont. 1, 961 P.2d 75 (1998); Idaho v. Ferreira, 133 Idaho 474, 988 P.2d 700 (1999); and Blasi v. Maryland, 167 Md.App. 483, 893 A.2d 1152 (Md.App. 2006).

Hopefully, Courts in Washington State will take the same view.