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State ex rel Verburg v. Jones11/1/2005
The State brought this special action to challenge a ruling excluding evidence of a defendant's refusal to perform field sobriety tests from a trial for driving under the influence ("DUI"). By prior order, we accepted jurisdiction and granted relief, with an opinion to follow. This opinion explains why we granted relief.
The special action is from a superior court ruling on appeal from a municipal court DUI conviction. Defendant was charged with two DUI counts: driving while impaired in violation of Arizona Revised Statutes ("A.R.S.") section 28-1381(A)(1) (Supp. 2004) and "per se" DUI, i.e. driving with an alcohol content of .08 or above, in violation of A.R.S. § 28-1381(A)(2). Prior to the municipal court trial, the court denied defendant's motion to prevent the State from commenting on his refusal to undergo field sobriety tests. At trial, a police officer testified that the defendant had refused to participate in field sobriety tests. Defendant appealed to the superior court. The superior court reversed the judgment of conviction on the ground that the officer's testimony should not have been admitted.
The police officer testified that defendant had refused to participate in field sobriety tests:
We got back to the vehicle, and then I was -- I asked him if he would take some tests, and he said he would. I began to do an eye test. I gave him the instructions, basically, for the horizontal gaze nystagmus test. That's when he asked me, "Is this a field sobriety test," and I said, "Yes, it is." He said, "Well, then I don't want to take any field sobriety test."
The prosecutor also mentioned the refusal during closing arguments:
What other evidence do we have of impairment to the slightest degree? We have him speeding, that alone is not . We have him driving on a line, not staying in his lane, driving in two lanes. We have him unable to get out of the vehicle on his own without using the door for balance. Now, we don't have the other field sobriety test because the Defendant refused to provide them .
A jury found defendant not guilty of the per se DUI violation, but convicted him of driving while impaired.
The State seeks special action review of the superior court's ruling. No further appeal can be taken from a superior court appeal arising out of a municipal court judgment. See A.R.S. § 22-375(B) (2002); Ariz. R. Super. Ct. App. P. - Crim. 13(b). However, we have special action jurisdiction without regard to the limits on our appellate jurisdiction. A.R.S. § 12-120.21(A)(4) (2003).
We hold that a defendant's refusal to submit to field sobriety tests can be admitted into evidence in a DUI trial. Our holding rests on the proposition that, when supported by reasonable suspicion that a DUI offense has been committed, the administration of a field sobriety test is a lawful search. If the search is lawful, then the suspect has no legal right to refuse it or interfere with it. If the suspect has no right to refuse, then evidence of his refusal is admissible.
Our holding runs counter to a popularly held notion that a suspect can refuse field sobriety tests. If that idea were correct - if a suspect has a legal right to refuse field sobriety tests - then evidence of the refusal would be inadmissible because it would unfairly penalize the exercise of the constitutional right to be free from unreasonable searches and seizures. See State v. Palenkas, 188 Ariz. 201, 212, 933 P.2d 1269, 1280 (App. 1996).
The popular belief that a motorist can refuse field sobriety tests might be due to confusion between the right to refuse and the power to refuse. A person always has
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