Tuesday, April 19, 2016

Warning Not Needed

State v. Farrow2016 VT 30


This is a case all about admissibility of standard field sobriety exercises (SFSE) in driving under the influence (DUI) cases. The SFSEs are a series of divided attention tests that drivers are asked to perform physically to aid police in determining whether there is probable cause for a DUI arrest. These generally include an observation test of the subject’s eyes, a test involving walking nine heel-to-toe steps, and a test of standing on one foot. In print, these don’t sound especially hard to do, but they can be difficult given the circumstances of a DUI stop. The person doing the tests is likely nervous, they’re standing on the side of a (possibly very busy) road, it might be nighttime, and a lot of times, they’ve been drinking.

An additional part of the roadside ballet that sometimes gets included is the Modified Rhomberg Test (MRT). This test is designed to help determine if someone has a substance on board that would either speed up or slow down their internal clock. It’s performed by having the person stand with his or her feet together like a cactus, tip his or her head back, and estimate the passage of thirty seconds. Alcohol is a central nervous system depressant. If someone has been drinking, it’s likely the internal clock will go longer than an actual thirty seconds.

Here, Ms. Farrow got stopped for having a bad inspection sticker and was subsequently screened for a DUI. She was asked to perform the MRT. She started to do it, but for some reason stopped a few seconds into the test. She also declined the other field sobriety exercises. At the time of the stop she was 61 years old.

Ms. Farrow had a trial in her case. She tried to prevent the state from introducing evidence about her stopping the MRT. She said since she didn’t actually finish the exercise there wasn’t a conclusion that could be drawn from it, so it was irrelevant and prejudicial. The judge allowed it in anyway, and instructed the jury that although they could infer “consciousness of guilt” from her refusal to do the SFSEs and stopping the MRT, that the jury could also consider other factors or reasons for her actions. Ms. Farrow also argued that the police officer told her she had to do the tests, that she wasn’t given the opportunity to refuse, and that the police officer didn’t tell her that her refusal to do the tests could be used against her to show her “consciousness of guilt.”

Ultimately Ms. Farrow was convicted. She appeals, and SCOV affirms.

SCOV says the following things.

First of all, nobody can be compelled to do SFSEs, and people have the right to refuse to do them. But, there’s established case law that says the refusal to do them can be used against a defendant at trial to show “consciousness of guilt.” Since SFSEs are not testimonial in nature, they do not trigger the right against self-incrimination and warnings that would go with that. Also, the DUI statutes specifically provide that refusal to provide an evidentiary breath or blood test can be used against someone to show “consciousness of guilt,” so it follows that refusal to do SFSEs could be similarly used.

The trial judge is the gatekeeper of the evidence in a trial, and is charged with the duty of making sure the right evidence gets to the factfinder. Some evidence is relevant, but is far too prejudicial or there are other problems with it. The judge has to balance all this to determine whether a piece of evidence’s probative value outweighs other considerations.

SCOV says that the trial court here properly balanced any issues in admitting Ms. Farrow’s roadside physical exercises. Her performance on the MRT was relevant to show her consciousness of guilt, but this was balanced out by the fact that court gave an instruction to the jury saying they could also consider other reasons that someone might stop doing the exercise. Also, the State didn’t offer any conclusions about why Ms. Farrow didn’t finish the exercise, which was a big concern for the defense. There was plenty of room for the defense to argue alternative explanations about what happened.

Ms. Farrow also made a constitutional argument on appeal. When parties bust out constitutional arguments on appeal, the court has to consider them completely anew and without deference to the lower court. SCOV says no to the constitutional arguments.

She argued that the SFSEs constitute a seizure, and that without a warrant, the police can’t conduct SFSEs. Also, she argued that the state and federal constitutions prevent someone from providing testimonial evidence against him or herself without a warning, and that should be extended to field sobriety exercises here.

Dealing first with the Fourth Amendment question, SCOV says that of course a DUI investigation is a seizure—we’ve all agreed on this for years and years. Ms. Farrow takes it a step farther and says that once seized, she’s entitled to some sort of warning before doing the SFSEs that if she doesn’t do them that she needs to be warned that they’ll be used against her. SCOV says there isn’t any law on this anywhere, and they aren’t going to make some here.

Ms. Farrow also argued that under the Fifth Amendment and Chapter I, Article 10 of the Vermont Constitution she needed to be warned that her refusal could be used against her. SCOV reminds us that they’ve ruled a bunch of times that the Vermont Constitution does not provide greater protections than the U.S. Constitution, at least as far as Fifth Amendment protections are concerned (not so for Fourth Amendment protections, which is part of what makes our state constitution pretty fabulous). Since the SFSEs are non-testimonial, they do not require a warning as Ms. Farrow urges.

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