Field Sobriety Tests During Traffic Stops

Several recent inquiries have been variants of the following question: can an officer administer field sobriety tests during a routine traffic stop? In other words, if an officer has reasonable suspicion that a driver has committed a traffic violation, and has a hunch, not rising to the level of reasonable suspicion, that the driver is impaired, may the officer administer field sobriety tests to the driver during the lawful stop?

Absent the consent of the driver, the answer is probably no. First, administering the field sobriety tests would likely prolong the stop. Although the courts have been willing to accept minimal delays in other contexts, see, e.g., State v. Brimmer, 187 N.C. App. 451 (2007), it is doubtful that field sobriety tests could be administered without a more substantial delay, which would render the stop unreasonably protracted.

Even if administering the field sobriety tests wouldn’t significantly prolong the stop, several courts have held that administering such tests constitutes a separate intrusion for Fourth Amendment purposes – and thus, that separate reasonable suspicion must support the administration of such tests. See generally State v. Royer, 753 N.W.2d 333 (Neb. 2008) (“[F]ield sobriety tests may be justified by an officer’s reasonable suspicion based upon specific articulable facts that a driver is under the influence of alcohol or drugs.”); State v. Buell, 175 P.3d 216 (Idaho Ct. App. 2008) (“[F]ield sobriety tests may be analogized to a warrantless pat-down search of an individual for weapons, conducted during an investigative detention . . . [they] may be conducted without consent during an otherwise permissible detention, where they are justified by reasonable suspicion of DUI.”). On this analysis, the administration of field sobriety tests is unlike questioning, see Muehler v. Mena, 544 U.S. 93 (2005), or canine sniffs, see Illinois v. Caballes, 543 U.S. 405 (2005), which are not separate Fourth Amendment intrusions and may be conducted during otherwise lawful stops without any additional justification.