Do field sobriety tests (FSTs) violate a person’s Fifth Amendment right against compelled self-incrimination?

In a previous posting, I wrote about the definition, history and accuracy of field sobriety tests. Now, I would like to discuss the implications of FSTs on your constitutional rights. Remember, if you are ever charged with a DUI or other crime in Utah, it is important that you hire an effective Utah defense attorney to protect your rights such as one from Greg Smith and Associates. With over 20 years of criminal defense experience in Utah, we have the experience and knowledge to aggressively fight for you.

Does the Fifth Amendment apply to FSTs? No, you cannot invoke your Fifth Amendment right against compelled self-incrimination if asked to perform FSTs by a law enforcement officer. Utah Prosecution Council, Driving Under the Influence Prosecution Manual (2007),

Why doesn’t my Fifth Amendment right against self-incrimination apply to FSTs? In Utah, and the rest of the country, your Fifth Amendment right against self-incrimination does not apply because evidence obtained from FSTs is non-testimonial. The Fifth Amendment only applies to testimonial or communicative evidence, not physical evidence. “Evidence which is testimonial or communicative is that which reveals the subjective knowledge or thought processes of the subject.” State v. Theriault, 696 P.2d 718 (App. 1984).

When an officer administers FSTs, the officer obtains evidence based off of his or her observations of the suspect’s performance. The officer does not force the suspect to make any self-incriminating statements. The Supreme Court of the United States ruled that physical observations made by an officer during FSTs are physical evidence and not testimonial. Pennsylvannia v. Muniz, 496 U.S. 582 (1990). These observations include speech patterns and muscle coordination. In addition, any incriminating statements a suspect makes while performing field sobriety tests do not require Miranda warnings because such statements are considered voluntary. This is because the responses are not elicited from custodial police interrogation. Utah Prosecution Council (2007).

What about my right against self-incrimination under the Utah Constitution? The Utah State Constitution contains a section that protects an individual’s right against self-incrimination. Article I § 12 states: “The accused shall not be compelled to give evidence against himself…” Although this section is phrased differently than the Fifth Amendment of the Constitution of the United States, the Utah Supreme Court has interpreted it as offering the same level of protection as the United States Constitution. Id.

Facing criminal charges in Utah can be a stressful and terrifying experience. However, you do not have to endure it alone. The Utah defense attorneys at the Affordable Legal Advocates will fight for your rights.

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