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The Tennessee Supreme Court ruled last week that one suspected of driving under the influence can still be arrested in spite of passing field sobriety tests, a decision overruling a case from 2012 that ruled when a motorist passed six field sobriety tests that he could NOT be arrested. As most assume, field sobriety tests can be the deciding factor as to whether a motorist goes to jail for DUI or whether they go home. While this is generally correct, probable cause for a DUI arrest is generally established by observation of both field sobriety tests and other signs of impairment.

As with any arrest there must be sufficient probable cause to make the arrest legal within the bounds of the Fourth Amendment. Specifically for a DUI arrest it is often the case that the officer detects, upon contact with the motorist, certain impairment indicators that give rise to the officer’s reasonable suspicion that the motorist is committing the crime of DUI. Generally if the officer sees that the motorist has bloodshot and watery eyes, smells of alcohol, has slurred speech amongst other factors, the officer will have reasonable suspicion to request the individual to perform field sobriety tests. If the motorist agrees to perform field sobriety tests and performs in an insufficient manner, the officer will have probable cause to make an arrest. What makes this Tennessee ruling questionable is that even if a motorist passes the exercises put in place by the State to determine impairment, he could still take a ride to the poke. In other words, now it seems that in Tennessee if Officer Friendly subjectively thinks that a motorist is impaired, in spite of sufficient field sobriety test performance, he can now make an arrest. What’s unnerving is that though one can pass objective tests in place to measure impairment and still get arrested, assuming a proper detainer, I know of no case in which one has failed field sobriety tests and a court has found that probable cause did not exist for an arrest for DUI.

The Tennessee Supreme Court cites the fact that they do not deem establishment of probable cause to be a technical process, but rather one requiring “courts to conduct a common sense analysis of the facts and circumstances known at the time of arrest to determine whether these facts and circumstances are sufficient to permit a reasonable person to believe that the defendant had committed or was committing an offense.” While I can understand the spirit of their rule of law, it’s a scary one. I’m not a fan of field sobriety tests to begin with. Regardless of how much the National Traffic Highway Safety Administration and our State police agencies try to shove it in our laps, field sobriety tests are NOT one size fits all. In spite of that, we are told that field sobriety tests are objective and that they are the test of impairment carrying the most weight. Now, Tennessee and other States, tell us that even if the “objective” tests are passed, we can still be arrested for smelling like alcohol (alcohol itself has no odor. One who’s had 6 O’douls or 6 Budweisers will smell the same. It’s the other ingredients in the drink that produces odor), committing a traffic infraction and saying something stupid under a totality of circumstances approach. It’s a dangerous thing when one’s subjective opinion can take away our freedom, if only temporarily.

It will be interesting to see how other States address an issue like this should it arise. If you’ve been arrested for DUI in Tampa, Tampa criminal attorney Jason Mayberry is available for a free consultation. Contact us today at 813-444-7435 or at 727-771-3847.

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