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The simple answer is “No.” While field sobriety testing creates legal and factual issues in for DUIs, FSTs on the water provide the defense attorney with a plethora of legal and factual issues. Of course, the BUI statute specifically states that an officer shall administer field sobriety tests only when circumstances permit. What that means is anyone’s guess. Rarely, if ever, are BUI arrests, commenced by routine stops, effectuated without the use of some form of field sobriety testing. First and foremost, field sobriety testing constitutes a search. It certainly does not lie within the plain sight exception to the warrant requirement. Since this is a search conducted, theoretically, in the absence of probable cause, an exception to the warrant requirement must exist. The burden of establishing that exception lies with the State. Furthermore, since “consent” is the only exception upon which the Prosecutor could rely, they must establish a boater’s voluntary consent by clear and convincing evidence. Certainly, since no motorist is required to take field sobriety tests, no boater should be placed under a legal obligation to perform such tests. Furthermore, no boater should be arrested simply for not submitting to “voluntary” field sobriety tests.
Often times, law enforcement is rushed to make an arrest decision. In their hurry to make the arrest, they rarely communicate the voluntary nature of these tests. Even if the officer reports to have used the term “voluntary” it is highly unlikely that this will pass the “clear and convincing” test required by case law. Additionally, while many motorists are stopped and arrested as the sole occupant of the car, or they may be removed from the car prior to the FST request being made, thus precluding any passenger from hearing such a request, FST requests on the water are often times made within close proximity to several passengers on the defendant’s boat. Since boating is a recreational activity, it rarely is done alone. For these reasons, a list of all passengers should be immediately provided to your attorney so that they may interview any and all individuals on your boat in order to determine, what, if anything was communicated to the operator to inform them that they were under no obligation to take the field sobriety tests. |
