The Washington Supreme Court recently addressed an interesting constitutional issue in the case of State v. Mecham. The court ruled on the issue of whether or not it was permissible for the prosecution to use Mark Tracy Mecham's refusal to submit to field sobriety tests (FST) as evidence against him at trial.

Mecham was pulled over in 2011 by Officer Scott Campbell after the officer randomly ran Mecham's plates and found that Mecham had an outstanding warrant. Mecham was subsequently placed under arrest. Once under arrest, Campbell noticed that Mecham was exhibiting signs of intoxication and asked him to perform field sobriety tests (FST). Mecham declined to perform the tests and was taken to the police station where he also refused a breath test. Officers then obtained a warrant for a blood draw. The results indicated that Mecham's BAC was 0.065-.08. He was charged with Felony DUI as he had "previously been convicted of 4 or more prior offenses within 10 years."

Mecham attempted to prevent his FST refusal from being used as evidence but he was denied by the court and the evidence was introduced at trial. Mecham was convicted of Felony DUI and appealed. On appeal he contended that a FST was a search under the state and federal constitution and he cannot be penalized for exercising a constitutional right. The Court of Appeals found the even assuming it was a search it was permissible under the "Terry stop exception to the warrant requirement". In addition, the appellate court stated that since Mecham had no constitutional right to refuse the FST, the state could comment on that refusal at trial.

Mecham appealed to the Washington Supreme Court. The state filed a cross-appeal with other arguments for the court to consider. The Supreme Court took up the case.

The court stated that the admissibility of the FST evidence rested on "whether constitutional privileges apply," as the "[p]rosecutors may not comment on a refusal to waive a constitutional right." So the court need to determine whether Mecham had a "constitutional right to refuse to perform an FST." The court looked at whether an FST was a seizure or a search under the Fourth Amendment and under article 1, Section 7 of the Washington constitution, which is the state equivalent of the Fourth Amendment.

The court determined that a FST is a seizure. The court stated a seizure occurs when "by means of physical force or a show of authority" a person's "freedom of movement is restrained." Traffic stops are considered to be a seizure under the constitution, so they "must be based on reasonable suspicion." The court stated that in Mecham's case the officer had reasonable suspicion to pull him over because of an outstanding warrant. The court also stated that asking Mecham to perform a FST is a seizure under the constitution and that Officer Campbell needs reasonable suspicion to request him to do so. The observations of inebriation that Campbell saw were enough to suspect Mecham had been driving under the influence.

The court notes that the FST took place after an arrest and the prior case law mainly deals with authority to perform pre-arrest FSTs. However, the court finds that since Campbell had authority to perform an FST before the arrest, he could do so after the arrest.

The court then turns to the issue of whether or not an FST is also a search and determines that it is not. Mecham contended that "FSTs are searches subject to these constitutional provisions because they reveal private information that is not voluntarily exposed to the public view." The court rejects this argument, stating "FSTs reveal only some physical characteristics associated with inebriation, none of which is substantially different from the characteristics a person would observe from simple observation of the defendant." The court does not equate FSTs with other things that are traditionally considered searches such as searching a person or place for evidence or a blood draw. Nor does the court find that a search occurs because the defendant is required to perform actions when doing a FST or that a FST "enhances officers' sensory perception" like an infrared imaging device.

Thus the court decided that a FST is a seizure but not a search. As Mecham had no "constitutional right to refuse", the prosecution was permitted to use his refusal to participate in the FST as evidence at trial.

What I find so troubling about this position is the fact that law enforcement is now going to inform a suspected impaired driver that the tests are voluntary. Which, in fact, they are. But if a person declines to do the test, they will not be told that their refusal can later be used against them to establish a consciousness of guilt. Unlike Washington's implied consent law, where a driver is informed of their right to refuse a breath test but that their refusal can be used against them, their will be no similar warnings should a driver elect to decline to submit to field tests.