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Field sobriety tests may be a “search” under the Fourth Amendment, but that doesn’t change the legal standard governing when an officer may request they be performed

Town of Freedom v. Matthew W. Fellinger, 2013AP614, District 3, 8/6/13; court of appeals decision (1-judge; ineligible for publication); case activity

Fellinger argues that field sobriety tests are searches under the Fourth Amendment because “[a]n inherent right as a human being is to control and coordinate the actions of [his or her] own body[,]” and, therefore “a fundamental expectation of privacy is implicated when a person is subject to the performance of [field sobriety tests].” (¶12). The Town doesn’t respond to this argument, so the court of appeals deems it to be conceded. (¶13).

However, that concession doesn’t change the quantum of evidence needed before an officer may request a driver to do them because, the court concludes, the “probable cause” standard Fellinger advances is nothing more than the “reasonable suspicion of impairment” standard already in effect, which requires some evidence beyond that supporting the initial traffic stop. (¶¶14-18, citing County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999)). To the extent Fellinger is arguing for the “probable cause to arrest” standard adopted in Colorado by People v. Carlson, 677 P.2d 310, 317-18 (Colo. 1984), the court rejects that standard as “inconsistent with our jurisprudence.” (¶19).

Applying the “reasonable suspicion of impairment” standard here, the court concludes the officer had sufficient basis to ask Fellinger to recite the alphabet and count backward. (¶¶22-24).

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