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Refusal to Perform FSTs Not "Consciousness of Guilt" in DUI Stop

The Virginia Court of Appeals ruled last year that refusal to perform Field Sobriety Tests (FSTs) was evidence of "consciousness of guilt," and therefore could be considered by the trial court in determining that the officer had probable cause to arrest for DUI. That is no longer the law in Virginia!

Last week the Virginia Supreme Court reversed that ruling of the Court of Appeals in the case. The Supreme Court said that one's refusal to  perform FSTs --- which are voluntary, not mandatory --- when stopped for DUI is not "consciousness of guilt." Therefore, the Commonwealth may not use a refusal to perform FSTs in a DUI stop against the defendant to support probable cause for the arrest unless other factors (mentioned below) exist. The Supreme Court reasoned: 

A refusal to submit to field sobriety tests ... can often be explained in terms of innocent human behavior. Unlike instances of flight, the use of a false name, or other acts of deception, a driver refusing to submit to a field sobriety test has not undertaken affirmative action to deceive or to evade the police. Moreover, there are numerous innocent reasons why a person may refuse to engage in tests that are not required by law, including that a person may be tired, may lack physical dexterity, may have a limited ability to speak the English language, or simply may be reluctant to submit to subjective assessments by a police officer. Therefore, we conclude that a defendant’s refusal to submit to field sobriety tests is not evidence of “consciousness of guilt,” and that the Court of Appeals erred in applying this principle in reviewing the evidence of probable cause in the present case.

However, if there are other indicia or facts that support probable cause --- odor of alcoholic beverages, slurred speech, glassy eyes, incoherence, confusion as to time and place, unsteadiness --- refusal to submit to FSTs can also be weighed into the probable cause determination.

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Mr. Stelly regularly appears in the courts of the City of Richmond, Henrico County, Chesterfield County, Goochland County, and Hanover County.

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