Law Enforcement Bulletin

Sign up for newsletters and other news
Media > Newsletters > Law Enforcement Bulletin > January 2013 > State v. Newsome, Eleventh District Court of Appeals (Ashtabula, Geauga, Lake, Portage, and Trumbull

Law Enforcement Bulletin RSS feeds

State v. Newsome, Eleventh District Court of Appeals (Ashtabula, Geauga, Lake, Portage, and Trumbull), Dec. 10, 2012

Question: Can a peace officer request that a driver perform field sobriety tests based solely on the driver’s admission to consuming alcohol?
Quick answer: No, not without other indicia of drunk driving.

Facts: A city police officer drove up to a recent accident about 7 p.m. The officer saw a motorcycle on its side, an injured person in the middle of the road, and Richard Newsome standing next to his pickup truck. The officer called for assistance and then spoke with Newsome to see if he was involved in the accident. Newsome explained that he had attempted to turn into his driveway when the motorcyclist tried to drive around him on the right, between Newsome’s truck and the curb. So as Newsome turned into his driveway, he hit the motorcyclist. The officer asked Newsome if he had been drinking, and Newsome admitted to having one beer an hour before the accident occurred. The officer didn’t believe Newsome showed any signs of intoxication.
Another officer arrived at the scene. The second officer spoke to a witness, who explained it was Newsome who tried to pass the motorcycle and turn into a driveway, causing the accident. That officer also didn’t believe that Newsome appeared intoxicated, but because Newsome admitted to drinking, the officer had him perform three field sobriety tests. Based on those results, the officer concluded that Newsome was “borderline” and asked him to take a breath test. Newsome voluntarily took the test and registered at a 0.14 BAC, so the officers cited him for an OVI. He later was charged with vehicular assault. Newsome filed a motion to suppress the field sobriety tests and the breath test results based on a lack of reasonable suspicion and probable cause that he was driving while intoxicated.
Why this case is important: The court suppressed Newsome’s field sobriety tests and breath test because no suspicion of intoxication existed. A peace officer may have a suspect perform field sobriety tests if the officer has reasonable suspicion to believe that the suspect has been driving under the influence of alcohol. There are certain factors to consider when determining if reasonable suspicion exists to conduct these tests, which include:
  • Time and day of the stop
  • Location of the stop
  • Any indicia of erratic driving before the stop, indicating a lack of coordination
  • Whether there is a cognizable report that the driver may be intoxicated
  • Condition of the suspect’s eyes
  • Impairments of the suspect’s ability to speak
  • Odor of alcohol coming from the person’s breath or interior of the car
  • Intensity of the odor, described by the officer
  • Suspect’s demeanor
  • Any actions by the suspect after the stop indicating a lack of coordination
  • Suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.
All of these factors, taken together with the officer’s previous experience in dealing with drunk drivers, may help determine if the officer acted reasonably.
Here, the only fact that the officers used in support of administering the field sobriety tests was that Newsome admitted to having a drink. Although this may be a factor to support an officer’s reasonable suspicion of intoxicated driving, a driver’s admission to drinking is not enough on its own. Other factors may have been present (the accident may have shown erratic driving, for example), but the officers only cited to the admission as the reason for having Newsome perform the sobriety tests.
Keep in mind: As the court said in Newsome, it is not illegal to drive a car after consuming alcohol; it’s illegal to drive a car while under the influence of alcohol. Therefore, a driver’s admission to drinking, alone, isn’t enough to request that the driver perform field sobriety tests. You should always try to cite as many of the above factors as possible to justify requiring the driver to perform the tests: erratic driving, slurred speech, glassy eyes, excessive nervousness, odor of alcohol, lack of coordination, etc.
Visit the Eleventh District Court of Appeals website to view the entire opinion.