Word Games

Posted by Lawrence Taylor on December 2nd, 2005

The United States Constitution grants citizens certain rights — and for years now the courts have busily taken scalpels to that great document. One of the favored methods is to play word games. A decision last month by the Arizona Court of Appeals is a classic example….

In State ex rel. Verburg v. Jones, the Court was confronted with a problem: how to permit prosecutors to use a defendant's refusal to incriminate himself with field sobriety tests against him in trial. At trial in municipal court, the defendant objected to the prosecutor using his refusal as evidence of guilt. The trial judge ruled against the defense, the officer told the jury about the refusal, the prosecutor argued it as self-incriminating evidence of guilt, and the defendant was convicted. The defendant appealed to the Superior Court — which promptly reversed the conviction. The prosecution then went up to the Court of Appeals.

The problem: the Arizona Court of Appeals desperately wanted to reverse the superior court and permit prosecutors in Arizona to use refusals against defendants. The old solution: word games.

We hold that a defendant's refusal to submit to field sobriety tests can be admitted into evidence in a DUI trial. Our holding rests on the proposition that, when supported by reasonable suspicion that a DUI offense has been committed, the administration of a field sobriety test is a lawful search. If the search is lawful, then the suspect has no legal right to refuse it or interfere with it. If the suspect has no right to refuse, then evidence of his refusal is admissible.

Our holding runs counter to a popularly held notion that a suspect can refuse field sobriety tests. If that idea were correct 'if a suspect has a legal right to refuse field sobriety tests' then evidence of the refusal would be inadmissible because it would unfairly penalize the exercise of the constitutional right to be free from unreasonable searches and seizures….

A suspect's capacity to withhold his cooperation is not the same as a legal right to grant or withhold his consent. As with breath tests, which also require the suspect's active cooperation, the suspect has the physical power but not the legal right to refuse field sobriety tests…."[The implied consent] law does not give motorists charged with DUI the right to refuse the test; it only gives them the power to refuse and provides for certain consequences of such a refusal. . . .".


Simple: field sobriety tests such as walk-and-turn or one-leg-stand are not actually tests — they are searches! And since they are searches, then an officer can conduct a search if he has probable cause — and since a suspect has no constitutional right to refuse a legal search, then….Presto! We have an illegal refusal! And it's illegal because, well, it's illegal to refuse a breath test, right? [Of course, it's illegal to refuse a breath test because the implied consent law makes it so; there is no such law requiring a suspect to take a field sobriety test.]

"When I use a word", Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean — neither more nor less."

"The question is", said Alice,"whether you can make words mean so many different things."

"The question is", said Humpty Dumpty, "which is to be master — that's all."


(With thanks to Lewis Carroll and Allen Trapp.)

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