Roadside sobriety tests can be used only to gather evidence to convict a driver, not to exonerate him, under a decision handed down last week by the Kansas Supreme Court. The court found passage of such tests is only one of many factors that play into the "whole picture" of whether someone should be arrested for driving under the influence of alcohol (DUI).

The decision came down in the case of Bruno Edgar, who was stopped at a driver's license roadblock on July 29, 2007. A police officer at the checkpoint asked Edgar for his license (which was suspended) and noticed a "real light smell of alcoholic beverage" coming from Edgar's white Dodge pickup truck. The officer decided to conduct three of the standard field sobriety tests.

Edgar passed the horizontal gaze nystagmus test, passed the one-leg stand and "did fine" on the nine-step walk-and-turn test. At this point, the officer testified he would not have arrested Edgar, but he decided to try a preliminary breath test (PBT) -- a handheld portable breathalyzer-like device. The officer then told Edgar he had no choice but to submit and that he had no right to consult an attorney regarding the test. Edgar failed and was convicted of DUI.

Edgar appealed, arguing the reasonable suspicion needed to conduct the breath test evaporated when he passed all three sobriety tests. The district court ruled having the initial suspicion was enough to "run a gamut of tests" and that officers should not be hampered by an arbitrary order of which test needs to be performed before another. The high court narrowly sided with Edgar that the sobriety tests must be considered as a factor in determining whether there was reasonable suspicion, but the court punted on the harder question of whether passing all the tests eliminated suspicion.

"We are asked simply whether the results from Edgar's three successful field sobriety tests should have been considered in deciding whether reasonable suspicion existed to request the PBT," Justice Dan Biles wrote for the court. "The answer to that question is yes. And while the Court of Appeals continued the analysis to consider whether there was reasonable suspicion in light of the field sobriety test results in Edgar's case, we need not address that question, which may be a close call at best, given our holding on the next issue."

Edgar had also appealed the preliminary breath screening because the officer falsely told him he had no right to refuse the test. Under Kansas law, refusal to use the handheld breath-testing device is a "traffic infraction." The court treats the test as a search for Fourth Amendment purposes and consent to the search must by voluntary. The high court found it did not matter that the state has an implied consent statute covering the handheld test device.

"So even though Edgar impliedly consented to the PBT under the terms of the statute by driving, such consent may always be withdrawn -- an event made unlikely when a driver is affirmatively misinformed by a law enforcement officer that he or she cannot refuse, which effectively contradicts the statute," Justice Biles ruled. "We hold that the officer's misstatement that Edgar had no right to refuse the PBT rendered the test involuntary... Accordingly, the district court erred by not suppressing the PBT results. And that error also invalidates Edgar's DUI arrest and the subsequent blood-alcohol test."

A copy of the decision is available in a 150k PDF file at the source link below.