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People v. Rizzo: Asking Drivers To Get Out of the Car and Take Field Sobriety Tests

May 5, 2015 Uncategorized

Let’s say a police officer pulls you over and smells alcohol on your breath. Is that enough basis for the officer to make you get out of the car and ask you to perform field sobriety tests?

The Court of Appeals in the case of People v. Rizzo said yes. The smell of intoxicants alone (the alcohol) is sufficient for the police to continue an investigation of you after a traffic stop and ask you to perform field sobriety tests.

Facts of the Case

In this case, the police officer pulled over Defendant Rizzo for a defective taillight. The police officer did not claim any bad driving as the basis of the stop. After she was pulled over, the police officer claimed to smell the odor of intoxicants on Rizzo’s breath. On this basis alone the officer asked Rizzo to get out of the car and perform field sobriety tests.

From there, the officer believed Rizzo’s performance on the test showed intoxication and he asked her to take a preliminary breath test (PBT). Rizzo blew a .11 on the PBT, then blew a .12 on the Breathalyzer test at the police station. Rizzo was charged with operating a motor vehicle under the influence of an intoxicating liquor/unlawful blood alcohol level.

The Arguments and Court

At the District Court level, the defense argued to suppress the results of everything that came after defendant was ordered out of the car, including the sobriety tests, the PBT, and the breath test at the station. The grounds for this argument was that the officer did not have a proper basis for asking Rizzo to get out of the car and perform sobriety tests.

The District Court agreed there was no reasonable cause for the extended investigation. The Circuit Court agreed with the District Court. The Prosecution appealed to the Court of Appeals.

The Law

The United States Supreme Court in Terry v. Ohio ruled that a police officer may conduct a brief investigative stop where the officer has reasonable suspicion of ongoing criminal activity. The Court looks to the totality of the circumstances to test the reasonable suspicion. The Court will give defense to police officer’s opinions and views. The reasonable suspicion determination must be made at each phase of the investigation in order to extend the investigation into a new phase.

Analysis of Law to Facts of Case

It was undisputed in the case that the police officer had the grounds to pull over Rizzo in the first place. The reasonable suspicion to pull her over was based on the defective equipment. The specific question for the court was whether the smell of intoxicants on her breath alone provided new reasonable suspicion to extend the stop to the next phase, which would be asking Rizzo out of the car and to perform FSTS. In a sense there are two separate detentions here – the pull over and the field sobriety tests.

The police officer must have reasonable suspicion of ongoing criminal activity to conduct both stops. If the officer has reasonable suspicion of ongoing criminal activity, he can extend his detention of the person past the initial detention. The police officer needs further reasonable suspicion to extend the detention because that second detention is intrusive for Fourth Amendment.

The Court’s Decision

The Court believed and ruled that the odor of intoxicants, standing alone and without anything more, is enough to justify a police officer in extending the stop and investigation and asking a driver to conduct field sobriety tests.

Basically, the fact the police officer smelled intoxicants justifies the officer’s belief that a driver may be intoxicated and therefore justifies the officer’s ability to extend the stop of the driver to investigate whether the person is intoxicated.

Do You Have to do the Field Sobriety Tests?

Although the police officer may ask you out of the vehicle if the smell of alcohol is present, that does not mean you must take the field sobriety tests. In fact, the majority of attorneys practicing criminal defense or OWI law will say there is no benefit in taking the tests. First, there is no penalty for refusal. It’s not even a civil infraction. What the police do is state assertively, “ok we’re just gonna run you through some sobriety tests real quick.” The officer might even say, “if you pass these DWI tests then we’ll let you drive home.”

Here’s the reality. Once that officer smelled booze on your breath, the officer made the decision that you’re impaired or intoxicated and that you’re going to jail. The rest is academic. That’s brings me to the second point here. The FSTs just provide the police officer with additional reasonable suspicion to ask you to take the preliminary breath test or provide enough evidence of impairment to give the officer probable cause to arrest you.

The field sobriety test is a series of tests designed to provide the officers with different cues of intoxication. The officer will arrest you and have grounds to arrest you and tell a judge and jury you’re intoxicated if the officer determines those cues are present. Why voluntarily give the officer those cues? There’s no reason why you should. By refusing the tests, you’re limiting the evidence the police officer can gather on you.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at

Sam Bernstein is an Ann Arbor Criminal Defense Attorney.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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Call ArborYpsi Law to see how we can help you. We represent clients in courts throughout Washtenaw County and metro Detroit on drinking and driving charges. We can offer free initial consultations to explain the law and get a sense of your situation to see if we’re the right attorney for you.