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Supreme Court Affirms Admission of Evidence of Defendant’s Choice to Not Complete Field Sobriety Exercises

In State of Vermont v. Tisa Farrow, 2016 VT 30 (March 11, 2016), the Vermont Supreme Court affirmed the trial court’s decision to admit evidence of defendant’s choice not to complete a modified field sobriety test.

Issue: In September 2012, defendant was pulled over for driving a car with an expired inspection sticker. The state trooper who pulled her over noticed that she seemed intoxicated, so he asked her to get out of the car. As she did, he saw three empty wine bottles on the floor of the car. Defendant refused to perform field sobriety exercises due to her age and balance problems. She did do a Modified Rhomberg Test (MRT), and stood with her feet together, arms by her side, with her eyes closed and her head tilted back for a few seconds, before stopping. After she was arraigned for DUI, defendant filed a motion in limine to exclude the trooper’s testimony of her performance of the MRT and refusal to perform other field sobriety exercises. The trial court denied the motion, noting that a defendant’s failure to do a field sobriety exercise “is relevant as evidence of consciousness of guilt.” Defendant appealed, arguing that the trial court’s admission of the evidence was in error and that the Vermont Constitution and the United States Constitution requires that an officer tell an individual that refusing to perform field sobriety exercises could be admitted as evidence of consciousness of guilt.

Holding: The Court found that the trial court did not abuse its discretion when it admitted the evidence on the MRT because it had probative value and because the trial court could reasonably find that the prejudicial effect of the evidence did not substantially outweigh its probative value. The phrasing of the jury instruction (jurors “could consider whether defendant refused to perform the tests but were not required to draw any inference from evidence of a refusal”) mitigated any potential prejudice and gave defendant the chance to try and prove other explanations for her refusal. With regard to defendant’s constitutional arguments, the Court found that the 4th Amendment does not prohibit officers from conducting field sobriety exercises without a warrant, and also rejected her argument that Chapter 1, Article 10 of the Vermont Constitution prohibits the police from compelling individuals to give evidence against themselves. The Court did note, though, that the holding on that issue was limited, given the vagueness of defendant’s arguments.

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