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The totality of the circumstances in field sobriety tests


First thing in the morning, it may be difficult for a Sheboygan resident to stand on one leg, follow a light with his eyes, or recite the alphabet backwards. Though these feats are not terribly taxing on a person's physical or cognitive abilities, they may be extra challenging to successfully complete when an individual is transitioning from sleep to consciousness. After a few minutes of wakefulness and maybe a cup of coffee, his success at performing these common field sobriety tests may significantly improve.

This short discussion of how sleep may influence one's ability to perform during a mental or physical test is intended to introduce the important concept of evaluating the totality of the circumstances when seeking evidence of intoxication from a suspected drunk driver. For every test that law enforcement officials utilize to prove that a driver suspected of intoxication is actually drunk there can be a myriad of other factors that explain or defend the way the driver performed on the particular test or tests.

The concept of totality of circumstances arises from criminal law and the idea that police officers may take action without warrants under the Fourth Amendment when exigent circumstances exist. The United States Supreme Court evaluated this concept in the realm of drunk driving cases when it reviewed the matter of Missouri v. McNeely. McNeely had been arrested for speeding and allegedly violating other driving laws; he refused both breathalyzer and blood tests but was forced to submit blood samples to law enforcement officials for analysis. When his blood showed that he was operating his vehicle with a BAC over the state's legal limit he was arrested for DUI.

The Supreme Court ultimately disagreed with the state's application of exigency because it failed to account for the totality of the circumstances present in the case. The state was not allowed to adopt a blanket rule that would override law enforcement officials' mandates that they seek warrants and arrest for cause just because they believed exigencies existed. Though different circumstances may result in different outcomes for Wisconsin drivers, it is helpful to know that the full factual situation of a drunk driving arrest should be considered to ensure that law enforcement officials follow the laws they are charged with upholding.

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Melowski & Associates, LLC
524 South Pier Drive
Sheboygan, WI 53081

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