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Some people will do whatever a police officer asks them to do. Many of us are trained to obey authority and will cooperate by any means possible. How dare we be labeled as disobedient. Others, are a little more skeptical as distrust of authority and law enforcement can run deep. Some neither want to be disobedient nor blindly obedient. They just want to know their rights and protect them. Knowing is half the battle.

If a cop asks you to do field sobriety tests during a DWI stop, do they need a warrant first? Recently, the Minnesota Court of Appeals addressed this question in Vondrachek v. Comm’r of Pub. Safety. Even though the court held that officers do not need to secure a warrant to ask someone to do field sobriety tests, it was a perceptive challenge. The purpose of field sobriety testing is to gather evidence to support a possible DWI charge. So if the police are searching for evidence, don’t they need a warrant to obtain it? In citing Kyllo v. United States, the court determined an officer is merely making visual observations during field sobriety tests and is not collecting actual physical evidence; therefore, no warrant required.

But what about the PBT?[1] Do cops need a warrant to obtain that roadside breath test? It is well settled law that a breath test is a search. The court cannot possibly use the search-incident-to-arrest exception like in Bernard[2], can it? The overwhelming majority of requests for a PBT occur before someone is formally arrested. But nevertheless, the court of appeals reasoned that probable cause existed to arrest Vondrachek before the request to take a PBT and thus no warrant was required. Additionally, the court relied on Brooks to determine that Vondrachek voluntarily consented to the PBT, even though there are very notable differences between those two cases.[3]

In sum, officers do not need to get a warrant before asking you to perform field sobriety tests or to take a PBT. This does not mean, however, that you need to actually perform the field sobriety tests or take the PBT. You can politely decline the field sobriety tests and ask to take a PBT if you think you are close to being under the limit. For more information on this topic, read our blog here about whether you should do field sobriety tests.

Robert Ambrose is a criminal defense and DWI lawyer in Minnesota. He was named a Rising Star by SuperLawyers and is a Top 40 Under 40 National Trial Lawyer. He is also an adjunct professor at the University of Minnesota Law School and Mitchell Hamline College of Law. DWI Lawyer St. Paul MN; St. Paul Criminal Defense Attorney; and St. Paul DWI Lawyer.

[1] PBT generally stands for Preliminary Breath Test or Portable Breath Test. Minnesota Statute 169A.41 refers to it as a Preliminary Screening Test. It is a handheld device that officers typically use at the side of the road while they are determining whether to arrest someone on suspicion of DWI.

[2] The United States Supreme Court consolidated Bernard and Beylund v. Levi with Birchfield v. North Dakota and determined, in part, that evidentiary breath tests are valid searches incident to arrests, but not blood tests.

[3] As the court noted, Brooks had an opportunity to consult with an attorney before deciding whether to test and was also told that he had the right to refuse the test. Neither such occurrence happened in Vondrachek.

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