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Andrew Bergh
Andrew Bergh

October 8, 1998

A testimonial toast!

By ANDREW BERGH
Special to the Journal

A windfall for drunk drivers.

That's the best way to describe City of Seattle v. Stalsbroten. Until that decision came along, prosecutors could show in drunk driving cases that the defendant had refused to perform field sobriety tests. Juries then heard during closing argument how the defendant knew he was guilty -- since an innocent person would've taken the tests to prove he was sober.

Thanks to the Stalsbroten case, however, this practice is now verboten. By a 3-0 margin, our state appeals court ruled that the Fifth Amendment right against self-in crimination protects a drunk driving suspect's refusal to perform an FST. While you can't fault the court for upholding the U.S. Constitution, its ruling means drunk drivers have absolutely nothing to lose by refusing to perform FSTs.

If drunk drivers are going to celebrate, they should invite Loyd Stalsbroten to the party.

Just before midnight on a snowy winter evening, Stalsbroten pulled out of a Seattle parking lot with his headlights off. He then drifted back and forth for several blocks between two traffic lanes. After hearing a police siren, Stalsbroten pulled over and waited for Seattle police officer Curt Boyle to greet him at the driver's window.

Boyle observed right away that Stalsbroten looked (and smelled) intoxicated and fumbled through his wallet looking for his driver's license. His suspicions grew when the motorist exited his car and couldn't stand on the sidewalk without swaying from side to side. Stalsbroten wasn't totally blotto, however, as he declined Boyle's request to perform FSTs. Then he was arrested.

Stalsbroten soon faced drunk driving charges in Seattle Municipal Court. Before trial, he moved to suppress evidence of his refusal to perform the FSTs. His Fifth Amendment right against self-incrimination would be violated, Stalsbroten said, if the prosecutor could use this evidence by arguing that it showed his "guilty mind."

Stalsbroten then suffered some setbacks. His motion to suppress was denied. He was convicted by a jury. And his initial appeal was rejected by a superior court judge. Although three strikes normally means you're out, Stalsbroten successfully exercised his last option -- an appeal to our state appeals court.

As most of you may know, the privilege against self-incrimination protects an accused from being compelled to testify against himself. For example, the prosecutor never would have been allowed to call Stalsbroten as a witness and ask him whether he was drunk as a skunk the night of his arrest. But the Fifth Amendment applies everywhere, not just in courtrooms. The issue, the appeals court said, was whether Stalsbroten's refusal to perform the FSTs was "testimonial."

Stalsbroten probably said very little when he declined the FSTs (perhaps a slurred "No thanks"?). Testimonial is defined broadly, however, and also includes implied beliefs communicated by the suspect. The Fifth Amendment was thus implicated, the appeals court said, because Stalsbroten's refusal to perform the FSTs was like saying, "I don't want to take them because I believe I'll flunk."

But although Stalsbroten won the battle, he still lost the war.

It's true, the appeals court said, that Stalsbroten's refusal to perform the FSTs was testimonial under the Fifth Amendment and should've been kept from the jury. In view of the overwhelming evidence of guilt, however, the court let his conviction stand.

For example, the appeals court pointed out how Stalsbroten had displayed all the telltale signs of intoxication, including bloodshot and watery eyes, lethargic and slurred speech, and breath reeking of alcohol.

The court also mentioned how Stalsbroten had introduced himself to Boyle approximately 10 times, each time saying, "Hi. My name is Loyd Stalsbroten, what is yours?"

And the court also observed (this is my personal favorite) how a handcuffed Stalsbroten refused help getting into the patrol car and ended up wedged in the back seat with his feet above his head.

Despite this lighter side, the bottom line is that drunk drivers reaped a great benefit from Stalsbroten's case. At least in the area of field sobriety tests, the moral seems to be: Drink a fifth, then take the Fifth.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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