Stopped, Detained And Arrested For Drunk Driving
A driver is said to be under the influence if, at the time of driving, the driver was so impaired by alcohol or drugs that the driver could not operate a motor vehicle safely.
Depending on the state, the charging and conviction of a drunk driving offense can range from a first-time DUI offense (penalty is usually probation and 48 hours of community service, DUI classes, and driving restrictions) to being sentenced to substantial prison time if the drunk driving caused death and was filed as a felony manslaughter with priors.
Drunk Driving Investigations Driven By Three Major Factors:
- Results From Field Sobriety Tests
- Results From Chemical Tests
- Evidence of Dangerous and Erratic Driving
This article covers the investigative stages of the drunk driving traffic stop, detainment, and arrest. We will cover the factual and legal requirements the officer must follow at each stage of the process.
What This Drunk Driving Article Covers:
- The initial contact between the officer and the driver and the legal requirements the officer needs to request the driver to exit the vehicle and perform field sobriety tests.
- The types and accuracy level of field sobriety tests and how your defense lawyer can legally challenge them in court.
- The inherent and subjective weaknesses of field sobriety tests to accurately measure the level of driver impairment.
- The legal requirements needed to arrest the driver and request the driver submit to one of three chemical tests: blood, breath, or urine.
- Determining the accuracy of blood, breath, and urine tests and how your defense lawyer can challenge the accuracy of the test.
Police Stops Vehicle – First Contact with Driver
Evidence Needed to Stop and Detain the Driver
All drunk driving cases start with contact between the driver of a motor vehicle and a police officer. While the police have the right to approach and speak with anyone, they do not have the right to stop, detain and investigate someone unless they have an articulable “reasonable suspicion” that a crime has been committed.
Evidence Needed to Make A Legal Arrest
To make a lawful arrest, the officer is held to a higher standard called “probable cause,” which requires the officer to conclude from the evidence you have committed a crime.
If the drunk driving defense attorney can prove the officer did not have an articulable “reasonable suspicion” to stop the vehicle or lacked the “probable cause” to make an arrest, the court may dismiss the case as a matter of law.
However, obtaining a dismissal based on these grounds rarely happens in drunk driving cases. The reason for this is that police have been well-trained in how to selectively document instances of reasonable suspicion and probable cause in their police reports.
For example, the officer can state that he observed the vehicle swerving between lanes a few times. This single observation alone would be enough to pull the driver over and further investigate the matter.
Can a Police Officer Stop and Detain You for Minor Violations?
Yes, most detentions begin with the officer pulling over a driver who has committed some form of minor vehicle code infraction or appears to be driving dangerously.
The common reasons to stop and detain a driver are based on poor driving, such as speeding, swerving between lanes, and running a stop sign or red light. However, faulty equipment (headlight, taillight, muffler) or expired registration will also provide the necessary pretense to pull a driver over.
The Stop – Officer Approaches Vehicle
Looking For Initial Signs of Impairment
The police officer begins their investigation when approaching the car. As the driver rolls down the window, the officer will check if the driver smells of alcohol; if the driver’s eyes are watery or bloodshot; if the driver is having trouble retrieving their driver’s license and registration, and if the driver’s speech is thick or slurred.
From the officer’s observation, if the officer does not have an articulable reasonable suspicion to believe the vehicle’s operator is under the influence of alcohol or drugs, technically, the police officer must allow the driver to drive off. The officer cannot order the driver out of the car to perform field sobriety tests unless they have probable cause to continue the investigation.
Initial Face-to-Face Contact With Driver – Possible Signs of Impairment
What The Officer Is Looking For Is What The Officer Sees
Officers who pull a driver over at night have been trained at the police academy to look for signs of driver impairment in a driver. It’s no coincidence that officers are not trained to look for signs of sobriety and to report it in their police report.
Initial Evidence of Impairment
- The Driver Smells of Alcohol
- The Driver’s Eyes are Bloodshot and Watery
- The Driver Has Difficulty Retrieving their Driver’s License and Registration
- The Driver’s Speech is Thick and Slurred
Smell of Alcohol
Other Possible Sources of Smell
The smell of alcohol might be in the car even if the driver was not drinking. The smell of alcohol may be coming from the passenger. Not the driver. Even if the driver was at a bar, it is not unusual to smell stale cigarette smoke and alcohol, even if the driver had nothing to drink. While these are possibilities, the officer will be inclined to conclude the driver has likely consumed alcohol.
Drivers Bloodshot And Watery Eyes
Other Possible Causes
There may be several reasons the driver has watery eyes, none of which indicates a lack of sobriety. The driver may be operating on very little sleep; may have worked all day at a computer terminal; may be suffering from a cold or allergies, or the redness could have been caused by cigarette smoke.
Remember that the officer has never seen the driver before and has nothing with which to compare his observations. Notwithstanding, the officer had observed the driver’s bloodshot and watery eyes, which may consider a factor supporting the officer’s belief that the driver may be impaired.
Driver Fumbling Through Their Wallet
People organize wallets in many ways. Some leave their registration in the glove compartment. Some keep their driver’s licenses with their credit cards, and some keep them all together, only separating the cash from the other items. And some people don’t even use a wallet. In effect, some people couldn’t find their license if they were stone sober, in broad daylight, and chained to their waistbelt.
Being pulled over by a police officer late at night makes some people naturally nervous, which can cause the driver to be confused when requested to retrieve their driver’s license. Again, this is another factor that may support the officer’s suspicion that the driver may be impaired. These factors alone may have nothing to do with the driver’s sobriety.
Driver Ordered Out of The Vehicle
Enough Evidence to Further Detain and Investigate
While an officer may associate slurred speech with driving under the influence, it may also be a side effect of certain medications or medical conditions. Remember, the officer has never spoken to the driver before and, therefore, has no idea how the driver’s voice sounds under normal conditions. The driver may have a deep voice and not articulate his words clearly.
The officer is said to rely on a constellation of factors that together can suggest the driver may be impaired.
While one of the above factors may not be enough for the officer to have a reasonable suspicion of impairment, a combination of factors would provide the officer with reasonable suspicion to continue the investigation by having the driver perform field sobriety tests.
Depending on how well or poorly the driver performs on the field, sobriety tests will dictate whether the officer has sufficient probable cause to arrest the driver.
Field Sobriety Test (FST)
Least Effective Way of Proving Impairment
Field sobriety tests are the least persuasive evidence of impaired driving because it is based on the subjective observations of the arresting police officer.
The officer uses field sobriety tests (FSTs) to help determine if, in their opinion, the driver is under the influence and should be arrested for drunk driving. The driver is usually first ordered out of their vehicle.
While standing on the side of the road, an officer places the driver through a series of balance, coordination, and mental cognition field sobriety tests. While each jurisdiction uses its standard field sobriety tests, some tests are used by practically all police agencies.
Balance Tests
Not Everyone Is a Ballet Dancer (or a trained seal)
Standing on one foot, walking an imaginary line in the dark, and leaning backward while having your eyes closed are all balance coordination tests, your defense lawyer will argue, and are not conclusive about the driver’s level of sobriety.
For example, innocent factors affecting balance might have been caused by the physical location and conditions where the driver was being tested:
- The driver was tested for balance at the side of a busy highway, distracting the driver from focusing on the test.
- The testing area was poorly lit.
- Vehicles quickly passing by with their headlights on were causing a distraction.
- The road’s surface was uneven or sloped. Weather conditions such as cold, windy, rainy, or snowing might have been problematic for such testing.
- The person being tested naturally has an unsteady gait or balance problem from natural causes because of a foot or leg injury or merely because the driver was wearing stiff or slippery dress shoes.
- The experienced defense lawyer can use all these factors in court when cross-examining the officer at trial.
Coordination And Mental Tests
Officer’s Subjective Observations
The following are common balance and coordination tests officers ask the driver to perform:
- Touching Fingertips: Asking the driver to touch one’s fingertips from their thumb to their pinky finger while counting the taps out loud forward and backward.
- Alternate Hand Clapping: What does this even mean? Say nothing of ever performing such a task.
- Finger To Nose Test: Asking the person to finger-to-nose test while alternating their arms, with their eyes closed. And if that wasn’t enough, the officer would ask the driver to count out loud backward, beginning with 100.
- Alphabet Soup Test: Reciting or writing the Alphabet Backward from “Z to A.”
Interpreting these tests is highly subjective and can be explained away depending on what was going on when the tests were being administered.
Not only do the location and conditions of the field sobriety test affect the outcome, but the officers can also be doing a poor job explaining exactly what is being asked of the subject. Remember, the investigating officer has demonstrated these tests hundreds of times and expects the subject to get them right the first time he is asked to perform them for the very first time.
Finally, officers are trained to look only for and report on evidence that supports a conviction, disregarding evidence that supports a driver’s acquittal. The officer’s myopic and one-sided view makes them predisposed to conclude the driver was too impaired to drive a vehicle safely.
Eye Nystagmus Test
Officer Pretending To Be An Optometrist
The driver is asked to follow the officer’s pen with the eyes without moving the head. The officer looks to see if the eye pupil “bounces” as it follows the pen. However, this can be an unreliable indicator of alcohol consumption. Antihistamines, certain eye conditions, or extreme lack of sleep can cause nystagmus.
The Officer’s Expert Conclusions
A One-Sided Interpretation
While the officer may conclude that some or all of the above observations were evidence of intoxication and impairment, an experienced trial defense attorney will be able to counter every one of these observations with objections and alternative reasons that have little or no bearing on the issue of whether was impaired and could not drive safely.
No matter how strong the officer’s case may be on field sobriety tests, it will always be measured against the results of the chemical tests. If the driver’s breathalyzer, blood, or urine test comes back with results that are two or three times the legal limit, not even the best of the best of lawyers can help you.
The one major obstacle to winning an acquittal is when these observations are coupled with a high Breath, Blood, or Urine test. Unless the test result is near the sobriety level, the case should be negotiated and pled, assuming the stop was valid, which in almost all DUI cases can be easily justified.
DUI Chemical Tests –Blood – Breath – Urine
Strongest Evidence to Prove Impairment
As of 2023, all states consider a blood alcohol concentration (BAC) that exceeds 0.08 as per se conclusive of drunk driving. Many states, such as Arizona and Alaska, impose penalty enhancements for drivers with a BAC of .15 or higher.
Now it’s time to examine the three types of chemical tests used to prove driving under the influence in criminal cases.
Blood Test – Directly Measures Blood Alcohol Concentration
Most Accurate Test
A DUI blood test is the most accurate because it analyzes the blood directly. However, depending on the facts, an experienced criminal defense attorney will attempt to use the blood test result as a time marker and claim that the driver’s blood-alcohol level reached its maximum level when the blood was drawn at the police station.
Usually, the delay can be as many as thirty to forty minutes or more after stopping the driver. The delay in time opens the possibility that the driver was less than .08 BAC at the time of driving.
Breath Test – Indirect Measure of BAC By Breath
Less Accurate Test
The breath test is considered less accurate than blood tests. This is because the Breathalyzer measures the driver’s blood content indirectly – through a person’s breath – and also because the Breathalyzer must be routinely and adequately calibrated to register accurate results. Add to these problems that the Breathalyzer is scientifically recognized as having an inherent margin of error of .01 percent. When these potential inefficiencies of the Breathalyzer are taken together, they allow defense counsel to challenge the accuracy of its results.
Urine Test – Indirect Measure of BAC By Urine
Least Accurate Test
Urine tests are considered the least conclusive test for measuring the alcohol concentration in blood. An inconclusive result is neither positive nor negative and therefore carries no convincing weight. An inconclusive result can be caused by a contaminated sample or an early-stage infection in the subject.
Refusing a “Chemical Test” After Arrest
If a driver refuses to submit to a chemical test, there is no blood-alcohol result. While this may assist the accused, many states make refusing a chemical test a separate criminal offense.
Many states also suspend the driving privilege of someone who refuses to submit to a chemical test. Therefore, when confronted with an apparent refusal, an attorney might attempt to focus their fight on the allegation that the driver “knowingly refused” to take the test.
Did The Officer Give The Driver A Choice Of Test?
- Did the officer allow a breath test if the driver feared their blood being drawn?
- Did the officer allow for a blood test if the driver could not complete a breath test due to a medical condition (asthma, lung ailments)?
- Did the officer adequately explain the consequences of refusing a test?
- Did the driver actually refuse, or did the officer lose patience with the driver and deprive them of his choices?
Under the legal pretense that driving is considered a privilege and not a right, most courts will suspend or revoke your driver’s license, impose substantial fines, or even order jail time for the driver refusing to submit to a chemical test when suspected of a DUI. The prosecutor need only prove that the driver was suspected of impaired driving and knowingly refused to submit to a test.
Remember, every state has its own laws that set the criteria necessary to prove a drunk driving offense and the penalties.
Consult With a Criminal Defense Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, we strongly advise you to consult with a DUI Criminal Defense Lawyer about your case as soon as possible.
