Everyone has heard the story, or stories, about someone being pulled over for an alleged broken tail light, only to be charged with DWI. But believe it or not, police officers are not out to pull everyone over and charge them with DWI. In fact, they are trained to figure out when it is more likely that someone is driving while intoxicated.
For ease of reading, I will use the term DWI througout this article. But I could easily use DUI, or OUI, or OWI, all of which can mean similar things in different states. But generally police officers divide their DWI detection strategy into three phases, vehicle in motion, personal contact, and pre-arrest screening.
Phase 1: Motion.
In phase 1, the police officer is trying to answer the question of whether to stop the vehicle. It begins with the initial observation of the vehicle and the manner in which it is being driven.
Phase 2: Contact.
In phase 2, the police officer is trying to answer the question of whether to ask the driver to exit the vehicle. It begins with the initial contact with the driver and the observations of the police officer. During the personal contact phase, there is an opportunity for the officer to observe and speak with the driver.
Phase 3: Screening.
Phase 3 generally consists of the field sobriety tests. The officer wants to determine whether there is probable cause to arrest the driver for DWI. The National Highway Traffic Safety Administration recognizes three standardized field sobriety tests – horizontal gaze nystagmus, walk and turn, and one leg stand. Officers will often take this one step further and give a preliminary breath test or non-standardized field sobriety tests.
During all three phases, the police officer looks for certain clues or acts that help demonstrate an increased likelihood that the driver is impaired by alcohol. The officer is further trained to include each one of these observed clues in notes and/or a police report.
So what should be done with this information? Well, knowing about the three phases of DWI detection are the cornerstone of assembling the best DWI defense possible.
I am not your attorney and you are not my client. This is not legal advice; it is merely information. If you need legal advice, then consult with an attorney for your specific situation. If you need a DUI attorney in DC or Virginia, contact a DC DUI lawyer or Virginia DUI attorney without delay.
Field sobriety tests supposedly help measure whether a driver of a vehicle is too impaired by alcohol or drugs to properly perform the multitasking required to drive a vehicle. In other words, they are meant to prove that the driver is either driving under the influence or not.
What is logic? It is the study of the principles that form the basis of correct reasoning. Many logicians distinguish betweeh the principles that form the basis of correct reasoning and the psychology that governs correct reasoning. The ideas are similar, however, in that they both provide measurement for the validity of certain arguments. In plain English, logic is the determination of whether certain conclusions can be drawn from varoius assumptions. Logic becomes obsolete when the various assumptions are incorrect. We can illustrate this problem through the use of field sobriety tests.
Premise: If you are drunk, then you are uncoordinated.
Field sobriety tests, and the guilty verdicts that follow them, are based on this faulty premise. It assumes that you are uncoordinated if you are drunk. But there are so many variables that go into why people would be uncoordinated if they are drunk. It is a fault premise. Let’s take another example. What about the following premise: if you are good at football, then you are fast. Seems reasonable, right? Wrong. What about kickers, punters, or offensive lineman? Some quarterbacks aren’t even fast.
Inverse: If you are not coordinated, then you have been drinking.
The second cornerstone of field sobriety tests, and even more ridiculous than the faulty premise. The inverse assumes that everyone in the world who is uncoordinated – the little kid in elementary school who was always picked last, babies who haven’t learned to walk yet, Gus Frerotte, my sister – are all drunk. The inverse of my football example is that if you are fast, then you are good at football. This doesn’t make sense either. I am fast, but I am not good at football.
Converse: If you aren’t drunk, then you are coordinated.
Put another way, the converse states that if you are not drunk, then you are not uncoordinated. So everyone who isn’t drunk is coordinated. Again, think of the little kid playing kickball. That kid wasn’t drunk. But That kid also wasn’t coordinated. The football converse is that if you are not good at football, then you are not fast. Usain Bolt is not good at football. Usain Bolt is very, very fast.
Contrapositive: If you are coordinated, then you aren’t drunk.
One of the things that law enforcement officers like people to believe is that everyone who is drunk will drive their vehicle like a madman – weaving in and out, crossing over center lines, etc. This is not the case. Plenty of people drive their cars or act coordinated when they are drunk. So coordination doesn’t necessarily mean not drunk. Back to football (because I am a huge football fan), to say that if you are not fast, then you are not good at football (the contrapositive) is also not necessarily true. I again point to the kickers, punters, and offensive linemen of the world.
Why do we care about all this? Well, our criminal system was founded on “innocent until proven guilty.” We would rather see 99 guilty people go free, then lock up even 1 innocent person. So this does matter. Field sobriety tests are unreliable and they don’t prove that someone has been drinking or are guilty of driving under the influence.
I am not your lawyer. You are not my client. This is not legal advice. It is merely information. Every situation is different and you should contact an attorney licensed in your state to discuss your specific needs. If you need a DUI defense attorney in Maryland or Virginia, contact a Maryland DUI attorney or Virginia DUI attorney without delay.
Field sobriety tests. Everyone knows what they are, but few people know much more than that. Standardized field sobriety tests (by the NHTSA) include the horizontal gaze nystagmus test, one-legged stand test, and the walk-and-turn test. Often times, the administering police officer will add some non-standardized tests to the mix.
But what is more important than the type of test given is the purpose for which the test is given. To understand field sobriety tests, you have to know what they are meant for. They are not “tests” in the traditional sense, meaning that you can’t “pass” these tests. They are meant to test whether you are too impaired to drive safely.
Before I go any further, this article is not, nor is it intended to be, legal advice. If you need a DUI attorney, you should contact a lawyer who is licensed in your specific state.
While field sobriety tests are administered every day to determine whether people are too impaired to drive safely, they are inherently unfair. There are so many reasons, independent of alcohol, as to why a driver might perform poorly on these tests. What if the driver is tired? What if the driver is simply uncoordinated? What if the driver is distracted by something else in his or her life?
In addition to all the variables, these tests are usually performed at night under pressurized circumstances on the side of the road. Even the most sober person in the world will have trouble in this environment.
Finally, field sobriety tests (and how the driver fared) are completely in the eye of the beholder. The beholder in this case is the police officer. Whatever he or she says with respect to how you performed is likely not to be questioned.
As a DUI attorney, I am happy when a new client tells me that he or she did not take field sobriety tests after being stopped for suspected DUI. This makes my job a little bit easier (of course, there is usually that pesky breath machine to deal with as well), because the field sobriety tests are designed for the driver to fail.
There are two more things to realize about field sobriety tests. The first thing is that they are usually optional. Find out whether this is the case in your jurisdiction. The police officer will rarely tell you that. If the officer is asking you to take field sobriety tests, he or she has already likely smelled alcohol on your breath and is going to arrest you. Don’t give the state more evidence.
The second thing is that field sobriety tests are not an exact science. Often times, the police officer will not have followed the proper procedure. In other words, the evidence produced as a result of taking the tests is defensible.
For more information on DUI, or other traffic-related offenses, take a look at the traffic attorney blog, written by a DUI attorney.
If you have been pulled over for suspected DUI, and given a citation for driving under the influence, you may believe that you have no chance at fighting your case. But in reality, the prosecution still must prove beyond a reasonable doubt that you were, in fact, driving under the influence of alcohol.
This article is not, nor is it intended to be, legal advice. If you require the advice of a DUI attorney for your specific needs or situation, you should do so. Additionally, remember that not every attorney is licensed to practice in every jurisdiction, so you should seek a DUI attorney that is able to practice in the State or jurisdiction where you received your DUI charge.
1) Driving a vehicle:
a. The State must prove that you were “driving.” The definition of driving varies from jurisdiction to jurisdiction, and it is easy to prove if you were driving down the street in your car, did something wrong, and a police officer pulled you over. But it isn’t easy to prove if the car was stopped in a parking lot or garage, you were asleep, or the car was off. These can raise questions about the driving element.
b. You also need to be driving a vehicle. Again, if you are driving a regular automobile, then this is simple for the prosecution to prove. But what constitutes a vehicle? Again, the issue can be blurred. As an extreme example, what if you are on a bike with a portable fan taped to the car seat, which helps propel the bike forward?
Although it has happened, usually the question of whether a DUI defendant was driving the vehicle is not an issue more often than not. But it is important to know that it can be an issue, if the facts are there to create a dispute.
2) Under the influence of alcohol or some other substance:
a. There are generally two ways the prosecution can prove that you were driving under the influence. The first is through testing your blood alcohol content (BAC), which is the method that we are most keenly aware. “What did you blow?” is often the first question that anyone is asked when retelling their DUI story. Many states have a BAC threshold, which amounts to “under the influence per se,” meaning the BAC at which the State has decided you are automatically deemed under the influence without the need for further evidence. But, in any case where the accused’s BAC is tested, the reliability of the test is an issue. The State still needs to prove that the test is reliable enough that the judge or jury should use it against you.
b. The prosecution can also prove beyond a reasonable doubt that you were under the influence by taking the testimony of others at the scene (i.e. people who observed you in whatever state you were in). This is where field sobriety tests are crucial. If you agreed to take them (in many states, they are optional), then the prosecutor will assuredly ask the police officer his or her impressions about how you did on the tests. Additionally, if you told the officer that you had been drinking, or if you speech was slurred, this is evidence of intoxication. The good news is that you can defend yourself at trial. You or your attorney can poke holes in the witness’s testimony on cross-examination. You can also call your own witnesses, if they have personal knowledge of your level of intoxication.
End note:
The important thing to note is that being charged with a DUI doesn’t mean being found guilty of DUI. There are many ways to challenge a DUI charge, and they start with the elements of the offense.
A DUI citation carries with it a load of consequences. For this reason alone, you should hire a DUI attorney to represent your interests. If you receive a DUI citation in Virginia or Maryland, contact a Virginia DUI lawyer or Maryland DUI attorney without delay.
Suppose it is a Saturday afternoon during college football season, or maybe a Sunday afternoon during the NFL season. You go to the local bar to watch your favorite team, and have a few drinks with your friends. Your team wins and you have a celebratory shot. On your way home, you run a yellow light (or maybe it was red), and the next thing you know you are being flashed from behind by some red and blue lights. You are being pulled over for a routine traffic stop by a police officer. Is he going to give you a traffic ticket for running the red light? Then you realize that you might have a much larger problem – driving under the influence of alcohol. Sure enough, when the officer reaches your window and asks for your name, driver’s license, and registration, he also asks you to step out of the car. When you ask why, he lets you know that there is a strong odor of alcohol on your breath and he suspects you of DUI. He asks if he can administer a few tests. Now what?
In many DUI cases, the police officer who stopped the driver tries to gather as much information as possible at the scene. Once the officer makes the stop, he or she will attempt to administer several tests on the driver. At the scene, it may be the field sobriety tests and a portable breathalyzer test. If the driver either refuses to take the tests, or takes them and fails them, then the driver is usually arrested and transported to the police station. At the station, a subsequent blood alcohol content test is administered, either through another breathalyzer, blood sample, or urine sample. The purpose of the tests is twofold: to determine the blood alcohol content of the driver, and to figure out whether the driver is impaired in his or her ability to drive.
The following are your basic choices when pulled over for suspected DUI:
1) Say no to every test.
DUI attorney’s often advise people to say no to every test, and ask that their DUI attorney be present at any questioning or testing. Other times this occurs when the driver knows he or she is guilty of DUI and will most likely fail the tests. It is important to note that, even though field sobriety tests are optional in many jurisdictions, the blood alcohol content test given at the station generally is mandatory. Most licensing authorities, and state legislatures, have enacted implied consent laws. Implied consent laws state that a driver, upon obtaining a driver’s license, consents to the taking of any blood alcohol content test. Refusal will generally result in the automatic suspension of the driver’s license. In some states, refusal results in a mandatory period of jail time (usually a few days).
2) Don’t take the field sobriety tests.
The police officer will most likely first want to give the field sobriety tests, which may include the subject walking a straight line, saying the alphabet backwards, nystagmus testing, etc. These tests will give the police officer an initial look into the driver’s sobriety level. The officer will observe if and how the subject completes the tests, as well as how the subject behaves, speaks and walks. In many jurisdictions, field sobriety tests are optional.
3) Consent to the field breathalyzer.
While blood tests and urine tests are often administered at the police station subsequent to arrest, they have proven to be unreliable in the field. Enter the breathalyzer, which measures blood alcohol level through determining alcohol on the breath. There are several types of breathalyzer devices, including the breathalyzer, intoxilyzer, and alcosensor, each utilizing a different method of testing. Usually, the field breathalyzer is optional as well.
4) Consent to all tests.
Despite all the DUI literature out there advising otherwise, many people consent to all tests, for various reasons. It might be because they don’t know any better. Or it might be that they know they did something wrong and feel as though they should be punished. No matter what the reason, taking all tests will result in the most evidence against the driver in the DUI case.
5) Consent after refusal.
In many states, there is a certain period of time after the driver is stopped in which the tests must be administered. Some of those states allow you to consent all the way up to the end of that time period. So if you are an intelligent person, or are great at anticipating things, you may be able to time it just right so that you give yourself the maximum amount of time before taking the test.
So what should you do? It really depends on the specific laws and statutes of your jurisdiction. Each of the tests have different consequences, and those consequences vary by state. It is also important to understand that, in many jurisdictions, the driver can still be convicted of DUI without taking any tests. Therefore, you need to learn the laws of your state before making an informed decision.
There are many more than five reasons why you need a criminal defense attorney to help you defend against your criminal charge. But, if you are charged with a crime, these are five very powerful reasons to find a good attorney.
1) You need an advocate.
You’ve heard of “innocent until proven guilty,” right? Well guess what – innocent until proven guilty is dead. What do I mean by that? Well, in your criminal case, the prosecution still has to prove your guilt beyond a reasonable doubt – meaning that each element of the offense must be proven beyond a reasonable doubt. But let’s face it – you have been charged with a crime because the prosecution believes it has sufficient evidence to prove you guilty. Everyone (judge, jury, witnesses, etc.) knows this, so often times a defendant is treated as though he or she is guilty even before the trial starts. Guilty until proven innocent. Well you need someone to remind everyone, including the judge, jury, witnesses, and prosecutor, that you are innocent, and that our legal system was founded on the concept of innocent until proven guilty. A criminal defense attorney can provide that for you.
2) There are a lot of things you do not know.
With the advent of the internet, and quick access to a lot of information, people believe they can adequately defend themselves. There is a wealth of resources out there, both on the internet and in our llibraries. Unfortunately, none of them are a substitute for real life every day experiences. Criminal defense attorneys are in the courtroom going through the process nearly every day. They see these things on a daily basis. They know the tricks of the trade. They know the local procedure. They know the variations between jurisdictions. Most importantly, they know the law. Why take the chance of getting because you failed to follow some nuance when a criminal defense attorney can help you?
3) Laws are not simple.
Each crime is different, and each law contains certain intricacies that a non-lawyer may not understand. If you have been charged with a crime, whether is a violent crime, crime against property, DUI, or other serious traffic offense, you want someone who knows these intricacies to help explain them to you. Criminal prosecutions can move very quickly, and you may be barred from raising certain defenses if you don’t provide timely notice in the required form. A criminal defense lawyer can advise you of the required procedures, applicable deadlines and, most importantly, possible defenses.
A lot of people believe they can just walk into the courtroom, call their witnesses, and tell the judge or jury what happened. But non-lawyers do not get the benefit of the doubt from the judge or jury, and often times don’t even get to tell the judge or jury what happened because they don’t understand what is going on. Then they are left wondering how they were just given a six-month jail sentence. That is just an example, but it happens all the time.
4) Criminal cases move fast.
A criminal case moves very quickly. There are certain things that must be done by the defense within certain time limits. There are certain things that must be done by the prosecution within certain time limits. Without knowledge of when motions must be filed, discovery must be requested and completed, witnesses and exhibits must be identified, you could make a critical mistake. A criminal defense attorney can help.
5) Your life may depend on it.
A criminal conviction could be the difference between life and death. Or the loss of your liberty. Or the loss of property. In any case, there is a lot at stake in any criminal case. Why leave your fate in the hands of a novice (yourself), when you can hire an experienced criminal defense attorney to navigate the waters for you? How much is your life, liberty, or property worth to you? It’s priceless.
The long and short of it is that you need an attorney if you or a loved one is charged with a crime. So do some research, find someone who is experienced and dedicated, then call that attorney immediately.
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