Drunk Driving Evidence: The Phases of DUI Detection
Law enforcement personnel are trained in the detection of drunk drivers. This is broken down into several phases of contact. Each phase consists of observations by the senses such as observations of behavior and smell of odors.
Since these phases can be subjectively influenced it seems appropriate that the people should have an idea of what law enforcement is looking for when they try to detect drunk drivers. It is also important to understand these things when defending a drunk driving charge.
1. Driving Pattern
Often, but not in every drunk driving case, the reporting law enforcement officer will describe the driver's driving pattern in his report. This will usually consist of failing to remain in a single lane, driving too fast or too slow, making wide turns, etc. These are observations prior to the decision to stop the vehicle. The officer may also note a traffic infraction that the driver commits prior to the decision to stop the vehicle.
2. Personal Contact
Once stopped, the law enforcement officer will make every effort to describe the driver in such a manner as to imply that the driver is impaired - that he was driving while drunk. It does not matter whether the driver is in jeans or a tuxedo. If the simple act of sitting in an automobile wrinkles the driver's clothes that driver will in all likelihood be described as disheveled. The next description will involve how the driver exits his vehicle and approaches the officer. If the driver, for whatever reason, uses the vehicle as a prop to exit the car the description will read that the driver had to use the vehicle for "balance." All this is more damning because, in Orange County Florida, law enforcement has removed their video cameras from their police patrol vehicles. Their reasoning for doing this was that the videos "weren't helping them." Now the truth becomes whatever the police describe.
Odor of Alcoholic Impurities
Any odor emanating from a suspected drunk driver will be classified as alcohol especially if the driver has admitted to recently consuming alcohol. The officer will subjectively classify whether the odor was "strong," "moderate," or "slight," or use some other vague subjective term to describe it. Of course, this evidence cannot be refuted because it cannot be "collected" but it must be attacked.
3. Field Sobriety Exercises
There is nothing about field sobriety exercises that has to do with your "normal faculties." See Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA (1977). However, by the subjective grading of these abnormal exercises the officer will determine that you are impaired. Note: It is the arresting officer that determines whether you have passed or failed the field sobriety exercises. If he is asking you to take the field sobriety tests he already suspects that you are impaired. If you have been arrested, the officer has failed you regardless of how well you performed. Remember this before you agree to perform these tests.
The following are the "standardized" tests. There are others, such as the "finger to nose" test, but only those listed below have been studied for their results at detecting the impaired driver.
The Walk and Turn
This is the exercise that requires you to stand with one foot directly in front of the other foot while the officer tells you the instructions of the exercise. An exercise, by the way, that you have never formally perform before if this is your first DUI. If you lose balance and move your feet while listening to the instructions - one point, or clue, is scored against you. If you do not then perform the exercise flawlessly - it's another point or clue scored against you. CLUES NEEDED TO "FAIL" = 2.
What the law enforcement officer looking for:
Balance - lifting your arms more than 6 inches from you side is 1 clue scored against you. Can happen at any point during the exercise.
Heel to Toe - does your feet touch heel to toe as you walk? Actually 1/2 inch space is acceptable. (Note how these exercises are not testing "normal" faculties.) Nine steps forward, nine steps back, 18 chances to fail.
Turning Around - The officer is required to demonstrate how you are suppose to turn around. This is often incorrectly instructed and no driver ever seems to do it correctly. Another clue scored against you.
One Leg Stand
This exercise requires the driver to stand on one leg while counting for 30 seconds. Note: it does not require that the driver count to 30 - only hold his foot up while counting for thirty seconds. Often our brave law enforcement officers forget that part of their training.
What law enforcement is looking for:
Swaying - there is no measuring criteria (such as 3 inches from side to side) therefore stand perfectly still or consider the officer counting a clue against you.
Using Arms for Balance - If you begin to lose your balance once, odds are you are swaying and raising your arms. That's two clues - you just failed regardless of your sobriety.
Hopping - Yes, they consider hopping on one leg a clue that you are intoxicated. It seems to be more of a showing of one's dexterity but the obvious does not count here.
Puts Foot Down - Yes, putting the foot down numerous times is going to fail this test for the driver. But remember, the instructions state that the driver do this exercise for 30 seconds. I have had several clients who where marked as failing this test because they put their foot down before counting to 30 despite having held their foot up for 30 seconds.
Horizontal Gaze Nystagmus
The "follow the pen test." This is where the officer holds a pen or similar object in front of your face and asks you to follow it with your eyes. The idea behind this test is that it will show the law enforcement officer when your eyes start the uncontrolled shaking call nystagmus. Studies supposedly show that there is a correlation between early onset of nystagmus and blood alcohol level. Currently this test is not allowed in evidence except by specially trained law enforcement officers - but is used to establish probable cause to arrest people for DUI.
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