By Brett Steele, Attorney at Law
I spent the first years of my legal career as a Deputy County Attorney. In the first year I was assigned a misdemeanor caseload of hundreds of cases at a time. Many of my cases were DUIs. Within the first week, I was in a DUI jury trial. That continued on average once a month for the first year. In addition to trying cases to juries, I spent A LOT of time reviewing DUI cases. In my office I had cases coming in from several different law enforcement agencies. The quality of cases varied greatly between different agencies and even officers within that agency. From my experience, most officers are just doing their best to follow the law and their superiors’ instructions. This short post is based on my own experiences. Your mileage may vary. This is not instructions for what to do or not do, though driving while impaired by alcohol or drugs is NEVER a good idea.
The Initial Stop
The law requires officers to leave us alone except in certain circumstances. On the roadway, they can stop us if they observe a suspected or actual traffic violation. This does not mean that they have to have any idea that a driver is impaired. That being said, often officers on targeted patrol want to check if a driver is impaired so they wait to observe a civil traffic violation. Common reasons for an officer to stop someone are speeding, improper lane change, and making a wide turn. Once they see a violation, of which there are many possibilities, they can stop you. From there they are trained to look for certain things.
The easiest cases to prosecute included a clean stop. What I mean by that is an initial stop that is all but irrefutable. If an officer watches you roll through a stop sign, he or she can stop you and begin the next step in the DUI investigation.
An officer must have a legitimate reason to detain you for a DUI investigation. As I said above, once you’re stopped the officer is trained to identify certain things. Yes, they want to see your driver’s license, but they also want to see how you can accomplish the task of getting it out of your wallet. They want to see if you can multitask while they interact with you. Officers are also looking for what they call “an odor of intoxicants”—copspeak for “you smell like booze.” There is no set number of observations before an officer can keep you around for a DUI investigation. Instead, they will evaluate everything they’ve seen so far, starting from the time they saw you driving.
Some of the best DUI cases (from a prosecution standpoint) featured a driver who smelled like booze, had issues handing over their documents to the officer, and slurred when they spoke. It was always a bonus if reason for stop was something commonly noted with DUI—issues with lane position, wide turns, and abrupt braking.
Once an officer has a reasonable suspicion that you are driving while impaired by alcohol or drugs, he or she can keep you around for a more formal DUI investigation. This is the part that you’ve probably seen in movies and TV shows. This is often the part when an officer asks you to participate in a Preliminary Breath Test (PBT). This is also where officers will ask you to participate in roadside field sobriety tests. There have been many studies on these tests and how they can demonstrate impairment. The three main “tests” for suspected alcohol impairment are the Horizontal Gaze Nystagmus (the eye one with a pen, flashlight, finger, etc), the One Leg Stand, and the Walk and Turn.
I say “tests” because it is hard to say what constitutes a pass or fail, especially with the Horizontal Gaze Nystagmus where officers are looking for an involuntary response. While the other two “tests” may seem like physical performance tests, officers are also looking to see how well you can follow instructions and remember how to complete the tasks without being reminded. For suspected drug impairment, there are other things officers are trained to look for. The implications are the same nonetheless. If things aren’t going so hot with the roadside tests, there’s a good chance you will be arrested for DUI.
There are studies that show certain scores on the tests and how those scores correspond with alcohol impairment (and even BAC ranges). From a prosecution standpoint, the more mistakes you make the better. To put things simply, the Walk and Turn and One Leg Stand include “cues” or mistakes that you can make during the test. The Walk and Turn has 8 cues and the One Leg Stand 4. If there were any noted mistakes during the tests, that shows some kind of issue completing the tasks. Even 1 mistake can be important if accompanied by other noteworry signs. In fact, in cases with very few mistakes I would almost always ask the officer during testimony how often he or she observed all of the possible mistakes. The answer was always “never.” Another factor to consider is how a lot of people become chatty after drinking. That often translates to admissions to the very person who is evaluating you for arrest. The prosecutor has to connect enough dots to connect the impairment with alcohol or drugs. If there is a an odor, a positive preliminary breath test result, and some issues during initial investigation or DUI investigation, that job of connecting the dots is easy.
After an arrest for DUI, most agencies will either use a machine that uses your breath to calculate your BAC (much more technical than the PBT) or conduct a blood draw. I had one case where a urine sample was collected instead, though that is uncommon in DUI unless there is something weird going on. As long as the final result is high enough above .08% BAC (to account for any margin of error in testing), that creates a strong basis to pursue the two most basic DUI charges. With a result above .15% BAC or .20% BAC, there are additional charges that can be pursued. Defense experts would often give their opinions about the testing process or the way the particular lab operated, though that was rarely successful (and the experts that knew about the testing process used to work at similar labs testing in the same way). As long as there was nothing out of the ordinary with the testing, the prosecutor will be confident in the result and treat your case accordingly.
While it may seem easy to get arrested for DUI, there are also a lot a lot of opportunities for the government agencies to make mistakes. What if the initial stop was not actually justified? What if the officer could not actually explain why he or she detained you? What if you later learn that the officer accidently used an alcohol-based wipe to sanitize your arm before the blood draw?
These are things that have happened recently in Arizona. There are many defenses that may help you in your case. For more, click here.
Call us at (480) 545 – 0700 and we can evaluate your options. Let’s see if we can make the prosecutor a little less enthusiastic about prosecuting your case.
Acquitting Arizonans Since 1987