Every DWI Arrest has 4 distinct phases- a problem with any of them could result in a drunk driving conviction: traffic stop and interrogation; conducting the three field sobriety tests; reviewing the DWI questionnaire and offering the person suspected of drunk driving the option of taking the "breath test." It is vitally important that your DWI criminal defense lawyer be skilled at examining all of these 4 components to maximizing your chances of avoiding a DWI conviction. So, with that said, let's look at each of these 4 stages and how an experienced DWI lawyer can help you with your drunk driving arrest. Successfully challenging the state's DWI case at any of these stages may justify having the evidence in the case thrown out of court or, if allowed, justify an acquittal exonerating you of a drunk driving offense.
DWI Traffic Stop
The police patrol the highways and hangout in parking lots near popular bars in order to locate suspected drunk drivers. The police cannot simply detain or arrest someone coming out of a bar. They must observe them committing a minor traffic infraction so they can begin their drunk driving investigation. It is not unusual for many DWI investigations to begin with someone "touching the centerline" of the highway or failing to use their turn signal for a routine lane change. Fortunately, many police cars have video cameras that record the events leading up to the traffic stop. A good criminal defense attorney can review the video recording to determine if, in fact, the police officer can correctly establish a traffic violation. If the officer is wrong, your criminal defense attorney can file a motion to suppress the evidence and argue that your case should be thrown out of court because the police did not have probable cause to arrest you and also argue that any evidence of your intoxication should be suppressed because this is based upon an unlawful arrest.
Once you are pulled over onto the side of the road, the police officer will use the time to investigate and issue a traffic citation to evaluate you for drunk driving. You may be ordered out of your car so the police officer can observe you exiting the car and walking towards him. He is going to look to see if you sway while walking and whether you need to use your car for balance. If either is observed, those are clues suggesting impairment. Upon contacting you, the police will ask you routine questions of where you are going and whether you are aware why he pulled you over. The police officer will use this as an opportunity to observe your speech to see if it is normal or if it is slurred. They will also be checking to see whether your eyes are blood shot and whether they can smell alcohol on your breath. This is interesting because alcohol doesn't have a "smell", many things can lead to "blood shot eyes", and some people have speech patterns that may seem "slurred" normally. Again, this is where video is important. A good DWI attorney can begin to challenge the police officer's credibility by reviewing the video and contesting his observations of swaying and the manner of speech. Additionally, a good criminal defense trial lawyer can emphasize all of the things that you've done correctly to show that you are not impaired and should not be suspected of drunk driving.
At this point, if the officer believes you are drunk driving, he will begin a formal investigation by asking you to perform the three field sobriety tests.
The 3 DWI Field Sobriety Tests
The officer will ask you to participate in some standard field sobriety tests to determine whether you are able to drive. These two of these tests are designed for failure and are split-attention tests. None of the three tests have scores to correlate to particular blood-alcohol content. In other words, the same tests used years ago to determine whether you were drunk when a BAC% of 0.10 was the demarcation line is used today when a BAC% of 0.08% in the new standard and will be used in years to come when efforts to reduce the presumption level of intoxication becomes a BAC% of 0.05%. There are 3 standard field sobriety tests: the nystagmus test, the walk and turn test, and the one legged stand test. Placing your finger to your nose or reciting the alphabet backwards are not standard tests and are of no evidentiary value.
The nystagmus tests tracks the movements of your pupils. This can be called "the pen test." The officer is looking to see how your pupils track and object and how they act at the point of "maximum deviation" or how far they can follow an object before you need to turn your head. In a normal, and sober, person the pupil will move, or "track" the object it is following smoothly and can hold still at maximum deviation. The police are looking to see if the pupil "jerks" or acts erratically. The horizontal nystagmus will be conducted for those suspected of driving drunk on alcohol. Only a qualified DWI attorney can tell if this test is done properly. The police must make so many "passes" with each eye and hold the object at a certain height and distance away from the suspected drunk driver. In a perfect world, your criminal defense lawyer can critique the officer's administration of the test by relying upon the video. When video is lacking, he can critique the officer in court by asking him how he performs the test and even have him demonstrate his technique during cross-examination. There are also known medical conditions that can affect nystagmus. A criminal defense attorney experienced with litigating DWI cases can question the officer about these conditions and present evidence of your affliction at trial. In all likelihood, the officer failed to ask.
The next two tests are split-activity tests meaning they require you to perform a physical activity while, at the same time, require you to engage in a mental task. Do you remember the game as a child where you walk, while chewing gum and rubbing your tummy? It is hard to do. These tests are designed for failure. One of the tests is a one leg stand. In this test, you need to lift one leg up 6 inches and hold it for a period of time. You may be asked to count. The next test is the walk and turn. In this test you are going to walk 9 steps placing your heel in front of your toe for 9 steps, do a regimented turn, and walk back for 9 more steps. The police are looking to see if you can follow directions, need help with balancing and can count while doing the test. These are hard tests to do sober and even the police officer will admit he is trained to do them himself. An experienced DWI lawyer can review the video and question the officer to see if the instructions given to the suspected drunk driver were court and can examine whether the officer demonstrated the tests correctly. A good DWI lawyer will also be in a position to demonstrate for the judge what you did correctly on these tests as well as provide evidence of any physical condition you may have that would make these tests an inaccurate measure of your sobriety.
In all likelihood, anyone pulled over on the side of the road will not do well on the three field sobriety tests. At this point, the officer will now formally go over with you the DWI questionnaire. He probably asked you many these questions already.
THE DWI Questionnaire
This is a crucial piece of the case and can turn an otherwise defensible case into a conviction. Make no mistake, this is an interrogation. The officer is going to ask you questions that will assist in proving the case for drunk driving. You will be asked if you were operating, i.e. driving, the car. You will be asked if you were drinking and, if so, how much and over what timeframe. You will be asked where you are coming from and if you have any medical conditions they need to know about. It is not uncommon for drivers, who may have done well on the field sobriety tests, to advise that they're coming from a bar where they've consumed 4 beers and 2 shots of alcohol. Many clients will say that they were not Mirandized or advised of their rights beforehand. Unfortunately, the Miranda warnings may be inapplicable to this stage of the investigation. Nevertheless, a skilled defense lawyer can mitigate damage caused by incriminating answers. This is a very fact specific analysis that is hard to generalize in a short article. But as a general rule, even devastating answers, can be placed into their proper context if other aspects of the case are defensible.
After gaining their admissions, the officer will now move into sealing the deal so to speak and advise you that he considers you too impaired to drive and offers you the opportunity to show otherwise if you can pass the "breath test".
The DWI Breath Test
The final component to a DWI investigation is the submission to the breath test. Here, the driver will blow into a tube connected to an electronic device that is capable of measuring the amount of alcohol in your blood based upon the amount of alcohol particles transmitted in your breath. Most states require drivers to submit to this test as a condition of obtaining a driver's license and heavily penalize those who refuse to take the test by mandating lengthy suspensions of the driver's driving privileges if they refuse to take the test. These states are called implied consent states. There are a variety of defenses to an adverse breath test result. Some of these defenses are procedural, in other words, making sure the machine is properly calibrated, the officer properly trained and certified to give the test, and the proper procedures were followed in administering the test. Unfortunately, few of these tests are recorded since the machine is at the sheriff's station or possibly even the local jail. Additionally, there are plenty of medical conditions that can cause a false result on the machine that a DWI lawyer can investigate. Lastly, depending upon your results, some DWI cases can be won by hiring an expert who can estimate the level of impairment at the time of driving based upon the level of impairment at the time of the test.
About the Author:
If you've been arrested for drunk driving and provided a breath sample, you need to contact an experienced DWI attorney. A qualified lawyer will be able to review the legitimacy of the traffic stop and determine whether the police administered the field sobriety and breathalyzer tests correctly. A DWI/DUI conviction can have many civil consequences so this isn't something to take lightly. Call Andre Belanger to set up a time to review your case. Andre's handled nearly 200 criminal trials during his tenure as a trial lawyer. Andre's office is located in Baton Rouge and he handles DWI/DUI cases throughout Louisiana and Mississippi. You can learn more about his firm at http://www.manassehandgill.com