The Phases of DUI
Detection by Law Enforcement
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. 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." 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 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 is 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.
If an attorney does not understand all of these areas of law and evidence
then a complete defense cannot be built and the defendant's liberty is at
greater risk! Not only has Eric J. Dirga defended individuals charged with
these offenses, he has appealed many such cases successfully AND is one of only
eight central Florida attorneys to have taken the Intoxilyzer 5000 Breath Test Operator course
in 1998. Such detailed knowledge of the breath test machine is invaluable
at trial.
Submitting to the Breath Test
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