 EVIDENCE
GATHERING
DRIVING PATTERNS
Q. What kind of driving patterns do police look
for when deciding to stop a car for a DUI investigation?
A. The National Highway Traffic Safety
Administration has conducted extensive study in their
effort to help law enforcement detect drunk drivers. They
have identified 20 driving patterns that are believed to
be consistent with driving under the influence:
- Turning with a wide radius
- Straddling center of lane marker
- Appearing to be drunk (based on posture, gestures, etc.)
- Almost striking object or vehicle
- Weaving
- Driving on other than designated highway
- Swerving
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Drifting
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
- Slow response to traffic signals
- Stopping inappropriately (other than in lane)
- Turning abruptly or illegally
- Accelerating or decelerating rapidly
- Driving with Headlights off
 NOTICE
- SPEEDING IS NOT ONE OF THE TOP TWENTY CLUES. Many
people arrested for DUI, DWI, or a related drinking and
driving charge are initially stopped for speeding. So long
as the other NHTSA clues, above, are not present, and the
stop is for speeding only, an experienced DUI lawyer will
be able to turn this into a positive. Put simply, it takes
greater care and skill to pilot a car going fast than it
does to pilot a car going slowly. A DUI defense lawyer
with experience handling drinking and driving cases will
be able to highlight this fact in the most effective way
possible for the judge or jury. It does bear mentioning
that many states do mandate enhanced punishment where a
person is found to be DUI or DWI, AND speeding above a
certain level, AND driving recklessly. Keep in mind that
speeding, in and of itself, it NOT reckless driving.
Again, a qualified DUI or DWI defense lawyer will know how
to successfully handle this issue.
If you or someone you care about has been arrested for
drunk driving, click
here to find a lawyer in your area.
STATEMENTS TO POLICE
Q. "I was stopped by the police, and asked a lot
of questions about what I drank and when I drank it. I was
never given Miranda rights. Did I make a mistake by
answering their questions? Will my case be thrown out for
not giving me my rights?
A. If you are stopped by the police, you are under no
obligation to talk to them, or answer their questions. You
are certainly under no obligation to help police build a
case against you, and this approach will help prevent them
from doing so.
One of the most common questions DUI defense lawyers
hear is
"I didn't get my Miranda rights; can my case be
dismissed?" Unfortunately, the answer is "No." However, it
may be possible to keep statements from coming into
evidence under certain circumstances.
Courts have determined that Miranda warnings need not
be read to a subject until there is "custodial
interrogation." This occurs where a person is not free to
terminate the encounter with law enforcement, AND where
law enforcement asks direct questions (or their functional
equivalent) which are designed to elicit an incriminating
response from the subject. Most of the time, the questions
(and answers) that turn out to be damaging to a person's
defense are questions that are asked prior to the
situation turning "custodial." As ridiculous as this may
sound to one who is stopped by the side of the road,
performing field sobriety sobriety tests at the request of
a uniformed officer (who also carries a gun), this stage
is an investigative detention that does not trigger the
need to Mirandize a subject.
RIGHT TO A LAWYER
Q. Can I talk to a lawyer before I go through
all these tests?
A. Every state has different laws, so it is
critical that you speak to a DUI or DWI defense lawyer in
your state to determine whether there is a right to
consult with a lawyer prior to taking either
Field
Sobriety Tests or a post-arrest
chemical test.
Whether or not the law in your state allows for
consultation with an attorney prior to taking the tests,
it is a good idea to politely ask for one at every turn.
If your case does go to trial, this type of evidence is
very powerful in front of a jury. If you are in a state
that does not allow persons accused of DUI, DWI, or other
drinking and driving related offenses to consult with
lawyers, you may have an opportunity to help change that
law.
If you've been charged with an alcohol-related offense,
one of our DUI LAWS attorneys can help. Click
here to find the lawyer nearest you.
EVIDENCE GATHERING
Q. If I've been stopped by police, what are they
looking for in deciding whether or not to arrest me for DUI?
A. There are four main categories that officers
look to when investigating a DUI or DWI case: driving
pattern, physical symptoms, field sobriety test
performance, and chemical test results.
Driving pattern clues are typically those outlined by
the National Highway Traffic Safety Administration (NHTSA)
in their study entitled "Detecting Drunk Drivers at
Night". They include problems with turning, weaving,
erratic braking, nearly striking objects, and others. Many
DUI or DWI investigations do not begin as a drinking and
driving investigation. They start as a typical traffic
stop, for some type of minor infraction that has no
relationship to drunk driving; it is only later, when
certain physical signs and symptoms are observed, that the
officer turns the investigation into a DUI stop.
Alcohol is a central nervous system depressant, and those
who consume enough of it generally exhibit certain signs.
Officers are (supposedly) trained to look for these signs.
Since the experts in the field universally agree that
alcohol causes mental impairment before any physical
impairment sets in, and since the phenomenon of tolerance
can mask physical symptoms, but not mental ones, officers
are particularly conscious of signs of mental impairment.
Every DUI arrest report will include commentary on the
driving pattern, the subject's response to the officer's
lights/siren, the subject's ability to park their car
properly, ability to get out their driver's license,
registration and insurance without fumbling for them,
ability to get out of the car without leaning on it for
support, their performance on field sobriety tests, and a
litany of physical symptoms (red/watery eyes, odor of
alcohol, attitude as cooperative or not, coordination
problems).
A skilled DUI defense lawyer will know just how to deal
with these supposed indicators of impairment. If you or
someone you care about has been arrested for drunk
driving, or a related offense,
please contact us at once
for help.
FIELD SOBRIETY TESTS
Q. How accurate are Field Sobriety Tests? What
are the police looking for?
A. These are not really tests at all; rather,
they are physical agility exercises that are subjective in
nature, and designed for the accused to fail.
Most people don't realize that these tests are
optional… and the officers who give them sure won't tell
you, but they are. You are perfectly free to politely
refuse to take the Field Sobriety Tests in their entirety.
These "tests" may include the following:
› Nystagmus
› Walk and Turn
› Standing on One Leg
› Finger to Nose
› The Rhomberg Balance test
Other Field Sobriety Tests include finger tapping,
hand clapping, counting backwards, or reciting or
writing the alphabet.
These are supposedly tests that are designed to check
"divided attention", a critical skill in operating a
motor vehicle. However, there are many people who, for
many innocent reasons, cannot perform these tests to the
officer's satisfaction, and pay the price with a drunk
driving arrest.
Preliminary Alcohol Screening Test (PAS Test): One of
the most dangerous Field Sobriety Tests is the
Preliminary Alcohol Screening test, also called the PAS
test. This is a portable
breath test to determine the
presence of alcohol. The officer, in most states, is
supposed to advise the suspect that the test is
voluntary. In practice, this does not always happen.
The most important thing to know about the Field
Sobriety Tests is that a skilled defense lawyer will
know how to handle them in court.
For further information about the proper
administration and scoring of Field Sobriety Tests, you
are welcome to contact any of our qualified DUI defense
lawyers for further information. Drunk driving is a
serious charge;
click here to find a well-qualified
lawyer to help.
MIRANDA WARNINGS
Q. The officer that arrested me never read me my
rights; can I get my case dismissed?
A. Unfortunately, an officer's failure to give
Miranda warnings don't mean the entire case will be
dismissed. Miranda warnings are supposed to protect the
accused from making incriminating statements that are
the product of custodial interrogations. Where the
Miranda warnings (including the right to remain silent,
advising that anything said can and will be used against
the person in court, the right to an attorney, and
advising that if someone can't afford an attorney, one
will be appointed) are not given, statements made while
in custody may be suppressed, but the case won't be
thrown out.
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