Almost All DWI Follow A Simple Pattern:
2. Field Sobriety Test
4. Blood/Breath Test Request
5. Blood/Breath Test
1. The Stop
Bad Stop = Dismissal
The first stop in evaluating a DWI is to determine whether or not you were lawfully stopped or detained by the police. If the stop isn’t legal, then the State can’t present any of the evidence against you.
Most DWIs start when you are stopped by the police for a traffic violation. As careful of a driving as you may be, the police begin stopped people at night for a lot more than just speeding. Many DWI stops start when people are pulled over for “no license plate light”. Do you check your license plate light every time your drive?
Suspicion of Driving While Intoxicated
Many DWIs start because the police claim to have a “reasonable suspicion” that you were driving while intoxicated. Reasonable suspicion requires more than suspicion or “hunch.” One example is that merely weaving inside your lane is almost always insufficient for the police to stop someone.
Sometimes a DWI can start when the police pull over to help someone. This can be to check on someone fixing a flat to checking on someone asleep in their car on the side of the road. The most important thing to review in these types of cases is the State’s ability to prove if you drove the car and if you were intoxicated at the time. If the only evidence they have is that you are present with the car, they cannot prove your drove. They will also have to prove that when you drove you were intoxicated but how can they prove when you drove? These cases can be very difficult for the State to prove.
2. The “Test”
A police officer deciding that you are intoxicated is clearly a subjective, personal opinion. They have probably already made up their mind in the first few seconds of talking with you. So now they need to convince the jury, right? In comes the standard field sobriety tests.
“Field sobriety tests” sound good but even the phrase is misleading and is designed to give it more credibility than it deserves. Field sobriety tests are not actual “tests” at all in the normal sense of the word. There is no opportunity to prepare for the tests, there is no explanation of expectations and if you pass or fail is left to the opinion of the officer.
The Field Sobriety Test
Even if you are sober, it may be in your interests to refuse to take a field test BUT refusing to play along is called a “total refusal”. You can read more about “total refusals” below. The standardized field sobriety tests include:
horizontal gaze nystagmus
- , which involves following an object (usually a pen) with your eyes as the officer moves back and forth in front of you. The officer will be watching for signs of nystagmus. Nystagmus is an involuntary jerking of the eyes that can be caused by a depressant such as alcohol. Unfortunately, there are many other causes of nystagmus but those reasons will be mostly ignored by the police officer. A
one-leg stand test
- , where a driver will be asked to stand in place with both arms remaining at his or her sides, and one foot slightly elevated approximately six inches off the ground. The officer is evaluating your ability to balance.The
walk and turn test
- , in which a driver will walk forward with his or her feet heel to toe. The driver must then turn around and walk back. This test includes a fair amount of specific instructions that will be strictly graded.
Reese has probably reviewed thousands of DWI videos and believes he has never seen anyone perform this test perfectly.The State will play the in-car video of this performance for the jury while the police officer explains that it isn’t a pass/fail test but in his opinion, you failed. Doesn’t seem very fair but the good news is that an experienced defense attorney as at your side who gets to conduct a cross examination of the officer.
Portable Breath Tests (PBTs)
State Troopers tend to be the only police officers that have portable breath tests machines (PBTs). A PBT is a handheld device that when blow into, tests the alcohol concentration in the driver’s breath. While not admissible in court because they do work well, the officer is legally allowed to use it in deciding on whether to make an arrest. Yet another example of the unfair process that must be pointed out to the jury.
A “total refusal” is the phrase used by the police and prosecutors when a driver decides to not play along. Generally, this has to do with a driver refusing to participate in the field sobriety tests. A “total refusal” will often times get you arrested no matter what. If you do play along, these tests are usually difficult for most people to take, even if they were not drinking.
The law provides that the smell of alcohol alone is not enough to arrest someone of DWI. What would happen if, after being stopped by the police, a driver handed over their driver’s license and insurance but refused to do or say anything else? What if the only thing a driver said to the officer was, “I am not going to answer any of your questions until I can speak with an attorney”? In that case, is the smell of alcohol the only proof of the officer has? If so, the law says that isn’t enough but remember that a total refusal will usually get a driver arrested.
3. The Arrest
Once the police have come to the opinion that you have lost the normal use of your physical or mental capacity, the driver is arrested.
4. The Additional Test “Request”
After an arrest, the police officer will request that a driver take a blood or breath test. Which test to offer is up to the police officer.
Most people have heard and believe that you should always refuse. If you refuse, your driver’s license is “automatically” suspended. Reese prefers to say it’s subject* to being suspended. After a refusal, the officer can (and probably will) obtain a search warrant to forcible take a blood sample.