It really is not all that complicated. Every night officers from the various agencies that patrol Austin are out in full force looking for impaired driving. Most DWI arrests start from a simple traffic violation. You may have failed to single before changing lanes. You may have forgotten to turn your lights on. You may be lane straddling. All of these are traffic violations that often have innocent explanations, but they are the first clue an officer uses when trying to determine whether you are DWI. Statistically, speeding is the most common reason for a stop resulting in a DWI arrest, which stands to reason considering it is the most common violation that results in law enforcement contact period. In legal terms, in most cases, an officer has to have reasonable suspicion that there was a violation of the law before he or she can conduct a traffic stop.
Once the officer approaches the car, he or she is trained to look for tell tale signs of alcohol consumption. When I used to train law enforcement officers, I would tell them to take note of any clue that the person had been consuming alcohol. These clues are pretty obvious, but I will go over the biggies I see in almost every DWI police report. The officer often notes red and watery eyes or glassy eyes, the odor of alcohol, slurred speech, and difficulty obtaining identifying information like your license and insurance. The above is a non-exhaustive list, but it covers what I most frequently see in police reports. Incidentally, I have had the unique opportunity to observe DUI checkpoints and ride with DUI units in Orange County on many occasions, and I have personally observed close to 100 traffic stops that turned into a DUI investigation. It was rare that I saw all of the clues noted above, but later I would often see that the officer indicated each and every major clue he or she is trained to look for. Fortunately, in Austin, Texas most cars are equipped with audio and video recording devices to “keep the officer honest.”
Again, from a law enforcement training perspective, the police are building a case from the second they see you on the road. First, the officer is looking for driving clues. There are certain types of driving that is consistent with drivers who are impaired. The National Highway Traffic Safety Administration (NHTSA) has a slew of studies regarding driving clues (though I believe they use cues in the reports) for officers to look for that indicate possible impairment. What the officer observes driving wise is step one in building the State’s case. Step 2, obviously are the physical symptoms the officer observes after making contact with the driver of a vehicle.
A police officer with the California Highway Patrol that I used to routinely work with explained it this way. It is like building a house. The driving is the foundation. What you observe physically from the driver is the framing. The next step would be putting in the plumbing or whatever the hell you would do next when building a house. And the next step in a DWI investigation is the pre-Field Sobriety Tests (FSTs) questions.
Before conducting FSTs, an officer should make sure that you are a good candidate to perform the FSTs. The officer does this through a series of questions. While the officer is asking you questions to determine whether you are qualified to perform FSTs, he or she also tends to slip in a variety of incriminating questions that will later be used against you in your prosecution. Despite the fact the officer is asking incriminating questions, the Supreme Court in 1984 determined in Berkemer v. McCarty 468 U.S. 420 (1984) that road side questioning is not a custodial interrogation for purposes of Miranda. Interestingly, Berkemer involved one question. The Court in Berkemer stated that an officer may ask a “moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions.” Id, at 439 The confirming or dispelling the officer’s suspicions is where police officers have taken great advantage. The California Highway Patrol form at one time had 27 questions for officers to ask before administering FSTs. In Austin, the number of questions you will be asked depends on the officer.
This is the first time during a DWI investigation that you have control. Again, seemingly innocuous questions like, “[W]hen did you last eat?” can affect your case negatively. Obvious questions like what did you have to drink, how much did you have to drink, what time did you start drinking, and what time did you finish drinking, can bury you in a DWI case. IT IS IMPORTANT TO REMEMBER THAT YOU ARE NOT REQUIRED TO ANSWER THESE QUESTIONS. The best response when the officer begins asking pre-FST questions is, “I have been advised by an attorney that I do not have to answer these questions, and I am refusing to do so.”
Remember, the officer I told you about who used the building the house analogy in court? Well, you are taking away an important piece of the house by not answering these questions; thus, making it more difficult for the prosecution to obtain a conviction. People want to cooperate when they are placed in this position. First of all, most of us have a natural respect for police officers. Secondly, many folks assume that they are going to outsmart the cop and answer the questions in such a way that they think the officer will cut them loose. The truth be told, if you have been drinking and you have been pulled out of the car, the odds are you going to spend the night in jail whether you answer the questions or not. Police officers will tell you that this isn’t the case, but there is simply too much civil liability for an officer to cut someone loose who has been drinking.
The next part of the investigation is the Field Sobriety Tests (FSTs). I absolutely, positively, unequivocally, recommend that you do not do FSTs. Some defense attorneys would disagree with me on this point. Everyone is entitled to their opinion I suppose, but the risk of doing these tests far outweighs the reward. IT IS IMPORTANT TO REMEMBER THAT YOU ARE NOT REQUIRED TO DO THE FSTs. My advice is simple. Tell the police officer, “I have been advised by an attorney that these tests are voluntary, and I choose not to do them.” Again, using the house analogy, why give the officer another very important piece of the house?
In my next Blog, I will address the Field Sobriety Tests that are most commonly used in the field by police officers and what officers extrapolate from them.