Frequently Asked Questions
1. What do police officers look for when searching
for drunk drivers on the highways?
The following is a list of symptoms in descending order of probability
that the person observed is driving while intoxicated. The list
is based upon research conducted by the National Highway Traffic
Administration:
- (1) Turning with a wide radius
- (2) Straddling center of lane marker
- (3) "Appearing to be drunk"
- (4) Almost striking object or vehicle
- (5) Weaving
- (6) Driving on other than designated highway
- (7) Swerving
- (8) Speed more than 10 mph below limit
- (9) Stopping without cause in traffic lane
- (10) Following too closely
- (11) Drifting
- (12) Tires on center or lane marker
- (13) Braking erratically
- (14) Driving into opposing or crossing traffic
- (15) Signalling inconsistent with driving actions
- (16) Slow response to traffic signals
- (17) Stopping inappropriately (other than in lane)
- (18) Turning abruptly or illegally
- (19) Accelerating or decelerating rapidly
- (20) Headlights off
Speeding, incidentally, is not a symptom of DWI; because of quicker
judgment and reflexes, it may indicate sobriety.
Back to the top
2. If I'm stopped by a police officer and he asks
me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions.
A polite "I would like to speak with an attorney before I answer
any questions" is a good reply. On the other hand, admitting that
you had one or two beers is not incriminating: it is not sufficient
to cause intoxication -- and it may explain the odor of alcohol
on the breath.
Back to the top
3. Do I have a right to an attorney when I'm stopped
by an officer and asked to take a field sobriety test?
No. However, you are not required by Missouri law to submit to
field sobriety exercises. A polite "I would like to consult with
an attorney before agreeing to take any field test" is a good answer.
Back to the top
4. What is the officer looking for during the
initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies
are:
- (1) Flushed face
- (2) Red, watery, glassy and/or bloodshot eyes
- (3) Odor of alcohol on breath
- (4) Slurred speech
- (5) Fumbling with wallet trying to get license
- (6) Failure to comprehend the officer's questions
- (7) Staggering when exiting vehicle
- (8) Swaying/instability on feet
- (9) Leaning on car for support
- (10) Combative, argumentative, jovial or other "inappropriate"
attitude
- (11) Soiled, rumpled, disorderly clothing
- (12) Stumbling while walking
- (13) Disorientation as to time and place
- (14) Inability to follow directions
Back to the top
5. Why did the officer make me follow a penlight
with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test, a relatively recent
development in DWI investigation. The officer attempts to estimate
the angle at which the eye begins to jerk ("nystagmus" is medical
jargon for a distinctive eye oscillation); if this occurs sooner
than 45 degrees, it theoretically indicates a blood-alcohol concentration
over .05%. The smoothness of the eye's tracking the penlight (or
finger or pencil) is also a factor, as is the type of jerking when
the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of
different problems, not the least of which is the non-medically
trained officer's ability to recognize nystagmus and estimate the
angle of onset. Because of this, and the fact that the test is not
accepted by the medical community, it is not admissible as evidence
in many states; it continues, however, to be widely used by law
enforcement, and is admissible evidence in Missouri.
Back to the top
6. Should I agree to take a chemical test? What
happens if I don't?
The consequences of refusing to submit to a blood, breath or urine
test varies according to the state. Generally, there are two adverse
results:
(1) Your driver's license will be revoked for one year. This
may be true even if you are found not guilty of the DWI charge.
(2) The fact of refusal can be introduced into evidence as "consciousness
of guilt". Of course, the defense is free to offer other reasons
for the refusal.
Thus, the decision is one of weighing the likelihood of a high
blood-alcohol reading against the consequences for refusing. You
should request the opportunity to consult with a lawyer before making
this decision. In Missouri, you must be allowed 20 minutes to call
an attorney.
Back to the top
7. Do I have a choice of chemical tests?
No.
Back to the top
8. The officer never gave me a "Miranda" warning:
Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after
he arrests you. Often, however, he does not. The only consequence
is that the prosecution cannot use any of your answers to questions
asked by the police after the arrest.
Of more consequence in most cases is the failure to advise you
of the state's "implied consent" law - that is, your legal obligation
to take a chemical test and the results if you refuse. This can
affect the suspension of your license.
Back to the top
9. Can I represent myself? What can a lawyer do
for me?
You can represent yourself -- although it is not a good idea. "Drunk
driving" is a very complex field with increasingly harsh consequences.
There is a minefield of complicated procedural, evidentiary, constitutional,
sentencing and administrative license issues.
What can a lawyer do? Nothing (or worse) if he is not qualified
in this highly specialized field -- no more than a family doctor
could help with brain surgery. A qualified attorney, however, can
review the case for defects, suppress unlawfully obtained or inadmissible
evidence, compel discovery of such things as calibration and maintenance
records for the breath machine, have blood samples independently
analyzed, negotiate for a lesser charge or reduced sentence, obtain
expert witnesses for trial, contest the administrative license suspension,
etc.
Back to the top
10. How can I find a qualified drunk driving lawyer?
The best way to find a good DUI/DWI lawyer is by reputation. There
are a few attorneys who have national reputations; they, of course,
are expensive. Thus, the best approach is to ask other attorneys
in the jurisdiction: Who is the best in the area? If you do not
know any attorneys, go to the local courthouse and ask bailiffs,
clerks and public defenders: Who would THEY go to if arrested for
drunk driving?
Contrary to popular belief, it is not a wise idea to obtain a referral
from the local Bar association or referral service. There are rarely
any qualifications required for an attorney to be on a referral
list; he usually only has to ask to be placed on it. When you call,
you are simply given the next name on that list.
An excellent indication of quality and experience is membership
in the National College for DUI Defense.
Completion of that organization's intensive three-day annual summer
seminar as conducted at Harvard Law School, Atlanta, Georgia, (Executive Director:
Adriana Cameron, (404) 853-5080), is another clear sign of expertise.
When you meet with the attorney, make sure of three things:
- (1) He has extensive experience in DUI/DWI litigation;
- (2) He has a reputation for going to trial in appropriate cases,
rather than just "copping out" his clients; and
- (3) The financial terms of representation are clear.
Back to the top
11. What will it cost to get a lawyer?
This varies, of course, by the reputation and experience of the
lawyer and by the geographic location. As with doctors, generally,
the more skilled the attorney and the larger the city, the higher
the fee. A related factor is the amount of time a lawyer devotes
to his cases: the better lawyers take fewer clients, spending more
hours on each.
The range of fees is huge. A general practitioner in a small community
may charge only $300; a DUI specialist with a national reputation
may charge up to $15,000 or more, depending on the facts. In addition,
the fee may vary by such other factors as:
- (1) Is the offense a misdemeanor or felony?
- (2) The fee may or may not include trial or appeals.
- (3) Administrative license suspension procedures may also be
extra.
- (4) The lawyer may charge a comprehensive fixed fee, or he may
ask for a retainer in advance -- to be applied against hourly
charges.
- (5) Costs such as expert witness fees, independent blood analysis,
service of subpoenas, etc., may be extra.
Whatever the fee quoted, you can ask for a written agreement. And
make sure you understand all the terms.
Back to the top
12. What is a "rising BAC defense"?
It is unlawful to have an excessive blood-alcohol concentration
(BAC) at the time of DRIVING -- not at the time of being TESTED.
Since it takes between 30 minutes and 3 hours for alcohol to be
absorbed into the system, an individual's BAC may continue to rise
for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood,
breath or urine test is given to the suspect. Assume that the result
is .12%. If the suspect has continued to absorb alcohol since he
was stopped, his BAC at the time he was driving may have been only
.08%. In other words, the test result shows a blood-alcohol concentration
above the legal limit -- but his actual BAC AT THE TIME OF DRIVING
was below.
Back to the top
13. What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth
or esophagus. If this is present during a breath test, then the
results will be falsely high. This is because the breath machine
assumes that the breath is from the lungs; for complex physiological
reasons, its internal computer multiplies the amount of alcohol
by 2100. Thus, even a tiny amount of alcohol breathed directly into
the machine from the mouth or throat rather than from the lungs
can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccupping
or vomiting within 20 minutes before taking the test can bring vapor
from alcoholic beverages still in the stomach up into the mouth
and throat. Taking a breath freshener can send a machine's reading
way up (such products as Binaca and Listerine have alcohol in them);
cough syrups and other products also contain alcohol. Dental bridges
and dental caps can trap alcohol. Blood in the mouth from an injury
is yet another source of inaccurate breath test results: breathed
into the mouthpiece, any alcohol in the blood will be multiplied
2100 times. A chronic "reflux" condition from gastric distress or
a hiatal hernia can cause elevated BAC readings.
Back to the top
14. What defenses are there in a DWI case?
Potential defenses in a given drunk driving case are almost limitless
due to the complexities of the offense. Roughly speaking, however,
the majority can be broken down into the following areas:
(1) Driving. Intoxication is not enough: the prosecution must
also prove that the defendant was driving. This may be difficult
if, as in the case of accidents, there are no witnesses to his
being the driver of the vehicle.
(2) Probable cause. Evidence in a criminal case will be suppressed
if the officer did not have legal cause to (a) stop, (b) detain,
and (c) arrest. Sobriety roadblocks present particularly complex
issues.
(3) Miranda. Incriminating statements may be suppressed if warnings
were not given at the appropriate time.
(4) Implied consent warnings. If the officer did not advise you
of the consequences of refusing to take a chemical test, or gave
it incorrectly, this may affect admissibility of the test results
-- as well as the license suspension imposed by the motor vehicle
department.
(5) "Under the influence". The officer's observations and opinions
as to intoxication can be questioned -- the circumstances under
which the field sobriety tests were given, for example, or the
subjective (and predisposed) nature of what the officer considers
as "failing". Also, witnesses can testify that you appeared to
be sober.
(6) Blood-alcohol concentration. There exists a wide range of
potential problems with blood, breath or urine testing. "Non-specific"
analysis, for example: most breath machines will register many
chemical compounds found on the human breath as alcohol. And breath
machines assume a 2100-to-1 ratio in converting alcohol in the
breath into alcohol in the blood; in fact, this ratio varies widely
from person to person (and within a person from one moment to
another). Radio frequency interference can result in inaccurate
readings. These and other defects in analysis can be brought out
in cross-examination of the state's expert witness, and/or the
defense can hire its own forensic chemist.
(7) Testing during the absorptive phase. The blood, breath or
urine test will be unreliable if done while you are still actively
absorbing alcohol (it takes 30 minutes to three hours to complete
absorption; this can be delayed if food is present in the stomach).
Thus, drinking "one for the road" can cause inaccurate test results.
(8) Retrograde extrapolation. This refers to the requirement
that the BAC be "related back" in time from the test to the driving.
Again, a number of complex physiological problems are involved
here.
(9) Regulation of blood-alcohol testing. The prosecution must
prove that the blood, breath or urine test complied with state
requirements as to calibration, maintenance, etc.
(10) License suspension hearings. A number of issues can be raised
in the context of an administrative hearing before the state's
Department of Revenue.
These Frequently Asked Questions were originally
written by Lawrence Taylor, Esq. Mr. Taylor is an attorney in
California. Visit his web site at http://www.duicenter.com/
