DUI

Delectable Details of the DUI Detention

Alright, so it’s a bit of a stretch to say that any part of a DUI stop is delectable – or even palatable – but still, there are things you should know about them just in case you find yourself in one.  After all, police officers spend years in the academy studying for these very stops, just to make sure that their performances are flawless.  Why shouldn’t you have the same advantage, or at the very least, know what to expect?

 

               Phase 1) The Stop

 

                It may seem pretty obvious that the traffic stop is the first step in a DUI, but aside from that, it’s also one of the most critical parts.  So much of a case hinges on what happens during a stop that, if the rules aren’t followed exactly, you just might have what you need to get the entire case against you thrown out.

 

                It’s called the Fourth Amendment – you’re probably familiar with it.  In case you aren’t, it’s the one that protects you from “unreasonable searches and seizures.”  In other words, a police officer is constitutionally forbidden from stopping you without what the courts refer to as “reasonable suspicion” that you have committed a crime.  If the officer stops you without that reasonable suspicion, then it gives your attorney some serious ammo in the courtroom.  Your attorney can argue that the stop was illegal, and that all evidence that came from that stop should be thrown out of the case.  Even if that doesn’t get the whole case against you dropped, it can be great incentive for a prosecutor to offer you a better deal.

 

                Ok, so then what is reasonable suspicion?  That one is a bit tricky to answer – judges have a lot of different opinions on it.  Suffice it to say that, if either side questions the stop, the prosecutor will start looking up cases where judges said stops like yours are legal, while your attorney will be looking for cases where judges said those stops aren’t.  Then it’s up to the judge to decide (so make sure you have a convincing attorney).

 

                The important thing to remember at this point is that you’ve been stopped: whether the officer had reasonable suspicion to stop you in the first place does not matter right now.  That has to be decided in court.  Whatever the reason, the officer has stopped you, and now he’s coming to let you know why.  In fact, that’s the law – the officer has to let you know why he stopped you, do what the law requires him to do, and then let you go (unless of course he’s got a reason to arrest you), and he has to do it all as quickly as possible.

 

               Phase 2) The Initial Investigation

 

                Now, if yours is a situation like most, the officer probably stopped you for some traffic violation or another, which of course he’s empowered by law to do.  The key now is the investigation – as he’s collecting your insurance information and license, the officer will almost certainly be looking for any indication that you might be driving under the influence.  That doesn’t necessarily mean driving with a blood-alcohol level over .08, either.  You can get a DUI for driving with any amount of alcohol in your blood, so long as the police officer thinks he can prove that it is impairing your ability to drive safely.  In fact, you can get a DUI without driving at all – sitting or even sleeping in your car with the keys in your pocket while drunk can still land you a DUI.

 

                So what will the officer be looking for, specifically?  There are quite a few indicators, but some of the common ones are the smell of alcohol on your breath, empty cans or bottles in the car, whether or not your speech is slurred and how your eyes react to light (and you thought they just shined that light in your eyes to be annoying).  Typically cops like to see as many of these indicators as they can before asking you to get out of the vehicle, but even one can be enough to establish reasonable suspicion to investigate the possibility that you’re too drunk to be driving.

 

               Phase 3) The Field Sobriety Tests

 

                Since this article is all about the DUI stop, we’re just going to assume that the officer has asked you out of your vehicle now.  While cops can technically skip this step if they think they can get a warrant to have your blood tested without them, most of the time they are used.  It’s important to remember that, even if it might be unlikely at this point, you can still be let go if the cop doesn’t find more reason to hold you.  So without further ado, let’s get to the tests!

 

  1.         Horizontal Gaze Nystagmus Also known as the HGN, in this test the officer will be focusing on your eyes.  Typically, they’ll use a pen or their finger, hold it up in front of your face, and tell you to follow it with your eyes.  Since alcohol tends to make it difficult to keep your eyes steady, the officer is watching to see if your eyes jerk around while following.
  2.        One Leg Stand.   This test is pretty straightforward.  The officer will ask you to put your hands to your side and hold one of your feet up until he tells you otherwise.  But while you’re standing there feeling a bit silly, the officer is going to be watching for a couple things, mostly having to do with balance.  He’ll be watching to see if you hop, if you raise your arms up, if you sway around, and of course, if you put your foot down before he says you can.
  3.        Walk & Turn.  Probably the most tedious of the tests, the officer will ask you to walk a straight line out to a certain number of steps (typically along one of the lines painted on the street), do a neat little turn, and then returning to where you started.  The reason this test is tedious is mostly because there are a lot of things that can go wrong.  Moving out of the starting position after you’ve gotten into it, starting the walk before he tells you to, not keeping your heel-toe distance less than half an inch apart, raising your arms higher than 6 inches, miscounting your steps, messing up the turn, and stopping the walk before you get back to where you started are all things that can flag you as too drunk to be driving.

               

                Well, at this point, the fun is over, and you’ve either been released (probably with a bit of a lump in your throat), or you’re sitting handcuffed in the cop’s car while he is out searching yours.  If that is the case, you’re probably looking at a night in the county lockup, but there is still one more thing you should know.

 

               Phase 4) The Admonition

 

                If you have been handcuffed, you are under arrest, and odds are that you are going to be charged with a DUI now.  You should’ve been read your Miranda Rights as you were being cuffed, but that is separate and apart from what comes next – the admonition.  And it’ll probably start like this:

 

                You’ll be sitting in the back seat, looking through the divider at the back of the cop’s head, and he’ll have a little piece of paper out in front of him.  He’ll be reading word for word, telling you that you’ve been arrested for driving under the influence, and that as a result of this arrest, your license may be suspended.  More significantly, you’ll be told that you are going to be required to submit to a chemical test.  If you refuse to take the test, then your license will be automatically suspended for six months.

 

                By now, you know that nothing in this article is ever italicized unless it’s important, and it is really, really important that you understand this: if you say you are going to refuse the test (or just exercise your right to remain silent), your license will be suspended.  No ifs, ands or buts about it.  The Utah Driver License Division has made it a rule that, once you’re charged with a DUI, you must undergo a chemical test to determine exactly how drunk you are, or they’ll just suspend your license by default.  Even if the DUI case gets dropped later, or if the chemical test ends up showing that you are completely sober, it will be very difficult to get the DLD to change its mind about this decision, if not altogether impossible.  And even if you refuse to take the test, by now you have already been arrested, and the cop will almost certainly just get a judge to sign a warrant which will force you to take the test, so you’ll have basically given up your license for no reason.

 

                One more thing to know about the chemical test – this is not the same thing as the PBT (Portable Breathalyzer Test), which the officer may have had you take during the field sobrieties.  The PBT is actually not very dependable, and the results aren’t even allowed in court.  The chemical test the cop asks for during the admonition, on the other hand, is a much more specific test, and one which is admissible.  So don’t be confused if the officer asks you to take a chemical test when you’ve already been tested by the PBT – they aren’t the same thing.

 

                Obviously, nobody ever wants to get hit with a DUI, and of course nobody should be driving drunk.  But the risk is always there, and not just for drinkers.  Other recreational and even prescription drugs can get you caught in a DUI situation, as long as the officer believes you are too intoxicated to be safely operating a vehicle.  So educate yourself, learn what to expect, what the officer is expecting, and put some serious thought into which attorney you will want to hire.  And you should definitely hire one – the DUI will immediately put your license into jeopardy, and steps will be needed right away if you want to keep on driving.

 

Photo Courtesy of: Naypong@freedigitalphotos.net

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