Drunk driving is a serious offense, resulting in serious punishment and onerous restriction of driving privileges. If you have been arrested for driving under the influence, understanding your legal rights is critical. The law offers protection from unlawful searches and seizures, as well as other strict requirements that law enforcement must follow. Having experiences legal counsel will ensure your legal rights are preserved.
Most arrests for drunk driving occur after a traffic stop. The officer initiates a traffic stop, detects signs of intoxication, conducts field sobriety tests, and typically concludes with a preliminary breath test (“PBT”). If the driver has consumed enough alcohol that a PBT demonstrates his or her blood alcohol content (“BAC”) is over the legal limit, the officer will arrest the driver for drunk driving. Upon reaching the police station, the driver will be subjected to additional breath tests, using more sophisticated equipment called a DataMaster.
The Fourth Amendment requires a police officer have a lawful basis for initiating a traffic stop—law enforcement is forbidden from simply stopping people to investigate. The most common basis for initiating a stop is where the officer has either (1) personally witnessed a traffic violation; or (2) reasonably believes the driver is engaged in criminal activity. Each of these bases have different legal standards.
In Whren v United States, 517 US 806 (1996), the United States Supreme Court held that an officer must have ‘probable cause’ to believe a driver has committed a traffic violation in order to perform a lawful stop (seizure). Courts have generally avoided defining probable cause, stating that it is a commonsense phrase that is hard to define legally. A general definition describes it as "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed." Brinegar v United States, 338 US 160 (1949). As a practical matter, probable cause in this context generally means that officer personally witnessed the traffic violation. Notably, anonymous tips regarding traffic violations are insufficient to establish probable cause.
This stands in contrast to the second basis, which requires ‘reasonable suspicion’ that criminal activity is afoot. The burden of establishing reasonable suspicion is lower than probable cause. It requires that an officer have a reasonable belief, based upon articulable facts that criminal activity is afoot. The doctrine was the subject of Terry v Ohio, 392 US 1 (1968), where the Supreme Court held that a person may be briefly stopped and detained if a police officer has a reasonable suspicion that the person has been involved in activity constituting a punishable crime.
A skilled drunk driving attorney understands these standards and will review all evidence available to determine whether the stop was lawful. If a Court finds the stop unlawful, all evidence gathered after the stop is inadmissible, and absent unusual circumstances, the case is dismissed.
Fortunately, most police cruisers have dashcams, providing video evidence of the drive’s conduct preceding the stop. If the video does not show a traffic violations or indicia of criminal activity, the driver has a strong case for dismissal. More frequently, however, the driver makes a minor mistake, such as briefly crossing the fog line while rounding a bend. This is where a skilled drunk driving attorney can really make a difference. After researching case law, the attorney will prepare a legal brief arguing why the minor mistake was insufficient to serve as the basis for a traffic stop.
Another way to defend against a charge of drunk driving is to thoroughly review the circumstances surrounding the administration of the DataMaster test. Upon arrival at the jail or police station, the arresting officer will place you in an area where you can be monitored. The officer must maintain continuous observation for 15 minutes prior to administering the test. This is to ensure you haven't eaten anything, placed anything in your mouth, vomited, or done anything else that could impact the test results. After the first sample is analyzed, the officer must complete a second test, but only after an additional 15 minute observation period concludes. This process is almost always recorded on video--reviewing the DataMaster video will sometimes reveal that less than 15 minutes have passed, the officer left to use the bathroom, or any other of a hundred reasons the period was not honored. Where the DataMaster rules are not followed, the integrity of the test, and its admissibility as evidence against you, it severely compromised. It should be noted that the PBT administered in the field is 100% inadmissible in court. If the DataMaster results are tossed out of the proceeding, the only evidence remaining is the observations of the officer, which are typically insufficient to establish a BAC over the legal limit.
Another issue with the DataMaster is the complicated testing regime which is required to maintain the accuracy of the machine. The DataMaster must be tested weekly and serviced monthly. The qualifications of the individuals performing the tests are also critically important. Where the tests have not been completed on schedule, or where the individual servicing the DataMaster does not have the required credentials, the test results are compromised.
Drunk driving cases can be far more complicated than the simple examples above. Third-party witnesses, serial driving errors of a minor nature, extended timelines, previous history of the parties, etc. are just a few examples of additional factors to be considered. An experienced drunk driving attorney will identify unlawful stops, challenge the integrity of the measurement devices, and fight to make sure your rights are not trampled.