The PROPER STEPS TO A DWI INVESTIGATION
Initial Phase of a DWI Investigation – All of us have seen a car that is all over the road suspected the driver is most likely drunk. Although there are many possible explanations for a car to be all over the road, the police will jump to the conclusion that the driver is drunk. In my time as a DWI defense attorney, I have seen almost every reason other than alcohol for a car to drive erratically:
Playing with the radio
One client dropped a lit cigar in his lap
Sexual acts from a frisky passenger
Gusting winds and a high profile vehicle
Lost on an unfamiliar road, at night, in the rain
Exhausted after a long day of work
One of my first jobs when dealing with a DWI case is to explain away any poor driving observations. Just because someone may have been drinking does not mean he is intoxicated, and it certainly does not mean any bad driving was the result of his drinking. As seen in the list above (which is only a few of the unlimited reasons a person could be distracted while driving), the focus must be on the real, non-alcohol related reason a person was driving poorly.
The first thing that a police officer is going to look for during a DWI investigation is a reason to pull someone over. These reasons range from speeding to failing to signal, but often in a DWI case it starts with weaving between lanes or touching the lane lines. These observations are treated differently by a police officer. For example, if a person is pulled over for something normal like speeding 10 or 15 miles per hour over the speed limit, that by itself does not lead to a suspicion of intoxication.
However, if someone is in a car accident or is weaving back and forth between lanes, then those observations are going to give rise to some suspicion of intoxication prior to the police officer ever coming into contact with the person behind the wheel.
Once the officer conducts the vehicle stop, he is going to walk up to the car, and when the window is rolled down, he is going to see if he can smell an odor of intoxicants. He is going to see if there is an odor coming from the vehicle, and observe how many people are in the vehicle. If there is only one person in the vehicle, and the police officer smells the odor of intoxicants, then the officer is going to attribute that odor of intoxicants to the driver. Either way, the officer is probably going to ask if the driver has been drinking.
It is important to understand that an officer has nothing to lose by asking the question, “Have you been drinking this evening?” It’s very easy for them to do. And if somebody admits to drinking, regardless of how much that person says they have had, the officer is going to ask them to step out of the vehicle for further investigation, usually for field sobriety tests.
That is why it is important that, if you have not been drinking, that you say, “No, I haven’t had anything to drink.” If an officer is told that you have had “just a few,” the officer is going to believe that you have been drinking, but he is not going to believe you had just a few. The police are going to believe that it is much more than what you said, because the typical response that the officer gets when he asks, “Have you been drinking?” is “Yes, I’ve had two beers.”
Other things police officers can observe while a person is still behind the wheel during the traffic stop is whether that person has slurred speech, has trouble locating his insurance card or driver’s license, and if he has trouble manipulating the license to get it out of his wallet before he hands it to the officer. Finally, the police officer will observe the suspect’s eyes: Are they bloodshot or glassy? Are they staring more than usual? These are observations that a police officer can make before he ever asks somebody to step out of a vehicle, and those are the first things that an officer is looking for during a DWI investigation.
Out of the Vehicle Investigation – After the police officer has asked the person in a DWI investigation to step out of the vehicle, the police officer will generally have him walk to the back of the person’s vehicle. Usually, the patrol car will be parked behind the driver’s vehicle. What the officer is going to look for during this sequence of events is how the person gets out of the vehicle.
Does the person have to unnecessarily use the door or the side of the car to help them out of the vehicle?
Once the person is on his feet, how is his balance? Does the person use the vehicle for balance as he walks to the back of the vehicle?
Once the person is standing at the back of the vehicle, is he swaying? Is he leaning against the vehicle?
When the person took the steps to walk to the back of the vehicle, were those steps staggering, or abnormal in some other way?
Now, if the police officer’s car has a dashboard camera, this is when the dashboard camera will start to pick up actual video observations of the suspect. Usually, with a lapel microphone, the officer may have already recorded the conversation that he had with the person at the driver’s side window. But the video really comes into play once the person is out of his car and at the back of his vehicle, in front of the police car.
The dashboard camera may also have recorded the driving observations that led to the original stop, but at this point the dashboard camera will begin to pick up the person’s physical condition.
It has been my experience that, if there is a video, jurors will focus their attention on the suspect’s general physical demeanor on the video.
These physical observations on the video are where the average person or juror feels he or she can best evaluate whether someone is intoxicated. Jurors understand that a person driving poorly does not necessarily mean the person is intoxicated. Although the prosecutor and the police officer may weigh field sobriety tests heavily in the their determination of whether someone is intoxicated, jurors usually will not weigh field sobriety tests as heavily.
This makes sense because jurors are not familiar with field sobriety tests. They do not understand how they work or what they should be looking for when watching the field sobriety tests. Jurors feel the most comfortable judging someone in a way they know best, which is through general observations like balance, walking, slurred speech, and body language.
At this point, the police officer will usually have another conversation with the person at the back of the vehicle. The officer will ask additional questions beyond those questions originally asked when the person was in the car.
The police officer may ask more questions about what the person had to drink, such as:
What specifically did he have to drink?
Was it beer?
Was it wine?
If it was beer, what kind of beer?
How big were the drinks?
How long were you drinking?
Where were you drinking?
One beer is not one beer anymore with all the craft breweries and beers that are available. So, one beer might be 5% alcohol, whereas another one might be 10% alcohol. A well-trained police officer is going to ask these questions to determine how much alcohol a person actually consumed. There is an important distinction to be made between how much liquid a person consumed versus how much alcohol that person actually consumed.
The amount of alcohol consumed is the most important piece of information a police officer could obtain during a DWI investigation. The police officer should also ask questions to establish the time period during which the person consumed the alcohol.
When a police officer does not ask these important follow-up questions, it can be held against the police officer in court. Failing to ask these questions is a shortcoming of many police investigations. This lack of proper investigation should be held against the police officer, and should impact the way a prosecutor or jury values that officer’s ability to conduct a full, fair, and accurate investigation.
These questions should be asked by the police officer before making a determination of whether the investigation should then proceed to the administration of field sobriety tests, and finally it should play a role in the officer’s overall decision of whether to arrest the person for driving while intoxicated.