Personal Contact and Pre-Arrest Screening Phases of DUI Detection

Personal Contact Phase of DUI Detection

After stopping the vehicle the officer will look for evidence of alcohol or drug influence. Officers are trained to look for blood shot or watery eyes, fumbling when retrieving requested documentation, alcohol containers, slurred speech, admission of drinking, and odor of marijuana or alcoholic beverages emanating from the person’s vehicle or breath. Many of these “clues” may appear for reasons other than alcohol consumption.

Consistent with their training, officers may also ask for two things simultaneously, ask interrupting or distracting questions, or ask unusual questions. The goal is to determine whether the driver is able to display “divided attention.” But testing or tricking drivers without their knowledge is not necessarily an accurate or fair indicator of intoxication.

Officers are also trained to pay attention to how the driver exits the vehicle. They look for such things as leaving the door open, “climbing” out of the vehicle, grabbing the door to exit, or leaning against the vehicle. However many of these clues are innocuous and may appear for reasons other than alcohol consumption.

Pre-Arrest Screening Phase of DUI Detection

During this phase the officer will ask the driver whether he or she will submit to a series of “voluntary” standardized field sobriety tests (SFSTs). In Washington, a driver has no legal obligation to perform a SFST. City of Seattle v. Stalsbroten, 138 Wash. 2d 227, 237, 978 P.2d 1059, 1064 (1999). But the Washington Supreme Court has held that admitting evidence of a defendant’s refusal to perform a SFSTs does not offend the Fifth Amendment right against incrimination and that it is constitutionally permissible to admit evidence of a defendant’s refusal to take a field sobriety test. Stalsbroten, 138 Wash. 2d at 237-239. However, starting in 2013 some trial courts in Washington began suppressing refusals to submit to SFSTs under search and seizure law as opposed to Fifth Amendment jurisprudence. Appellate courts in other jurisdictions have determined SFSTs constitute searches. See, e.g., Blasi v. State, 893 A.2d 1152, 1164 (Md. Ct. Spec. App. 2006); Hulse v. State, Dept. of Justice, 961 P.2d 75, 85 (Mont. 1998); State v. Nagel, 880 P.2d 451, 455 (Or. 1994). People have a constitutional right to refuse consent to warrantless searches. In 2013, Division One of the Washington Court of Appeals held that it was manifest constitutional error to use a Defendant’s invocation of his constitutional right to refuse consent to a warrantless search as substantive evidence of his guilt. State v. Gauthier, 174 Wash.App. 257, 298 P.3d 126 (Wash. Ct. App. 2013). Unfortunately, the Washington Court of Appeals recently held that evidence of a defendant’s refusal to submit to a field sobriety test is admissible in State v. Mecham, 323 P.3d 1088 (Wash. Ct. App. 2014). The legal reasoning in the Mecham case is questionable. Lawyers anticipate that this area of law will continue to evolve.

Individuals should consider politely refusing SFSTs notwithstanding the potential admissibility of the refusal. The driver should consider explaining the refusal (e.g. advice of counsel, injury, illness, fatigue, sore muscles, and other valid reasons tending to indicate the test would be unfair). It seems in real life few persons “pass” SFSTs administered by officers in the field notwithstanding lack of intoxication.

The SFSTs officers use include the (1) Horizontal Gaze Nystagmus Test (HGN); (2) Walk and Turn; and (3) One Leg Stand. Upon completion of these SFSTs the officer typically requests the person submit to a “voluntary” portable breath test (PBT).

Contact the DUI defense attorneys at Platt & Buescher today to talk about resolving your DUI charge. The DUI attorneys at Platt & Buescher serve Oak Harbor, Island County, Bellingham, Burlington, Mt. Vernon, Whatcom County, Skagit County, Seattle, King County, and greater western Washington.