Frequently Asked Questions
The frequently asked questions listed below were written by Lawrence Taylor - Dean of the National College DUI Defense
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
6. Driving on other than designated highway
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling 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 DUI; because of quicker judgment and reflexes, it may indicate sobriety.
2. 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
3. What should I do if I'm asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe,
finger-to-nose, one-leg stand, alphabet recitation, modified position of attention,
fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three
to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable "fails". Thus, in most cases a polite refusal may be appropriate.
4. 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
45 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.
5.. 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 can have a huge
Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of 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.
6. What defenses are there in a DUI 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 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". Too, 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 45 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 (see question #5). 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.