Anatomy of a DUI: The Pre-Arrest ScreeningJonathan Rands
Whether the stop of your car occurs in Bellingham, Mount Vernon, Island County, or anywhere in Washington, once the officer has made a decision to stop the car for some traffic violation there is a face to face contact. In the DUI Detection world and specific DUI training, this is a phase where the officer is supposed to decide if only a traffic infraction should be issued, or if something “else” is going. Meaning, the thought process for the officer...
Whether the stop of your car occurs in Bellingham, Mount Vernon, Island County, or anywhere in Washington, once the officer has made a decision to stop the car for some traffic violation there is a face to face contact. In the DUI Detection world and specific DUI training, this is a phase where the officer is supposed to decide if only a traffic infraction should be issued, or if something “else” is going. Meaning, the thought process for the officer during daytime hours is different than the hours of 10pm to 2am. Although there is no “rule” this is the typical DUI prime-time. As a result, these are the hours where the officer’s training suggests that an officer should expect to smell alcohol, expect and be ready to make a DUI arrest because their training emphasizes that almost everyone on the road at these times has been drinking. As a result, that is the assumption they make when first seeing a driver commit some form of traffic infraction. Coincidentally, this is also the assumption most driver’s on the road make when they see a car driving erratically during these same hours. After all what do you say to your passenger or just yourself when you see a car doing something odd during these hours of darkness? “Geez, that person must be drunk.” The danger of this assumption is obvious.
Upon contact the smell of alcohol pretty much dictates what will happen next. Once the officer smells alcohol you will be exiting the car. If you have passengers, you will be asked to get out so that the officer can “separate” you, the driver, from the source of the alcohol. If you are alone, the request to get out of the car is the first step of roadside testing, or otherwise called “pre-arrest screening.”
This is the actual phrase used in National Highway Traffic Safety Administration (NHTSA) DUI Detection training manual and other materials. It is an interesting choice of words as it clearly states that an arrest is imminent regardless of the results. First we will screen you for an arrest, and next we will arrest. Based on my experience, this is true and this is exactly why I have represented numerous driver’s who are arrested based upon this pre-arrest screening, yet provide a breath sample between .02 and .07.
Error on the Side of Caution?
Currently, Officer training is focused upon “hooking and booking” and let the prosecutor sort it out. Initially, this may seem like a good public policy (error on the side of caution and remove all discretion from the officer), but from a civil rights and 4th Amendment perspective it is a horrible policy that blatantly violates the rights of a driver. It is a policy that flies in the face of the fact that Washington DUI laws permit the consumption of alcohol and driving. The laws do not advocate for DUI, and neither do I, but the law states that it is legal to consume and then drive; however, the two cannot be mixed to the point where the person’s breath alcohol concentration is .08 or above, or to the point where the driver’s ability to drive is affected by the alcohol they consumed. This is usually sought to be proven by the roadside. It is for these reasons that the best DUI defense is to simply not drink and drive.
Informal Sobriety Testing
Upon officer contact the only obligation a driver has is to provide the following information; license, registration, and proof of insurance. Everything else is voluntary, but human nature is that we seek to comply with the requests of law enforcement since they are in a position of authority. Officers will use this authority to their advantage and seek to get as much information as possible above and beyond the information that is required to be provided in the form of the above documents. Typical questions from an officer are: "where are going?;" "where are you coming from?;" "is this your current address?;" and so one and so forth as the list of possible questions is as long as the officer’s imagination allows it to be. While it may be uncomfortable to refuse to answers these seemingly polite questions, that is your absolute right as driver in Washington.
The purpose of these questions is so that the officer can hear how you speak; is their slurred speech? Does the answer make sense? Once again, the list here is focused upon DUI. The purpose is to try and detect the odor of alcohol from you as you speak. The Officer will want you to look at him/her when you speak to accomplish the aforementioned. The officer’s thoughts are; "Does the driver look at me when we talk?" and if you don't, the only plausible explanation is that you are trying to hide the odor. The same may be said about driver’s who are chewing gum or wearing perfume and cologne, to "mask the odor of alcohol." Of course there are alternative explanations for all of this but once stopped an investigation for DUI begins and this is part of the officer’s training.
What most driver’s don’t know is that these roadside questions are a form of sobriety testing before formal roadside testing. They are trained to ask these during the same time a person is looking for the requested documents. In short, the officer is trained to divide your attention. Driving is a complex divided attention task, so the rationale is if you cannot do simple tasks, then, you must be DUI. However, the circumstances of a stop by a police officer are stressful and everyone has different reactions to stress, many of which can be mistaken for intoxication when you have had something to drink, yet legally unimpaired.
Based on what is seen at this phase of the investigation an officer will ask you out of the vehicle in some manner. It may seem like an invite; it may sound like an order; it may be a combination, it may be that the officer opens the door and makes some form of exit request or statement. Make no mistake about this; the purpose here is to watch how you get out and to get you out of the car and is a precursor to roadside sobriety testing.
I simply cannot emphasize this point enough: after the request for the documents, everything else is voluntary. When things are voluntary that means it is your RIGHT to politely refuse. It is my practice to advise all of my clients that a polite refusal is the best way to protect you. However, by doing so, you are going to be arrested, but the alternative is to comply and also be arrested.
Officers testify all the time in jury trials that they investigate hundreds of people and yet don’t arrest everyone for DUI. If this is the case, then why do I have clients who provide breath samples well under the legal limit?
Roadside Tests are Designed for Failure
In short order, if you have consumed alcohol even if you are not impaired, trying to prove you are not impaired usually does not work. This is because the roadside tests are designed for failure. They are a well developed set of roadside tasks that most people cannot do regardless of whether they have consumed. I have availed myself to the exact training (as well as numerous hours of other important and necessary training) that the officers undergo, not once, but twice. The next step for me is instructor status. I have spend many hours writing about them and explaining them in lectures, blogs, website general content, and spend even more time interviewing and examining officers with respect to these tests. The creator of these tests herself, Marcelline Burns has stated under oath that these tests are not designed to determine impairment, but they have morphed into evidence of impairment in the criminal justice system. Prosecutors seek to explain the tests in terms of proof of impairment, but this is simply not the case, yet can be persuasive.
I have worked with sobriety tests in almost every DUI case I take on and that is over 1500 to date. My opinions are a result of this training, this experience, and more. The best way to protect your rights, and future DUI defense interests is to politely decline these unfair tests.
Once stopped by a law enforcement officer and you have been driving the result is fairly predictable-Arrest for suspicion of DUI. Once the arrest happens much of what happens next is beyond your control, but you can dictate the type of evidence that will follow by your actions and acknowledgment and implementation of your rights.