Americans generally have zero tolerance for drunk drivers. M.A.D.D., S.A.D.D., your next-door neighbor — nobody wants drunk drivers on the road, and stringent laws are in place to ensure this. You have to go pretty far out of your way to bungle a DUI case, yet it happens far too often.
Earlier this week it emerged that Cook County, Ill., prosecutors dropped more than 50 drunk-driving cases — with a potential of 500 more — when it was determined that the officer had failed to follow protocol.
According to the report, the officer, who’d been previously lauded for his many DUI convictions, failed to do three legally-required things:
- Keep the suspect under 20 minutes of continuous observation
- Give him a field sobriety test
- Warn him of the consequences of refusing to take a Breathalyzer test
It’s vital you keep these three points in mind, or else you’ll run the risk of blowing your DUI case, like this officer did.
Observation
Arbitrary as it may seem, this law is in place for a reason.
According to law enforcement legal expert Ken Wallentine, the requirement of observing the suspect/defendant in a DUI case for 15 or 20 minutes stems from a case addressing core requirements for admission of a chemical BA test.
Many — if not all — states follow what has become known as the Baker rule as the proper foundation necessary to establish the reliability of a blood alcohol level obtained from a breath test, according to Wallentine.
He said it consists of showing that:
- The intoxilyzer machine had been properly checked by a trained technician, and that the machine was in proper working condition at the time of the test.
- The test was administered correctly by a qualified operator.
- A police officer observed the defendant during the 15 minutes immediately preceding the test to ensure that the defendant introduced nothing into his or her mouth during that time.
“There is always the concern that a defendant will chew on a breath mint strip or consume mouthwash or some other substance containing alcohol and that it will skew the BA test results,” Wallentine said. The Baker rule, he said, requires that an officer visibly inspect the defendant’s mouth at the beginning of the 15 or 20-minute observation period.
“Because this is a foundational test, failure to observe the defendant generally invalidates the breath test and does not merely impact its weight,” he said. “If the driving pattern and field sobriety tests are not strongly indicative of impaired driving, losing the admissibility of the breath test can be the death of a DUI —aka DWI — prosecution.”
Field sobriety tests
Field sobriety tests (FSTs) are the bread and butter of DUI convictions, and while it is possible to seal a case without conducting them, it’s rare and not recommended.
“Too many officers stop cars, smell alcohol and figure that the chemical detection test will prove that they’re drunk,” said Robert Willis, a law enforcement instructor at Northeast Wisconsin Technical College in Green Bay, WI.
Given this, it’s understandable that one of the most common DUI pitfalls involves officers counting too heavily or exclusively on the results of a chemical detection test that might or might not pan out.
“If your Breathalyzer [result] is thrown out and you have very little probable cause in your report and little or no documentation of your initial observations of their driving, you’re not going to get a drunk-driving conviction,” Willis said.
In a legal setting, the results of these chemical tests can be easily suppressed if there’s no probable cause for stopping the vehicle in the first place.
Furthermore, chemical tests are not fail-proof. Alcohol tends to evaporate and/or absorb quickly from a person’s tongue, and again their reliability can be skewed by external factors like breath mints.
“The crux of a DUI prosecution is that a defendant is impaired to the degree that he or she cannot safely operate a vehicle,” Wallentine said. “The FSTs are very often the best evidence of this.”
The gold standard
According to Willis, the three FST gold standard tests for DUI suspects are:
- Eye tracking: The horizontal gaze nystagmus test, which Willis calls “marbles on ice.” Instruct the subject to follow a light source side-to-side. A drunk person’s pupils will start to bounce as they track from side-to-side.
- One-leg stand: The suspect has to balance on one foot of their choice.
- Straight line walking test: Give them instructions to do a heel-toe walk (walk and turn); count their steps as they walk, make a turn, and count their steps as they walk back.
Former DUI task force instructor Sgt. Ken Keating, of the Naperville (Ill.) PD, said, if given properly, with the correct instruction, these standardized tests are the tried and true triumvirate that will hold up in court.
“If you give someone these three tests and they fail each one,” he said, “you’re probably looking at 99 percent likelihood that this person is impaired by a substance.”
However, it’s important to note that there can be variables that can skew results, for example, obesity, someone with a hip problem, or someone with legitimate balance issues.
“The most important thing in administering field sobriety tests is consistency,” Keating said. “If you are consistent in the way you deliver your instructions, the likelihood you’ll have problems is greatly diminished.”
When Keating worked in Florida, his department used pre-printed instructions on how to give the tests, which helped to give credence and authority to the accounts of officers in the courtroom.
“We read them word for word every time, to the point I had them memorized,” he said. “There’s no room for error. It gives great credibility on the stand. When a defense attorney asks you, ‘How did you tell my client to do the one leg stand?’ you can recite the account verbatim, with confidence and strength.”
Failure to warn of the consequences of refusing a chemical test
Most states work within the legal framework of “implied consent.” It means every driver has been granted the privilege to drive with the understanding that, under probable-cause suspicion, an individual would submit to a chemical test to determine blood alcohol or other substance content.
This point only becomes an issue if the person refuses the test.
“In most states, it’s the officer’s legal responsibility to tell them the consequences of refusing the Breathlyzer, which usually are license revocation and a steep fine,” said Willis. The penalty for refusal, he added, can be just as bad — or worse — than a conviction for drunk driving.
Wallentine said that the failure to warn of the consequences of refusing a chemical test should not impact the underlying prosecution. However, it can be fatal to the administrative revocation or suspension of a driver license
“It is also — to be blunt — an inexcusable, sloppy error by the officer,” Wallentine said. “Almost every state has a pre-printed form that must be read to the defendant. It takes only a few minutes and involves nothing more than following a well-established and sensible rule.”
End game
Impaired drivers on our roadways are a serious business, and need to be taken seriously by police.
It bears repeating that DUIs are a crime investigation, and should be treated as such. This means writing complete reports, being consistent, sticking to standardized FSTs — resisting the urge to improvise — and not relying too heavily on the results of chemical detection tests.
Keeping this in mind means every citation can be a conviction.
