By Officer Manuel Aguinaga
Gone are the days when DWI investigations were easily prosecutable. As various media outlets accuse officers of arresting sober drivers for DWI, some are left to wonder whether the 1998 San Diego Validation Study will still hold up in court. Although Standardized Field Sobriety Tests (SFSTs) have been scientifically validated, law enforcement professionals must convince the court beyond a reasonable doubt that the defendant is guilty of DWI.
In many cases, SFSTs are only one part of building a strong case. In my experience as a DWI Task Force Officer, one of the most effective ways to strengthen an investigation is by building rapport with drivers and using interview techniques that encourage cooperation and conversation during the roadside encounter.
Conducting the traffic stop
As law enforcement officers, it is our duty to conduct traffic stops when we witness motor vehicle violations. DWI court preparation begins as soon as we observe the violation or when enough articulable reasons can be gathered to effectively conduct a traffic stop. These violations range from moving to non-moving motor vehicle violations. Often, when we come into contact with drivers, it is our duty as law enforcement officers to ensure that the violation is stated, that we remain calm and professional and that we inquire about any suspected criminal activity or address any potential signs of impairment.
The way we make our initial appearance sets the pace for the encounter. If an officer approaches a vehicle with a stern “License, registration and proof of insurance” request, that officer may begin the interaction in a tense manner. If the driver is ultimately arrested, that initial interaction may be the reason why the driver refuses to submit to standardized field sobriety testing (SFST) or chemical analysis. If officers approach the traffic stop in an aggressive or robotic manner, they may find that professionalism and rapport building have long-lasting effects throughout the entirety of the encounter.
As a DWI Task Force Officer, my primary duty is to remove impaired drivers from our roadways. One way I have been successful is by building rapport with drivers. I used to believe that my first name was private and, when asked what my first name was, my response used to be “Officer.” But the more I learned to remove the robotic mannerisms from my approach, the more successful I became at gaining compliance. Our first names are public knowledge. There is no secrecy to our names, as law enforcement agencies will provide them upon request, and finding an officer’s first name is not difficult.
Why do I mention this? It is important to avoid sounding robotic and instead speak in a calm, conversational way. When I approach a vehicle, I immediately begin with: “Hey sir/ma’am, I am Manny. I’m not sure if you are aware, but the speed limit is 55 miles per hour and I clocked you at 70. Is there a reason you were going that fast?”
It is surprising to see the response I get simply by approaching drivers this way. Now do not sacrifice officer safety. My eyes are always on their hands, and my questions are standard:
- Where are you coming from tonight?
- Where are you going?
- How much have you had to drink?
It is important not to delay the stop and address any criminal activity. If you are robotic, I find that the defendant will be more reserved. But if you present a laid-back professional attitude, you will be able to build a case effectively. This is the point of the traffic stop where you must determine whether you have enough information to delay the stop and conduct a DWI investigation.
When a defendant admits to any consumption, it is important to “downplay the quantity.” This technique can make the driver more comfortable continuing the conversation. When people believe their actions are not being exaggerated or judged, they are often more willing to provide additional details about their behavior.
“How much have you had to drink today?”
“Just two beers.”
“Two beers, that’s it? You didn’t drink a whole bottle of whiskey or drink an entire 24-pack, did you?”
When I respond to their quantity this way, drivers often become more comfortable continuing the conversation. That comfort level can lead them to provide additional details about their consumption. I then return to my vehicle, conduct a license and warrant check and request another unit.
It is essential that the majority of your questions are open-ended and solicit a conversation.
Requesting the individual to exit the vehicle
I always make a secondary approach for two reasons. The first is to ensure the driver I am going to be out with is not a fugitive on the FBI’s most wanted list or someone with outstanding warrants. I want to get a good idea of the criminal history of the individual I am requesting to exit the vehicle. The second is to wait for a secondary officer or have a secondary officer nearby.
As I return to the defendant’s vehicle and instruct the driver to exit the vehicle, I begin with: “Hey, while I wait for the DMV to get back with your information, I’m going to have you exit the vehicle to ensure you are good to drive.”
Immediately upon the defendant opening the vehicle door, I ask for consent to frisk them. I prefer not to conduct SFSTs until officer safety concerns have been addressed. When appropriate legal justification exists, I will request consent to frisk before proceeding. If they refuse, I make it known that I must always see their hands and wait before proceeding to administer SFSTs until a second officer arrives. There is no such thing as frisking someone solely for officer safety — you must still have reasonable suspicion to accomplish this.
If a passenger-side approach is made, the moment the driver opens the door, safely go in front of their vehicle simultaneously as they exit rather than meeting them in the back. When I make a passenger-side approach and request a driver to exit the vehicle, I tell them to meet me in front of my patrol vehicle. As soon as I see them open the driver-side door, I move in front of the defendant’s vehicle rather than walking to the back. I do this without losing sight of the driver.
I do this because it is easier to see the entire body of the driver and ensure they do not exit with any weapons. If you walk with them to the back, you are unable to see what they have in their hands.
The SFST and investigation
This next step brings you face to face with the driver. At this point, tell them what you are about to do and give them a short demonstration. The average person does not know what you are looking for during the Horizontal Gaze Nystagmus (HGN) and may believe you are only looking at the tracking of their eyes and your stimulus. At this point, ask them again how much they have had to drink. In many cases, they give you a contradictory amount.
After gathering clues, ensure you continue with the remaining battery of tests as defined in Section 8 of the NHTSA SFST manual.
At the conclusion of the One Leg Stand, if you elect to collect a Preliminary Breath Test (PBT), this is the only time you are authorized to obtain a sample under NHTSA standards.
Officers should avoid rushing to an arrest when additional evidence can still be gathered. No homicide detective will just take a confession; they will try to obtain additional evidence. DWI officers should look to obtain the same level of evidence.
I typically ask them again about their quantity of consumption a third time, and proceed to have them count backwards and recite the alphabet. Furthermore, I ask them on a scale of “0” to “10” how impaired they feel and if they feel they should have made better decisions in terms of transportation. All this is accomplished between the collection of the first PBT sample and the second PBT sample, which NHTSA states should be a minimum of five minutes.
Using conversational hooks to build rapport
It is helpful to identify small “hooks” during the conversation — topics that keep the driver talking and help build rapport. A hook can be anything the driver shows interest in or feels comfortable discussing.
For example, I may ask how long they have lived in the area, where they originally came from or whether they follow any sports teams. These simple questions can help create a more relaxed conversation and often encourage drivers to provide additional information.
This does not mean extending the stop unnecessarily or ignoring officer safety. These conversations typically occur while other parts of the investigation are taking place, such as waiting for records checks or preparing to administer field sobriety tests.
Like detectives during interviews, officers can use rapport and conversation to gather additional details. As DWI officers, we must do the same while continuing to follow the standardized field sobriety testing process and ensuring officer safety throughout the stop.
Chemical analysis and spontaneous comments
After the subject is placed under arrest and transported to the breath testing site or hospital, continue the same amount of rapport and professionalism. I have found that extending the rapport beyond the road will carry to the breath testing site, and subjects are more likely to submit to a chemical analysis.
I have found that by creating these environments, defendants are more likely to provide spontaneous comments. I have allowed them to smoke a cigarette, offered water and allowed them to use the restroom when appropriate. This does not apply to combative subjects or those who show pre-assault indicators.
1998 San Diego Validation Study and modern judicial systems
Every experienced DWI officer knows that the foundation of our DWI investigations is developed from the 1998 San Diego Validation Study. As we continue in our careers, one may face challenges relying solely on the three tests. It is important that you articulate everything, utilize your investigative skills to gather additional evidence and improve your case when it goes to court.
If an officer presents a case to a jury and states, “I pulled the defendant over for speeding, requested him to exit and then he performed poorly on all SFSTs and I arrested,” it may be difficult to convince a jury if no other investigative skills are used. We must still administer standardized field sobriety tests as they were created but we must not shortchange ourselves and fail to establish a rapport to receive additional evidence. That is why I am a major advocate for continuing your investigation and obtaining additional evidence.
Key takeaways for DWI officers
- The tone you set during the initial contact can influence whether a driver cooperates with SFSTs and chemical testing.
- Open-ended questions and conversational tone often produce more useful admissions than rigid questioning.
- Continue the investigation even after strong clues appear and gather as much evidence as possible before making an arrest.
- Look for “hooks” during conversation that help build rapport and keep the subject talking.
- Maintain professionalism and rapport even after arrest as cooperation may continue during chemical testing.
About the author
Officer Manuel Aguinaga is a DWI Task Force Officer for a municipal police department in North Carolina. Along with a Master of Criminal Justice degree from Liberty University, Officer Aguinaga holds an Advanced Law Enforcement Certificate and is a certified Drug Recognition Expert, an SFST instructor and a General Law Enforcement Instructor. Officer Aguinaga has over ten years of military and police experience in both the United States Army and the United States Air Force. As of the date of this article, Officer Aguinaga is a doctoral candidate at Liberty University and has earned an executive certificate in criminal justice. Officer Aguinaga holds various awards throughout his career and has several hundred DWI arrests and thousands of enforcement hours under his belt.
