Your D.U.I. Arrest

Let's assume that you've had a couple beers, you've gotten into your car and drive off.  Under what circumstances may a police officer pull you over?   The answer is "most."

The Stop

All the officer needs is "reasonable suspicion" of criminal activity, such as speeding or a tail light out, going too slow, illegal start and stop, a call from a cell phone informant that observed the alleged driving in an erratic manner, roadblocks, cars pulled over from an accident or that have driven off the road in snowy conditions, or even those parked in a lot or on the shoulder of the road.  Reasonable suspicion is very broad.  Judges or juries just need to believe that the officer was reasonable and not acting irrationally or with ulterior motives.

Without pulling a car over, the authorities are permitted to run a check with the Registry of Motor Vehicles. If they find that the owner has a suspended license they have established reasonable suspicion to complete an investigatory stop.

Reasonable suspicion is not a high threshold, but it does have limits.  The Supreme Court has said that it must be based on "specific and articulable facts", "taken together with rational inferences from those facts" (Terry v. Ohio, 392 U.S. at 21), but it must consist of  more than an "inchoate and unparticularized suspicion or 'hunch' " (Id., at 27).

There are also three categories of exceptions police can use to avoid the need for reasonable suspicion entirely. 

One such exception is the “Community Caretaking Doctrine”.  The Community Caretaking Doctrine takes place to make sure the occupants of a car are safe, such as checking on a car pulled over on a road shoulder with a flat tire.  This exception can't be premised where the real intent is to investigate potential criminal activity.

A second, the “Emergency Exception Doctrine,” permits the apprehension of suspects where there appears to be an emergency situation requiring immediate action for the protection of life, property and safety of the public.

And, thirdly, of course, there are the very controversial sobriety check points.

Not everyone arrested for a DUI is a drunk who is grossly impaired. In New Hampshire it is illegal to drive with a blood alcohol concentration (BAC) of .08 percent or above. The .08 limit is the standard measurement used across the United States for the "impaired" driver. That can be a little as two drinks.  New Hampshire has lower BAC limits for drivers of commercial vehicles and drivers under the age of 21. In addition to alcohol the New Hampshire DUI law also includes driving under the influence of controlled substances such as marijuana, cocaine and other drugs.  Even prescription drugs taken under the direction of your physician are not exempt.  The officer will use reasonable cause to pull you over and conduct a road-side sobriety test and perform a BAC test.  Even if your BAC is within legal limits, if, in the officer's opinion, you appear impaired, you will likely be arrested.

Yes, there are quite a lot of traffic fatalities that involve alcohol, but not as many as groups like MADD (and their over-the-top emotional ads) would have you think. According to former MADD President Wendy Hamilton, there were 17,448 drunken driving deaths in 2001, up from 16,572 in 1999. An analysis by Edward Hass shows this is simply is not true. According to the National Highway Traffic Safety Administration, there were 17,448 alcohol-related traffic fatalities in 2001, but they were not all the result of drunk driving as Hamilton claims. The NHTSA defines a fatal traffic crash as being alcohol-related if either a driver or a non-occupant (e.g., pedestrian) has a blood alcohol concentration (BAC) of 0.01 grams per deciliter (g/dl) or greater in a police-reported traffic crash. To put 0.01 g/dl in perspective, ten times that amount is required to achieve a BAC of 0.10 g/dl, which is the legal limit of intoxication in most states. Yet MADD continues to mislead America by allowing the public to believe that there were 17,448 victims of drunk drivers in 2001.  And it is almost entirely due to MADD that we have the current, very strict and very punitive, D.U.I. laws that create a large influx of offenders into our prisons and leave predominantly young people with criminal records that will follow them for the rest of their lives.  I will have a lot to say about D.U.I. legislation and MADD in later posts.  I, and others, see the push for zero tolerance of drinking and driving, particularly among teenage drivers, as another form of prohibition.

Can and should you refuse a BAC test?  You waived that right when you got your license.  New Hampshire, like all other States, is what's called an “implied consent” state.  This means that the mere ownership of a drivers license gives a law enforcement officer implied consent to conduct blood-alcohol tests if the officer believes you may be under the influence (through, for instance, the use of field sobriety tests). In implied consent states, if you refuse to take a blood-alcohol tests, you have your driving privileges taken away automatically, regardless of whether you are intoxicated.  Furthermore, the 5th Amendment right against self-incrimination does not apply to blood-alcohol tests, so you must consent if asked (or face a driver’s license suspension).  Indeed, a study by the National Highway Traffic Safety Administration (NHTSA) showed that those who refused received higher fines and longer jail terms.

If you believe your stop and/or arrest was illegal, you can hire an attorney (which will be very expensive) and try your luck in NH Superior Court.  Several cases are summarized on this NH Dept of Safety site.   The arresting officer report will certainly make you out to appear very impaired and you're going to have to show he had no reasonable grounds.  Succeeding in an illegal stop/arrest hearing is not very likely.  Furthermore, the requisite legal representation will be expensive.

In short, it is very expensive and unlikely that you will prevail in contesting most D.U.I. stops and arrests.  The best strategy might be to plead guilty, move forward, and get your license back as soon as possible.

The Arrest

So at this point you've been stopped by a police officer with (arguable) reasonable suspicion to investigate. You took a turn too wide, your headlights are off, another driver reported you using their cell phone, there is an accident (not necessarily involving you) or emergency, etc...When he/she starts to grill you do not admit to having had anything to drink. Instead, ask him/her is you are under arrest for any crime, and, if not, could you please get on your way.  The police are not your friend.  Anything you say will be used against you.  Be polite, but firm.  Do not make any incriminating statements.  Police officers often pull the line, "if you're straight with me, I'll give you a break."  No. They won't give you any breaks at all.  They will use any and all evidence to nail your sorry ass.  That's their job.  (For a great video on what to do and what not to do during a police stop see FlexYourRights.org's "BUSTED:  The Citizen's Guide to Surviving Police Encounters.")

The Officer will be looking for probable cause to arrest you for being impaired, such as:

• odor of an alcoholic beverage on the driver's breath or in the car generally
• slurred speech in response to the questioning
• watery, blood shot, and/or reddish eyes
• flushed face
• droopy eyelids
• difficulty in understanding and responding intelligently to question
• fumbling with his or her driver's license and registration
• the plain-view presence of containers of alcoholic beverages in the vehicle.
• admission of consumption of alcoholic beverage

If the officer sees any of the above you will be asked to get out of the car and perform a field sobriety test (FST).  A 3-task battery of standardized field sobriety tests (SFSTs) is gradually being adopted by all states. They were recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand.  This is what is used in New Hampshire.

If you fail the SFST, you will be asked to do a test for your Blood Alcohol Concentration (BAC) either by Breathalyzer or by a Blood draw.  In all U.S. States, including New Hampshire, Driving Licensing law include implied consent to have a breath or blood sample taken for B.A.C. determination.  If you refuse, your license will be automatically be revoked (you agreed to "implied consent" when you got your license).  In additional, judges statistically impose stricter sentences on those who refuse BAC tests.

If your behavior, SFST, and BAC test, provide probable cause, you will be read your Miranda Rights and arrested.

Keep in mind the difference in the burdens of evidence.  Reasonable suspicion is needed for the officer to stop and investigate.  Probable cause is needed to arrest you.  Reasonable suspicion requires less evidence than probable cause, but more than a mere hunch. A rule of thumb is that reasonable suspicion requires 25 % proof, and probable cause requires more than 50 % statistical chance.  Therefore, if there is probable cause for arrest for DWI, as suggested by the research and examples used above, then there is reasonable suspicion to stop a driver.

Next time--going to court and getting criminal and administrative suspension of your license.