OFF THE WIRE
WHAT HAPPENS AT A DUI STOP? In the United States, “probable cause” is the standard by which an officer of the law has grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest. In the context of a DUI stop, which often happens late at night, from the moment the officer turns on the red-and- blue lights, he is looking for information that will provide him with the requisite probable cause to make a DUI arrest. Perhaps, the officer was on patrol and he saw your vehicle leave an establishment where liquor is served. For whatever reason, he may feel that your driving was less than perfect – perhaps you swerved, crossed a painted line on the road, or drove too slowly or too quickly. Already, the probable cause for a stop and eventual arrest is starting to build. The officer approaches your car, and soon he asks if you have had anything to drink tonight. If you answer yes, even if you state that it was just a small amount hours ago, it still adds to the growing “collection” of information needed for an arrest. The officer may then ask you to perform some field sobriety tests – perhaps you have seen some of these in movies or on TV, such as walking a line, standing on one foot, or touching the tip of your nose. Many of these tests are difficult for ANYONE to perform, sober or not, and since they are often conducted when you are tired and scared, often in less-than-optimum conditions (by the side of a busy highway), it is a foregone conclusion that the officer will deem that you have performed poorly on the tests. In California, there is no requirement, whatsoever, to perform the field sobriety tests – quite simply, they will not help you and in the vast majority of cases, they will simply provide the officer with more probable cause to decide that you are DUI. Finally, the officer may ask you to provide a breath sample in a small, hand-held preliminary alcohol screening (PAS) unit. Again, in California, there is generally no requirement that you provide a breath sample for a PAS unit. If you have been drinking, even a very modest amount, there is simply no advantage to agreeing to provide a breath sample. However, most people do so, and it adds yet another bit of evidence to the growing list being compiled by the officer. Now consider your situation – the officer alleges that he observed you driving erratically, you admitted that you consumed alcohol that evening, you performed poorly with regard to the field sobriety tests (according to the officer), and finally, the PAS device shows that you have recently consumed alcohol. Does the officer have probable cause to place you under arrest for DUI? – in most cases, absolutely! No one is advocating that you drink and drive – in fact, just the opposite. PLEASE, DO NOT DRINK AND DRIVE! However, in California, keep in mind that you are not required to answer the officer’s questions with regard to where you have been or if you have consumed any alcohol. You are not required to perform the field sobriety tests, and in most cases, you are not required to provide a breath sample for a PAS unit. If you choose to do otherwise, even if your blood alcohol content is below the legal limit, you may be setting the stage for a DUI arrest which could prove unpleasant and costly to resolve.
If you are placed under arrest, then you must submit to a chemical test, either breath or blood. If you are over the legal limit, you will be charged with DUI. Also, once arrested, the officer generally can search your vehicle. However, probable cause will still be important to your case. Even if you were over limit, if there was insufficient probable cause, the case should be dismissed. Thus, the prosecution must prove every element of the case against you.
Then, if you arrested and charged with DUI, probable cause will likely play an important role in your defense. Did the officer have sufficient grounds to stop you, and later arrest you? If not, your case must be dismissed.
Unless we are planning to scrap the Constitution, and adopt the policies of some of the most repressive regimes in the world, we are entitled to certain rights afforded to us in all criminal matters. No one is advocating drinking and driving - just the opposite. However, it is critical that people understand their rights and that the authorities build their cases properly, while respecting these rights.
Any time you are driving, a peace officer is generally permitted to inspect your license, registration and proof of insurance. These documents are generally requested at sobriety checkpoints simply because the officer is permitted to do so - it may also identify "problem" situations (a stolen vehicle, driving without a license, lack of insurance, etc.). But, another important, and perhaps unstated, reason is that people who are under the influence often have difficulty focusing their attention on more than one task. That is the reason why at a DUI stop, the officer may pose a question on one topic, and then "switch gears" and pose another question (or ask you to do something) in a completely different vein. For example, the officer may ask you why you are travelling that particular route, and midway through your response, he may ask you to produce your documents. Becoming confused, fumbling with your documents, not being able to locate your documents, etc., all add to the officer's probable cause that you are driving under the influence.
If you are placed under arrest, then you must submit to a chemical test, either breath or blood. If you are over the legal limit, you will be charged with DUI. Also, once arrested, the officer generally can search your vehicle. However, probable cause will still be important to your case. Even if you were over limit, if there was insufficient probable cause, the case should be dismissed. Thus, the prosecution must prove every element of the case against you.
Then, if you arrested and charged with DUI, probable cause will likely play an important role in your defense. Did the officer have sufficient grounds to stop you, and later arrest you? If not, your case must be dismissed.
Unless we are planning to scrap the Constitution, and adopt the policies of some of the most repressive regimes in the world, we are entitled to certain rights afforded to us in all criminal matters. No one is advocating drinking and driving - just the opposite. However, it is critical that people understand their rights and that the authorities build their cases properly, while respecting these rights.
Any time you are driving, a peace officer is generally permitted to inspect your license, registration and proof of insurance. These documents are generally requested at sobriety checkpoints simply because the officer is permitted to do so - it may also identify "problem" situations (a stolen vehicle, driving without a license, lack of insurance, etc.). But, another important, and perhaps unstated, reason is that people who are under the influence often have difficulty focusing their attention on more than one task. That is the reason why at a DUI stop, the officer may pose a question on one topic, and then "switch gears" and pose another question (or ask you to do something) in a completely different vein. For example, the officer may ask you why you are travelling that particular route, and midway through your response, he may ask you to produce your documents. Becoming confused, fumbling with your documents, not being able to locate your documents, etc., all add to the officer's probable cause that you are driving under the influence.