Stop and Arrest
The blue lights come on in your rear window, followed by a short burst of siren signaling to you the police officer wants to you to pull over, stop and "chat for a while."
This is where your evening turns REAL BAD! What happens next and what you do and say in the following 10-15 minutes will have a great bearing on how well even the best of experienced attorneys can help you. You either know what to expect and make plans for it or you "wing it." If you choose to prepare yourself you may decide to employ some of the common knowledge regarding what you can expect from the police. In Georgia there are 159 counties along with several hundred cities and towns, so I won't try to inform you what approach any individual officer may employ.
My experience has taught me that even many Georgia State Patrol troopers don't follow their own training. They, like many other officers, ignore and often disregard the approved methods or standards they are taught, expected and PRESUMED to follow. You can imagine how such bad behavior on the part of the elite police forces of Georgia can "filter down" and degrade to something none of us would recognize as appropriate, legal or even ethical. So, I would instead refer you to a reading and understanding of the document below.
Here are the five phases of a "stop" recognized by the National Highway and Safety Administration (NHTSA). These practices, policies and standards are what are expected. The standards are what police are trained to do and trained to look for. After completing these steps the officer must make a decision whether to arrest a driver or let him go.
Phase 1: Vehicle in Motion
This phase is one in which the driver is often not even aware of the officer's presence, at least initially. Something has usually drawn the officer's attention to the driver's vehicle. There is a long list of driving behaviors recognized as being related to some form of driving impairment. They include everything from making turns too wide to driving too slowly. Other obvious traffic infractions may also attract attention to a particular vehicle. However, once attention is drawn, police officers are taught to ask themselves a series of questions to detect a DUI violation:
- What is the driver doing?
- Do I have grounds to stop the vehicle?
- How does the driver respond to my signal to stop? Prior to this point the blue lights and video equipment have been activated. From here on presume everything the driver says and does is being video-taped as evidence.
- How does the driver handle the vehicle during the stopping sequence?
After the vehicle is stopped the driver may experience a delay in the officer approaching the vehicle. The officer is following procedures in calling in the tag number and description of the vehicle to make an initial determination if the vehicle is stolen, and who the owner is. This delay can be used to your advantage by taking the opportunity to locate and retrieve your driver's license, registration and Driver's Rights Statement which should be located in the same place as your registration card and proof of insurance. Realizing you are being video-taped you can see the advantage of presenting these documents without the "fumbling" that the officer expects and will likely report. Make that video work for you!
Phase 2: Personal Contact with Driver
This phase is the part of the detection process where the officer attempts to make personal contact and more closely examine you and your personal and physical appearance. The officer will wish to carefully put himself in a position to make discreet observations of you while in the vehicle or as you exit.
After approaching the car, the officer will usually ask you to roll down the window or step out of the vehicle. These requests are often made in the form of a command. That is because the officer wants to take immediate control of the scene, including your cooperation. What will follow in sequence depends on the officer achieving this level of control. It is this attempt at control by the officer that must be carefully and politely resisted for the camera.
Those who have allergies, colds, coughs or physical ailments should, at least, ask to stay in the relative safety of the heated or air-conditioned vehicle while the officer's questions are answered. If said loud enough, these requests might be heard on the video tape recording. The question that predominates in this phase is: should you exit the vehicle? Sometimes the officer will make this decision immediately and in that case he is just bypassing his training and going straight for the arrest, so be prepared … you are about to go to jail. This is an officer who will jump to the arrest if he senses a lack of cooperation, so use it to your advantage, since you know the probable outcome already. The camera is rolling!
The officer is likely to insist you exit, and he is within his rights to ask, but that doesn't mean you have no rights or are prohibited from complaining for the camera. If your joints ache, COMPLAIN as you exit! I promise you the notes he will take will indicate that the driver was unsteady on his feet or actually staggered or needed assistance upon exiting the vehicle. Drivers often have good reasons for such observations but do not want to sound complaining and remain quite about such problems.
Expect to have glaring flashlights directed at your eyes. Expect to be asked to walk to the rear of your vehicle. This is where the camera can best pick up every mistake you make so the tape can be used against you. Use that camera yourself to your advantage. If it's cold, SHIVER and complain and keep yourself warm any way your hands will help. Expect other vehicles to speed by from a close distance, creating wind, dust and breathing or eye problems. Go ahead and rub your eyes and show how these events affect you, your physical and mental condition and state of mind. If you are afraid, tell the officer. Ask him to move you to a safer location or indoors someplace nearby. The officer won't do it, but that reasonable request will be recorded.
Expect to have the officer ask you questions about consuming alcohol. NEVER admit to consuming any at all. Even if the officer says he smells it, just point to the written statement you have handed him. In other words, say nothing that will not help you on the video. Where you have been, what you have been doing or where you are heading, is not one of those things that will help. Besides that information is not relevant to the stop. The officer just wants you to answer so he can say your speech was slurred. Remember … most everything the officer needs to know is contained in the papers you have handed him.
Phase 3: Field Sobriety Testing of Driver
Law enforcement officers are required to ask for, and you are required to provide, your driver's license and proof of insurance. You should also present your Driver's Rights Statement at this time. If an officer detects an odor of alcohol, it is likely he will ask you if you've had anything to drink. He wil then ask you to perform field sobriety evaluations. These usually include the three standardized tests which consist of:
- The Horizontal Gaze Nystagmus (HGN) Test
- The One Leg Stand
- The Walk and Turn Test
The HGN Test is the most accurate, assuming it is properly administered and properly scored. If all three are given properly and scored properly, and if you fail all three, then an 84% chance exists that your blood alcohol level is .10 grams % or higher.
If the three are not given or scored properly, they mean virtually nothing. The HGN is said to be the only one of the three the Georgia Court of Appeals considers scientific. It also happens to be the one least likely to be administered and scored correctly by an officer. If you have a trial in which the HGN Test is admissible, real medical experts are available to give real scientific testimony on the HGN Test. Make sure you ask your attorney about this valuable defense.
Your defense lawyer will want to question the arresting officer closely about his/her Field Sobriety Training, as well as how he/she administered and scored the roadside field tests. Courts rely on these evaluations to determine whether or not the officer had probable cause to arrest you for DUI.
Many officers make mistakes both in the administration and the scoring of these tests. These mistakes diminish the value of the tests for determining probable cause to arrest. Usually officers do not bring their field sobriety training manuals to court. A good DUI lawyer will have certified copies of the arresting officer's own manuals to use against the officer in court.
To further test you, officers like to ask you to recite the alphabet, touch your index fingers to your nose, count your fingers and recite the day, date, and time. None of these tests have any scientific validity for determining whether or not someone is under the influence of alcohol.
Another roadside test commonly administered is the Alcosensor®. This is a handheld device into which the officer inserts a clean mouthpiece and requests that you blow until he tells you to stop. This device gives a three-digit readout on your breath alcohol content. Although the actual test results are inadmissible in court, the officer can, upon laying the proper foundation for such evidence, testify as to whether the results were positive or negative.
Now here is the important part. You are not required to take any of the above-mentioned roadside field tests. You are under no legal obligation, and no legal penalty attaches for declining to take these tests. Unless you were coerced or promised any benefit for taking the tests, they are voluntary.
When asked to take these tests, keep quiet, point to your Driver's Rights Statement and shake your head no. Police officers use these tests to develop probable cause to arrest for DUI. Why would you take a test from an officer who might not even be properly trained, especially when no legal penalty attaches for refusing to take them? Don't help the guy trying to put you in jail!
Phase 4: Preliminary Alcohol Screening
Officers are taught to apply this step after conducting the field sobriety testing, so as to NOT prejudice their impressions of these validated tests, when properly performed. However, many officers do not follow their training and many ask for this screening much earlier in the sequence.
A serious common error for the drinking driver is agreeing to blow into the little breath alcohol measuring device the officer displays to you. As the officer asks you to blow into this device like the one shown here he or she will say it is "just to make sure you are all right to drive."
This little device may come in different shapes and sizes, but they all are about the size of a pack of cigarettes. Many have a electronic screen showing of approximate BAC and most all are unreliable to the point that the numerical results are inadmissible in court. Don't let that fool you into actually blowing into it, however. The officer will use the results for his own decision to arrest and he can testify that the results of the test were positive or negative for alcohol. It will become cumulative evidence with other personal manifestations, field sobriety tests, and driving observations, so don't help the officer convict you. Remember, these tests are all voluntary. Just say no, politely.
Phase 5: Arrest or No Arrest?
So far we have covered all the basic steps. Phase 1 dealt with the vehicle in motion and the driver's operation of the vehicle. Phase 2 covered the personal contact with the driver and the observations the officer made dealing with the way the driver looked and acted as observed prior to any pre-arrest screening by the officer. Then Phase 3 involved the field sobriety testing and the Phase 4 took care of the preliminary breath testing of the driver.
If all that was done according to the plan the officer directed there is little room left for any decision other than to arrest this driver for DUI. The officer has never been instructed to record in writing any positive factors, behaviors or impressions of the driver. The form of the report is designed only to report on negative element the driver exhibits. The Field Sobriety tests are nearly impossible for any person to adequately perform the first time without practice, even under ideal conditions, much less under the stress of an actual police encounter.
So should anyone imagine why an officer would not find probable cause to exist to warrant an arrest of the driver who voluntarily performed and submitted to these tests? Most people would say, "Well, I didn't know they were all voluntary and that I didn't HAVE to do them!!" Luckily you, the reader, now know. That's the best case scenario for the police. The worst case is where they arrest you for not cooperating and giving them the evidence they need to get an easy conviction. You do the math. The driver usually gets arrested either way. One way is with a lot of evidence. The other is with very little. DUH?
As far as the arrest itself, it's simple. The officer will conclude that after all of the observations, three or more field sobriety tests and a preliminary breath screen, that sufficient evidence exists for probable cause to arrest for one of several different types of DUI violations. He will choose for now the violation of being a "less-safe" driver. The officer will inform the driver that he or she is under arrest for DUI. This will be followed, or immediately preceded, by placing the driver in handcuffs for the officer's protection. The driver will likely be read the "implied consent warning," but not the "Miranda warning" so many driver's expect to hear but seldom, if ever do.
Following this reading the driver is often placed in the back seat of the police car and transported to jail where the breath testing equipment is located. In some cities the police will send a specially equipped police van to perform these tests. This van is often present where roadside "safety checks" are employed by the police. The officer expects that the official test of your breath will confirm his initial impression that he was right in arresting the driver in the first place. This is why an independent test should be requested unless a serious accident has occurred, the driver is under 21, a commercial driver or this arrest would be the second or more DUI or in the past five years, in which the driver might consider refusing any and all testing.