A law enforcement officer is required to have a reasonable, articulable suspicion that a crime has occurred prior to being authorized to make a traffic stop (the road block is an exception).
1. Particularly, when it comes to DUIs, many law enforcement agencies have DUI task force officers who patrol the streets and highways late at night into the wee hours of the morning looking for drivers who may have consumed alcohol (although it is not against the law to drink and drive). It is, ,however, against the law to drive under the influence of alcohol to the extent it is less safe for you to do so.
DUI task force vehicles are typically equipped with video and audio recording equipment. The video camera is typically mounted on the dash board of the vehicle and records continuously. The video permits the officer to record the driving behavior of the suspected DUI driver prior to the stop, and the video also permits the officer to video tape the field sobriety evaluations as they are performed by the suspected driver, as well as, any other outward manifestations such as staggering, unsteadiness on his/her feet, the necessity to lean on the vehicle for balance, for example.
The DUI task force officer typically has a microphone attached to the front of the uniform which permits the officer to record all of the conversation, statements made by the suspected driver, as well as, the driver’s manor of speech (slurred, thick tongue, talkative, argumentative behavior, crying, etc.). Accordingly, anything the driver does or says will likely be recorded and may be used against him/her in furtherance of the prosecution for the offense of driving under the influence. Thus, in this article I would like to address the evidence and subsequent prosecution of DUI cases.
As stated above, first, the officer must have a valid reason to make the traffic stop. Again, the exception would be the “roadblock” (roadblocks were once considered “unconstitutional” in many jurisdictions; however, roadblocks are now lawful in most, if not all, jurisdictions).
Typical reasons for a traffic stop leading to a DUI arrest include: failure to maintain lane, accident, weaving, speeding, no turn signal, driving without headlights, driving with high beams on, driving on the wrong side of the road, driving in the wrong direction on a one-way road, etc. Although there are many reasons given by law enforcement officers to make a traffic stop leading to a DUI arrest, not all reasons actually support a conviction for driving under the influence of alcohol. For example, in the Atlanta metropolitan area, the speed limit for most highways is 55 mph. However, in the Atlanta area, most drivers drive somewhere between 65 and 80 mph on the highways. Speeding, in and of itself, is no evidence of driving under the influence, nor is failing to use a turn signal, or being stopped at a road block.
Thus, assuming one is stopped for speeding, no turn signal or stopped at a road block, at the time of the stop, there is likely no reasonable articulable suspicion of driving under the influence. Of course, however, the DUI task force officer in his/her mind frequently assumes the driver has consumed some amount of alcohol if the stop occurred late at night or very early in the morning.
Once the DUI task force officer states the reason for the stop, asks to see the driver’s license and proof of insurance, the next question will likely be “Have you had anything to drink tonight?”.
And whether the response is “yes” or “no”, the officer will likely ask the driver to exit the vehicle and walk to the front of the patrol vehicle. Keep in mind, the microphone is recording the conversation. The video is recording the actions of the driver.
If the driver’s speech is slurred, if the driver speaks with a “thick tongue”, if the driver is talkative, cries, or is argumentative, this is evidence the State may use in furtherance of the prosecution. On the other hand, if the driver limits any conversation with the officer, the amount of evidence available to the State is minimized.
Once standing in the front of the patrol vehicle (where the video recording continues), the officer will then ask the driver whether he/she is willing to submit to field sobriety evaluations. Field sobriety evaluations are voluntary. If the driver submits to the field sobriety evaluations, the officer will document what he/she perceives to be clues which may be an indication of driving under the influence. If the driver refuses to submit to any field sobriety evaluations, the State will not be able to introduce clues documented from performed field sobriety evaluations.
The officer may request that the driver submit to an alcosensor evaluation. An alco sensor is a handheld device which detects the presence of alcohol on a person’s breath. In court, the officer would only be able to testify as to whether the alcosensor was positive or negative for the presence of alcohol. If the driver refuses to submit to an alcosensor evaluation, the State will not be able to introduce evidence of a positive test result at trial.
Up to this point, a refusal to perform field sobriety evaluations or submit to an alcosensor do not impact the driving privileges (without a conviction). However, once the officer places the driver under arrest, the officer is required to inform the driver of his/her implied consent rights. Typically, the officer reads the implied consent rights to the driver (after placing the driver under arrest) while seated in the patrol vehicle or upon arrival at the jail. The officer then asks the driver whether he/she will submit to a state-administered chemical test of his/her blood, breath or other bodily substances. This is the official state-administered test. A refusal to submit to this test may result in a suspension of the Georgia license or privilege to drive in the State of Georgia for one year. If the driver refuses to submit to the state-administered chemical test, the State will not have the test results to present at trial to support its case.
When one considers all of the above, the decision as to whether to submit to any of the above evaluations or tests (which only the driver can make) should first be made after a careful evaluation of the reason for the stop, i.e., what was the driving behavior leading to the stop? Was it speeding or was it failure to maintain lane? If the stop was a road block or a speeding or failure to use a turn signal, then, without more, the State would not have much evidence to support a DUI conviction.
One common mistake occurs where a driver engages in extensive conversation with the officer (which is recorded), then submits to an alcosensor evaluation, then performs field sobriety evaluations, but refuses the official state-administered breath or blood test. In doing so, the driver has already provided a good amount of evidence against himself/herself. If the evidence on the video/audio is damaging against the driver, the refusal to submit to the state-administered breath test may not result in an acquittal or reduction of the DUI charge.
In the event that there is not much evidence for the State to use in its prosecution, many prosecutors will reduce the DUI charge down to a “reckless driving” charge. In doing so, most prosecutors will still insist on the driver attending DUI school (also known as “Risk Reduction”), perform community service hours, obtain an alcohol evaluation (and any treatment if recommended), and attend one Mother’s Against Drunk Drivers (MADD) victim impact panel.
Again, on a refusal, the driver faces the possibility of a one-year suspension. Unfortunately, the law does not permit a driver to have an attorney present at the time of the traffic stop prior to the performance or refusal. Thus, the driver is the only individual who must decide whether or not to submit to the requested evaluations and/or tests. One should also consider the past driving history (re: DUIs).
For more information or representation following a DUI arrest, contact: Anthony Overton Van Johnson & Associates, P.C. at 678-882-7355, or e-mail: firstname.lastname@example.org for a free consultation.