Almost all DUI arrests begin with a police traffic stop. Often, the difference between a conviction and an acquittal in a drunk driving case hinges on what takes place on the side of the road leafing up to an arrest. Police interpretation, vehicle searches, field sobriety tests, and breathalyzers could all factor into whether a defendant faces penalties for a DUI.
Considering the importance of these traffic stops, it is important that all motorists have a full understanding of their rights and responsibilities during Fairfax DUI traffic stops. Contrary to popular belief, drivers do not have to consent to a search, do not have to agree to a field sobriety test, and do not need to answer police questions about their destination, how much they have had to drink, or any other questions.
To legally pull someone over for a DUI stop, all that an officer needs to look for is reasonable, articulable suspicion that the individual is committing some type of violation of law. In some cases, an officer could suspect a driver of DUI and not have enough reason to actually pull them over. If that officer sees any kind of violation, however, such as that the lights on their license plate are out, the officer can pull the driver over on that pretense and then from there initiate a DUI stop because they detect the smell of alcohol.
Before a person starts driving, they should make sure their lights work on both of the front headlights, make sure that their back brake lights work, make sure that their license plate lights work, make sure that their registration is up to date, and make sure they use their turn signals when switching lanes. Any of those violations could allow an officer to pull them over, and then once they are pulled over, the officer can seamlessly flow into a DUI stop.
A Fairfax DUI attorney could help a defendant who was pulled over illegally. A lawyer could question the police officer’s basis for the original stop and motion for the driver’s charges to be dismissed.
The typical DUI stop will, of course, start with license and registration. The officer might ask, “Have you had anything to drink tonight?” If the driver says yes, it allows the officer to prolong the stop in order to investigate for a DUI. Similarly, the officer might say, “I smelled some alcohol. Are you sure you have not had anything to drink?”
Then the officer will likely try to conduct field sobriety tests with the person. In most cases, they would walk the driver around to the back of their vehicle and in front of the police vehicle, and then have them do a one-legged stand, a walk-and-turn, potentially the horizontal gaze nystagmus test, potentially alphabet tests, counting tests, finger-touch tests, etc.
The typical stop usually evolves from an initial conversation and to the officer asking the individual to step out of the car to perform a field sobriety test. Their answer to an officer who asks them, “Would you mind stepping out of the car for me?” should always be, “No, I do not want to step out of the car. Are you telling me I have to? Am I free to leave or am I detained?” Those should be their responses to the officer. They should never agree to step out of the car.
In most cases, the officer will want to search the vehicle, especially if they think the person is under the influence of drugs or if they smell drugs. The driver should say, “I do not consent to you searching my vehicle.” A person does not have to consent to a search after a traffic stop for the officer to be able to search a vehicle. In fact, it can help the defense if a person does not consent.
Even if a driver thinks that the officer is legally able to conduct a search, the officer might be bluffing. They might say, “I already have probable cause to search. Do not make this more difficult.” Nonetheless, a driver should respond, “I still do not consent.” If the officer has probable cause, then they will conduct the search anyway. The second that a driver consents to a search, however, they give up their right to fight the search in court, which could seriously harm their case.
The right to consent or not consent does not change after a person is arrested. They should always say, “I do not consent.” There are times that an officer can conduct a search anyway, but refusing to consent allows the attorney to figure out whether or not the officer followed the law when they overrode the refusal.
The biggest mistakes to avoid in a DUI stop are giving any kind of information whatsoever to the officer that a driver is not required to give, including where they are coming from, where they are going, how many drinks they have had, questions about where they live, questions about any contraband in their car, etc. Those questions are designed to trip them up. If they are nervous, for example, they might stutter, or they might stammer, or they might slur their words, and then the officer will try to use that to claim that they are driving under the influence.
A person should give their license and registration and ask the officer if they are free to go. If not, and the officer will say that they are being detained, the attorney will have more to work with.
Many drivers have a misleading understanding of Miranda rights. Miranda rights only prevent forcible interrogations. Interrogations only happen after the person is under arrest, and even then, they only happen when the officer asks the arrestee questions that are designed to elicit an incriminating response. Just because an officer talks to a driver does not mean that Miranda applies to their situation. Therefore it is important to say, “I do not want to make any statements without my attorney. Am I free to leave or are you detaining me?”
During a DUI stop, a driver has the right to ask the officer why they are being stopped. They have the right to say, “I do not want to make any statements,” and, “I do not want to do the field sobriety test.” They have the right to refuse any searches of their vehicle or of their person, as well.
After an arrest, an arrestee has the right to remain silent. Officers must grant them the ability to speak with an attorney or to make a phone call within a certain period, but not immediately after the arrest. Usually, the phone call will be made available after they are processed and in front of a magistrate.
Field sobriety tests are conducted differently depending on which law enforcement agency is making the stop, but all of them base their tests on the NHSTA standards, which is the National Highway Safety and Traffic Administration.
The NHTSA tested each of these tests in a laboratory setting, on level ground, in bright lights, with willing volunteers. They looked at the correspondence between the test itself and the potential level of alcohol in somebody’s blood. The tests are specific to alcohol, to BAC levels, and are only indicative of whether or not somebody has a 0.10 or above; they are not indicative of anything else, and even then, the tests are not 100 percent accurate.
The best test is 72 percent accurate and the worst test is a low 60 percent accurate even when performed correctly in a laboratory setting, so taking that into consideration and applied to the side of the road involving somebody unfamiliar with officers and unfamiliar with the tests who potentially has other types of physical impairments, nervousness, or does not understand the directions—it shows that the tests are not reliable.
Agreeing to the field sobriety tests gives the police more evidence while doing little to support a driver’s innocence. Perhaps one in the hundreds of cases of DUIs that we have fought featured somebody who was able to complete the test so perfectly that the judge found them not guilty despite their blood alcohol level at the station.
There are no consequences for refusing to perform the field sobriety test except that it might annoy the officer.
The horizontal gaze nystagmus is a process of field sobriety test in the state of Virginia. In the horizontal gaze nystagmuss officers look for the tracking of the eyes. They track the subject’s pupil as it moves across the eye to the next side. As it moves from one side to the other, they look for the jerking of the eyeball against the side of the eye.
Theoretically, if an officer does it correctly, holds the pen at the correct 45 degrees, moves it in a steady, constant speed, and is a certain distance away from the person’s eye, it will only jerk horizontally if the person is under the influence of alcohol. The vertical gaze nystagmus is similar; it goes up and down instead of side to side, and involves the jumping of the eyeball to show that the person has drugs in their system.
The problem with the horizontal gaze nystagmus or the vertical nystagmus is that there are so many other conditions and elements that could cause this type of reaction that judges in Fairfax do not usually allow to come into evidence except to show whether or not the person was able to follow directions, was able to keep their head still, was able to understand and interact with the officer appropriately during the test, etc.
If a driver is pulled over on suspicion of DUI, they should refuse this test. If they do not refuse the test, they have their lawyer fight to have the test results barred as evidence.
The walk-and-turn test, also known as the nine-step walk and turn, is a test that essentially involves somebody receiving directions from the officer and standing in the starting position with one foot in front of the other on an invisible or visible line. Sometimes, officers use the line on the side of the road that they have somebody walk on. Sometimes, it is an invisible line; they ask someone to imagine it.
Officers are looking for a series of nine steps out and back, heel to toe, and the subject must count out loud as they are doing them, their hands at their side. Once they get to the end of the nine steps, they do a series of turns, almost like a pivot move, and then they come back on that same line while counting out loud.
The responding officer is looking to see if the subject loses their balance, if they step off the line, if they are not heel to toe the entire time, if their arms go up, if they failed to count, and if the turn is incomplete.
The one-legged stand test is when an individual takes their right foot or their left foot and they raise their foot six inches off the ground and look at their foot while counting, until the officer tells them to stop. They need to keep their hands at their side, they need to be able to count, and they must be able to not sway back and forth, hop, or put their foot down for however long the officer wants them to do that.
Usually, it lasts somewhere between 20 and 30 seconds. It is very difficult to do even for somebody who has not had anything to drink. This can be used as evidence against a defendant
If you have been arrested following a Fairfax DUI traffic stop, you should contact an attorney as soon as possible. Certain factors of a traffic stop may influence your case and make a difference between conviction and acquittal. For example, if a police officer did not have sufficient suspicion to pull you over in the first place, or if they conducted a search of your vehicle without your consent or probable cause, a lawyer could work to have evidence barred or your case dismissed.