As noted in the previous entry, a good criminal defense attorney handling a DUI, DWI, or OWI case in Washington, D.C. will challenge the prosecution’s case at every possible step along the way.
The attorney might contest the legality of the stop itself. He or she might challenge the police officer’s observations after making the stop and subsequent decision to further detain the driver on suspicion of DUI, DWI, or OWI. The attorney could challenge both the process and results of any field sobriety or chemical tests, if administered. The attorney will explore the possibility of a “diversion” program for the defendant, particularly if the defendant is a first-time offender. Finally, working on a separate track with the D.C. Department of Motor Vehicles, the lawyer will seek to prevent the driver’s operating privileges from being suspended or revoked.
Today’s entry focuses on the second step of this process; namely, challenging the police officer’s initial observations of the driver and any decision, after the initial stop, to further detain the driver under suspicion of DUI, DWI, or OWI.
The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. It also requires that all warrants be supported by a finding of probable cause.
A car stop is a seizure. In order to withstand judicial scrutiny, a warrantless car stop must be based on the police officer’s reasonable suspicion of a Motor Vehicle Code infraction or some other type of criminal activity. Even if the initial stop is justified, the prosecution must demonstrate that each subsequent decision by the police officer to prolong the person’s seizure be supported by reasonable suspicion or probable cause.
Assume, for the sake of this entry, that the initial stop was perfectly legal. Maybe the driver made an illegal turn or was missing a brake light on the back of his or her car. The police officer was therefore justified in pulling the driver over. Without more, however, the officer should write the driver a ticket and send the driver on his or her way.
What constitutes “more”? Committing a traffic offense does not mean that a person is intoxicated. Many perfectly sober people violate a section of D.C. Motor Vehicle Code every day. Fumbling for one’s license and registration does not mean the person is intoxicated. Many people are nervous when confronted by a person with authority to lock them up. Red or glassy eyes could just as easily be the result of allergies, tiredness or some other physical condition as an indication of intoxication.
Even the smell of alcohol on the person should not, in itself, be enough to prolong the detention. After all, it is not against the law to drink and drive in D.C. It is only illegal if the drinking has led to impaired driving ability through intoxication or if, in the case of the per se offense of driving while intoxicated, the person’s blood alcohol is above the statutory limit. One or two alcoholic beverages spaced out over a certain length of time should not put even a small person over this limit.
In short, a good criminal defense attorney will challenge the prosecution’s case on each and every one of the factors which cumulatively could lead to the court’s conclusion that the police officer had reasonable grounds to move on to the next phase of the investigation. The attorney will also compare the officer’s oral testimony with the police report the officer completed on the day in question. Is the officer adding things that were not included in the report, or embellishing on the observations that are included?
The attorney will also emphasize observations by the police officer suggesting non-intoxication or bring out items that are NOT included in the report. The driver was in fact licensed and produced his/her operating permit? The driver was polite and cooperative? The driver complied with all of the officer’s instructions? Etc. All of these observations can be used to counterbalance the prosecution’s case of intoxication.
Without the court’s “totality of the circumstances” determination of reasonable grounds for continuing the investigation, any further detention of the driver for the purposes of, for example, a field sobriety test or breath test, would violate the driver’s Fourth Amendment rights. The court should thus grant a motion to suppress any evidence resulting from this illegal activity, thereby preventing the prosecution from using the evidence against the defendant at trial.
Future posts will address potential challenges during later stages of the investigation, including the administration of field sobriety tests and breath, blood or urine tests.