Trial Transcript: Initial Observations/Probable Cause to Arrest in DUI Case

Q:  You testified that my client stumbled as he got out of the car that night.

A:  That’s right.

Q:  What do you mean by “stumbled?”

A:  I don’t know.  He stumbled.

Q:  Did he fall?

A:  No.  He kind of swayed.  And he put his hand on the car for support.

Q:  This was as he was getting out of the car?

A:  Yes.

Q:  But he was okay once he was out of the car.

A:  Yes.

Q:  There was no more stumbling or swaying once he got out of the car.

A:  No.

Q:  And you note on your report that he did not have a problem with his balance.

A:  That’s right.

Q:  You don’t know how long he had been sitting in the car before you pulled him over, right?

A:  No.

Q:  So you don’t know whether his legs were stiff from sitting.

A:  No.

Q:  Did you decide to arrest him at that point?

A:  No.

Q:  You testified also that his speech was slurred.

A: Yes.

Q: And that his eyes were red and watery.

A:  Yes.

Q:  You had never met the defendant before that night, right?

A:  No.

Q:  So you don’t know how he normally speaks, do you?

A:  No.

Q:  You don’t know what time he got up that morning.

A:  No.

Q:  And this was 2:15 am, right?

A:  Yes.

Q:  You don’t know if he was nervous.

A:  No.

Q:  You don’t know if he wears contact lens.

A:  He told me before the HGN that he was wearing contacts.

Q:  But at the time he got out of the car and you made your initial observations, you didn’t know if he was wearing contact lens.

A:  No.

Q:  You don’t know if he has allergies.

A:  No.

Q:  Did you decide to arrest him at this point?

A:  At what point, sir?

Q:  At the time he got out of the car and he stumbled and you observed that his eyes were red and watery and his speech was slurred?

A:  I also smelled alcohol on his breath.

Q:  Did you decide to arrest him at this point?

A:  No.  It is standard in this type of case, based on my observations, based on what I knew at the time, to administer the [Standardized Field Sobriety Test].

Q:  So it is fair to say at this point, you did not have probable cause to arrest my client.

A:  I’m sorry.  Could you repeat that?

Q:  Is it fair to say that at the time you got him out of the car before you administered the SFST you did not have probable cause to arrest my client.

A:  Yes.

Q:  So your decision to arrest my client was based on his performance during the standardized field sobriety test?

A:  It was a combination of things.  It was my initial observations, his performance on the SFST –

Q:   — But you did not have enough from the initial observations to arrest him –

A:  — It was a combination of things.

Q:  I am talking about the time period before you administered the SFST. Based on your initial observations, you did not have enough to arrest him.

A:  No.

Q:   If he had passed the standardized field sobriety test, you would have let him go?

A:  Yes.

Q:  And in fact, my client was polite and cooperative with you.

A:  Yes.

Q:  He had no problem producing his license and registration.

A:  Yes.

Q:  He answered all of your questions.

A:  Yes.

Q:  His pupils were normal.

A:  Yes.

Q:  He didn’t hiccup or belch.

A:  Not that I saw.

Q:  But if he had hiccupped or belched, you would have noted that on your report.

A:  Yes.

Q:  You didn’t find any alcoholic containers in his car.

A:  No.  But he did tell me he had been drinking earlier that night.

Q:  But you didn’t find any evidence of that drinking in the car.

A:  No.

Q:  And you don’t know what time he had been drinking.

A:  No.

Q:  You don’t know what time he had his last drink.

A: No.

Q:  You don’t know what he had been drinking.

A:  No.  I didn’t ask him.

Q:  And you don’t know how much he had to eat with that drinking.

A:  No.

Q:  Let’s turn to the SFST . . .