The DUI Nightmare

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

You're driving home after enjoying a spectacular evening with friends on Miami Beach. While nearing your home, a police officer activates his overhead lights and pulls you over. After ordering you out of the vehicle, he requests that you perform some "Field Sobriety Tests." After complying with his requests, your world as you know it changes as he suddenly places handcuffs tightly on your wrists and informs you that you're under arrest for Driving Under The Influence (DUI). As you're sitting in a tiny jail cell overflowing with some of the most vile, dangerous, and impaired inmates, you wonder how this could have happened. You're certain that you consumed no more than a couple of drinks.

Unfortunately, this hypothetical nightmare has become too many people's reality. It begins with an officer who may have been "fishing for DUI's." "Fishing" is the term used by cops who admit that they will frequently follow vehicles leaving bars and/or restaurants in order to "catch" drunk drivers. The law now permits them to follow a vehicle indefinitely in order detect the most minor infractions. The problem is that when a fisherman casts out his big net in order to seize tuna, invariably they wind up catching some innocent dolphin.

Almost always, officers claim that they observed the driver to have the "strong odor of alcohol," and "bloodshot watery eyes." When firmly questioned, officers will admit that "strong" simply means that they were able to detect the smell on the defendant, not that they consumed a large quantity. Furthermore, it's difficult to find anyone, sober or not, who doesn't have some degree of bloodshot and/or watery eyes during evening hours.

The primary problem with the roadside tests is that the area on which the suspect performs the tests was selected simply by wherever the driver happens to stop. That surface, which is curved to allow for proper water drainage, often contains debris, cracks and uneven areas. The officer's lights, passing motorists, and less then ideal weather conditions may also affect the results. There are those who because of factors like age, weight, lack of coordination and prior injuries, could never pass the tests even if they were sober.

Even those in good physical shape may learn that they "failed" the "finger to nose test," for instance, even though they touched their finger to their nose 6 out of 6 times. Officers will allege that the defendant failed to follow instructions because they used the "pad" of their finger instead of the "tip." Also, officers will often allege that a defendant "stepped off the line several times," even though the "line" on the road was an imaginary one.

Many defendants who are deemed to have "refused" to blow into the machine, simply requested to consult with an attorney prior to blowing. Since officers are not required to permit contact with a lawyer at that point, arrestees lose their driving privileges for a year if they persist in their request and don't blow.

For those that do blow, the breath reading may be affected by a number of factors other then the consumption of alcohol. For example, if a suspect burps and/or regurgitates prior to blowing into the machine, he may bring up "mouth alcohol," which could result in an artificially high reading. The reading could also be affected by other factors, such as wearing dentures, using an asthma inhaler, or suffering from diabetes.

Hopefully, you are never pulled over and investigated for drunk driving. The best way to avoid that scenario is by never getting impaired and driving. Unfortunately, each day there are individuals who, for reasons other then alcohol and/or drug consumption, are arrested for DUI by officers. Those unlucky few are forced to endure a living nightmare.