DWI enforcement by police forces typically involves three elements: 1) a vehicle "stop;" 2) establishing probable cause to arrest; and, 3) chemical test for alcohol and/or drugs.  There are legal requirements and standards that govern all three elements and are used to establish whether the actions of the police were lawful.

 

Vehicle Stops

 

The vast majority of vehicle stops that result in a DWI arrest are made as a result of an alleged violation of the traffic law.  The alleged violation can be something as serious as leaving the scene of an accident or driving at high speed; or they can be for something as inconsequential as tossing a cigarette butt out of a car window.  It is lawful for a police officer to stop a vehicle (stopping a vehicle is a "seizure" of the person) as long as the officer has a "reasonable suspicion" that a law has been violated.  It does not require the officer to believe that a crime has been committed, it simply requires a reasonable suspicion that any law has been violated.

While police officers will usually not bother to stop vehicles for minor violations like littering or not wearing a seatbelt, that attitude changes after about 10:00 p.m., especially on Fridays and Saturdays.  During late evening or early morning the police assume that many drivers have been drinking and they are looking for any excuse to stop them.  Some officers may even be assigned to a "DWI patrol" the specific purpose of which is to make DWI arrests.  It is not uncommon for officers to park outside of bars late in the evening and follow people who leave the bar until they observe some minor traffic violation.

 

The only type of a vehicle stop that does not require reasonable suspicion of a law having been violated occurs when the police are conducting a so-called "sobriety checkpoint."  There are a number of legal issues regarding the proper conduct of the police in operating a checkpoint operation that can render a DWI arrest unconstitutional and result in the case being dismissed.  Anyone arrested for DWI at a checkpoint should consult a qualified DWI attorney immediately.

 

Police will usually ask drivers if they "have been drinking" and will use confirmation of that as part of their basis to proceed with more intrusive examination of suspected drivers.  They will also make note of any admissions and prosecutors will seek to have those admissions admitted as evidence against the driver.

 

The only type of a vehicle stop that does not require reasonable suspicion of a law having been violated occurs when the police are conducting a so-called "sobriety checkpoint."  There are a number of legal issues regarding the proper conduct of the police in operating a checkpoint operation that can render a DWI arrest unconstitutional and result in the case being dismissed.  Anyone arrested for DWI at a checkpoint should consult a qualified DWI attorney immediately.

 

Police will usually ask drivers if they "have been drinking" and will use confirmation of that as part of their basis to proceed with more intrusive examination of suspected drivers. They will also make note of any admissions and prosecutors will seek to have those admissions admitted as evidence against the driver.

 

Probable Cause to Arrest

 

Once the police have stopped a vehicle if they have the slightest evidence that the driver has been drinking they will attempt to find "probable cause" to arrest them.  Probable cause is a legal standard the means a police officer must have evidence sufficient to convince a reasonable person that a crime has probably been committed.  On a DWI arrest the police will typically cite having smelled an "alcoholic beverage" on the drivers breath, observed watery or bloodshot eyes, slurred speech and impaired motor coordination.  They may also cite driving behavior such as speeding, weaving, passing red light/stop sign as indications of intoxication.

 

Obviously, these are all very subjective and given that the officers have generally never met the driver before its more than a stretch to say that the drivers eyes, speech, motor coordination is indicative of anything other than their normal condition.  Nonetheless, they will almost always cite all of these factors and rely on them as a basis to request the driver take the so-called "field sobriety tests."  

 

Field Sobriety Tests  

 

Almost all drivers suspected of DWI will be asked to perform the so-called "field sobriety tests" by the police.  What these "tests" actually prove is very debatable.  Only three of more than 10 possible "tests" have even a minimal basis in science as being predictive of intoxication (its is more accurate to refer to these as "exercises" rather than "tests").  Three of the them have been promoted by the National Highway Traffic Safety Administration (NHTSA) which claims that scientific research has show that when properly administered they can accurately identify intoxicated drivers as often as 80% of the time.  The science behind this claim is very debatable, but more important is the fact that few police officers actually administer the exercises in accordance with the procedures that NHTSA has promulgated (this is important because NHTSA has often stated that they are only valid when administered in strict compliance with procedures developed by NHTSA).  

 

The three NHTSA approved exercises are: 1) Horizontal Gaze Nystagamus (looking for jerky movement of they eye which can be caused by intoxication along with 47 other possible causes); 2) Walk and Turn (taking nine steps, heel to toe, along a line then turning and taking nine back, police are looking for feet not touching, deviation from the line, miscounting steps and losing balance); and, 3) One Leg Stand (standing on one leg while counting, police are looking for miscount, hopping, putting foot down, losing balance, etc.).  All other sobriety tests are without any, even remote, scientific basis that they are predictive of intoxication.  Any suspected DWI driver who "fails" more than 2 of the exercises will be considered intoxicated by the police.  The vast majority of people asked to perform the exercises will be alleged to have "failed" and be arrested.

 

Preliminary Breath Test

 

Aside from the sobriety exercises police will often ask a suspected DWI driver to take a "preliminary breath test" or "PBT."  This is done using a hand held "breathalyzer" that a driver will be asked to breath into. These devices are so inaccurate that any measurement of how much alcohol is in a driver's breath is not permitted to be used in evidence against the driver at trial.  Rather, the only legal purpose these devices have is to ascertain if there is any alcohol vapor in the breath of a subject.  

 

Many people asked to take a PBT will often confuse this test with a "chemical breath test" which is administered later (at a police station) the results of which can be used as evidence against the driver at a trial. A refusal to take a PBT can result in a minor traffic ticket being written.  There are no other implications of refusing it. Drivers often don't understand why they are being asked to take a second breath test at a police station.  Again, the reason for this is that the PBT can't be used as evidence against the driver and the "Chemical Breath Test" at the police station can.

 

Chemical Tests

 

Once an arrest has occurred the police will typically transport the driver back to a police station or hospital for a "chemical test" of their breath, urine or blood.  Prior to administering such test the police will inform the driver that the are being requested to submit to such a chemical test and if they refuse their driver's license can be revoked for 1 year.  Simultaneously the will also read a driver his/her "Miranda Rights."  

 

The most commonly used form of chemical test is a "breath test" which involves a machine that measures the amount of alcohol vapor in a driver's breath and translates that into a percentage of alcohol in the driver's blood.  There are several different devices used by police agencies in NYS for this type of test. The science behind the machines, the accuracy of the machines and the possible sources of error in the result are all often contested by DWI attorneys when litigating a case.  For more information about how chemical breath test devices work and what their strengths and weaknesses are, click here.  For more information about "chemical breath test machines"  click here.

 

If a driver has been injured in an accident or the police suspect that drugs (or drugs and alcohol) are involved they may ask the driver to submit to a chemical blood test.  The testing of blood is done by a laboratory (often the NYS Police Lab) after the blood has been drawn. The actual blood draw is typically done at a hospital and must be done by a qualified person (usually a nurse) under the supervision of a physician.  Police officers will often carry a blood test kit that is intended for use in these cases.  The same sanctions for refusing a chemical breath test are involved with blood tests.  However, if the driver is not conscious blood can only be drawn by order of a judge.

 

Sometimes when the police believe that a driver is impaired by drugs they will request a urine sample rather than a breath or blood test.  The same rules regarding a refusal.  Urine tests are often requested when the police believe that marijuana is involved.  There are a number of very serious issues that arise when proof of intoxication or impairment involves the result of a urine test.  For more information about the science of DWI, click here.

 

 

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Law Offices of Glenn W. Magnell
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Unlike most attorneys I came to the practice of law as a second career. Prior to becoming an attorney I spent 20 years as a business executive, eventually running a large subsidiary of a Fortune 500 company. While those years in private business were challenging and rewarding, there came time that I wanted to do something different and more directly related to assisting other people. So, I left the business world, went to law school, passed the New York State bar exam and became a practicing attorney.  You can read my full bio here and meet our staff here.

 

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