Generally, in Kansas, a DUI can be proven either of 2 ways: (1) by showing that a driver submitted a blood, breath or urine test of .08 or greater within 2 hours of driving a vehicle, or (2) that a driver was so under the influence of alcohol or drugs that he or she was unable to safely operate a motor vehicle. If there is a breath test in a DUI case, that alone can be enough for a conviction, but breath tests can be attacked many ways. If there is no breath or blood test because a driver refused to take one, or an attorney has been successful at getting it thrown out, the prosecutor must try to get a conviction by proving beyond a reasonable doubt that the driver was too intoxicated to safely drive. This is usually done by putting on evidence that the driver was not driving safely, failed field sobriety tests, had bloodshot eyes, the odor of alcohol on his breath and had slurred speech. Other factors that can aid a prosecution for a traditional type DUI are open containers in the car, admissions to drinking by a driver or other statements against the driver’s interests. A lot of people put strong emphasis on the so-called field sobriety tests. However, as I have blogged about before, these can be dismantled fairly easily. It is not unusual for people to show poor balance duing the field tests, since they are designed to make people off balance. The police report will be skewed against the driver to note all of the information that might be considered incriminatein. It is important for a DUI defense attorney to point out all of things about his client that were normal and consistent with sobriety. In addition to attacking the field tests, the following are some of the top ten ways to show that a driver was not too intoxicated to be driving a vehicle, in no particular order:
1. Safe Driving: The best way to show that a person was not unsafe to drive is to show that he or she was driving safely. A lot of traffic stops after midnight in the suburbs are for equipment violations or speeding. If a vehicle has a tag light, taillight or headlight out, that has nothing to do with whether they are safe to drive a vehicle or not. There is no evidence of “bad driving” in those situations. Similarly, speeding may be considered a traffic infraction, but speeding is not considered by the National Highway Transportation Administration to be indicative of impaired driving. NHTSA lists about 20 driving behaviors that may indicate a person is under the influence of alcohol. Speeding is not one of them. So, how a person was actually driving a car is the first and best way to show that they were capable of driving safely.
2. Not Confused or Disoriented: When an officer approaches a driver he has pulled over, he is trained to make observations about the driver’s appearance. A person who is intoxicated may appear to be confused and disoriented as to what is going on, where he is, what direction he is headed, etc. If the driver did not argue with the officer about the stop, and did not appear confused or disoriented, this would be consistent with sobriety.
3. Production of Driver’s License/Insurance: Officers are trained to observe the way a person produces his or her driver’s license and insurance. Do they have trouble locating it, extracting it, or handing it over? Do they fumble for it or drop it? Officers are trained to try to cause these issues by, first, requesting the documentation, and then asking questions to divert the person from the task. They will ask what year the car is, where the driver is coming from, where they are going or some fairly innocuous question that may make the driver stop to answer and forget what he or she is doing, or otherwise get distracted. Of course, most people are scared, nervous and anxious when stopped by police officers so fumbling with a license may be explainable. However, if a driver can find and produce requested documentation without difficulty this is proof of small muscle control, finger dexterity, presence of mind and overall sobriety.
4. Answering Questions Appropriately: Again, officers like to ask a lot of questions while the driver is still in the car because, generally, the Miranda Warning requirements do not apply at that time. They will ask where the driver is coming from, where he or she is going, how much the driver has had to drink, when and where they drank, and other general questions. How a driver answers these questions may demonstrate clear thinking and sobriety. Being slow to answer, asking the officer to repeat questions, getting confused, and changing answers will all be used against a driver in a Kansas DUI case.
5. Being Polite: Intoxicated persons may be belligerent, antagonistic, combative and profane. Whether intoxicated or not, it always pays to be polite with police officers. This does not mean that a driver has to answer questions, take field tests or otherwise do anything that is not required by law, but such invitations to give evidence against oneself can still be declined in a polite and respectful way. Saying “I would like to speak to an attorney first, please”, or “I am not going to be uncooperative with you, but I will not take the balance tests”, are polite ways of invoking your rights and standing up for yourself without being rude or antagonistic. No matter what the attitude of an arresting officer, a driver that remains calm and polite will be far better off when a case goes to court, both in terms of demonstrating sobriety and in terms of treatment by the court.
6. Exit Sequence: Officers are also trained to observe the way a person gets out of his or her vehicle once commanded to do so. Does the driver have difficulty using the vehicle controls, finding the door latch or opening the door? Does the driver “crawl” out of the car, lean on the door or vehicle for support, or stumble when getting out? Does the person lean against the car or use the car for support while walking where directed by the officer? If the person gets out of the car without any difficulties or balance problems, this is evidence of possession of normal faculties and sobriety.
7. Walking Around at the Scene: An officer will generally have the driver exit his or her vehicle and walk to the back of his or her car. This will be in front of the officer’s car so his dashboard videocamera can capture the field tests. Sometimes the officer and driver will walk over to a sidewalk or some other appropriate surface for field testing. I like to point out that, while a person may have had trouble with the extraordinary balancing tests, he or she had no trouble with the ordinary walking around. If the driver can walk, talk and produce documentation like a normal, sober person, he or she can drive a vehicle like a normal, sober person.
8. Ability to Communicate: The “Big Three” clues you will see noted by officers in almost every single DUI case are (1) odor of alcohol about person or on breath, (2) bloodshot eyes (this has recently become “bloodshot and watery eyes”), and (3) slurred speech. At the time of being stopped and investigated, drivers are in no position to preserve any evidence regarding these three ubiquitous DUI characteristics. It is almost impossible to prove conclusively that a driver did not have the odor of alcohol or bloodshot eyes as these are subjective conclusions and usually one person’s word against the other’s. There are ways of dealing with both, however, but that is another topic. On the other hand, slurred speech should be apparent on a video or audio recording of the event, both of which are common in Kansas DUI cases. Often, the video will depict a driver whose speech is not slurred and who is able to communicate appropriately. This means that the driver can understand and answer the officer’s questions and that the officer is able to understand the driver. If so, one of the “Big Three” may be disproven and communication skills consistent with sobriety may be demonstrated.
9. Answering Biographical Questions: Whether or not a driver decides to invoke his or her right to remain silent and not answer the officer’s questions on the scene or later at the station after arrest, an arrested person is generally required to answer biographical questions about him or herself which may be necessary for an arrest report. These questions are usually about the person’s address and phone numbers, where he or she works and the address and phone number of their employer, what state he of she was born in and whether the person has any scars, marks or tattoos. An intoxicated person may have trouble with all of that. A sober person generally would not. The ability to correctly and efficiently provide this biographical information is consistent with sobriety.
10. Using the Telephone: This is often overlooked, but usually an arresting officer will allow a detained person to call someone to bail him out or to arrange for a ride home. Officers in some jurisdictions are specifically trained to observe how a person uses the telephone. This includes whether the person is able to get a line out of the building, remember phone numbers, dial the phone (takes finger dexterity), and speak appropriately. The person will often have to tell their friend or family member where they are and give directions or the address to the police station. The ability to do these things may be used as proof that the person was also able to do the things necessary to operate a motor vehicle.
By showing that a driver was able to do all of the things that a person normally needs to be able to do to drive a car, and that he or she generally possessed the mental and physical abilities of a normal person, DUI cases can be successfully defended. If it was only when the driver was asked to do the unusual and extraordinary, like stand on one leg or walk a line heel to toe, that there was any difficulty, this should be no real surprise. No one has to stand on one leg or walk a line to get a driver’s license.