Jun 13, 2019 Sobriety testing – Virginia DUI lawyer on challenging probable cause
Sobriety testing by police calls for aggressive response, says Virginia DUI lawyer
Sobriety testing — also known as standard field sobriety testing, SFST or FST — is a tool relied on by police in deciding whether to arrest a person for DUI and reporting on such cases, and then relied on by prosecutors in trying to obtain a conviction and at any sentencing. As a Virginia DUI lawyer, I pursue a persuasive counter-narrative to the often formulaic trotting out by police of such checklist items as alcohol odor on breath; eyes that are bloodshot, glassy and/or watery; slurred speech; staggering; stumbling; and performing inadequately on field sobriety tests.
Virginia DUI attorney on the defense sobriety counter-narrative of the totality of the circumstances
In a Virginia DUI prosecution, the police revelations often narrowly focus on piecemeal information highlighting fumbles by the suspect. Therefore, the DWI defense lawyer can provide the court with a persuasive defense-friendly fuller overview/ counterstory that is needed, for starters, for a trial judge to determine the preliminary question about whether the totality of the circumstances do or do not establish probable cause to have arrested the suspect for DWI. Maryland v. Pringle, 540 U.S. 366 (2003).
Virginia DWI lawyer on items to consider for countering DUI claims
Here are some items to consider in preparing a defense friendly counterstory about sobriety in a DUI case:
- Did the police officer encounter the defendant through a traffic stop, after a car accident, or upon finding the defendant’s vehicle in a stationary position?
- Did the defendant timely stop after the police officer signaled to do so?
- Did the suspect timely and without trouble produce his or her license and car registration?
- Did the suspect act politely and respectfully? Were his or her clothes, hair, face and overall appearance normal and not disheveled?
Virginia DUI attorney on a cop’s subjective observations
Police make numerous subjective observations about sobriety.
- How faint or strong was the odor of alcohol?
- If the police officer claims bloodshot eyes, remember that bloodshot ranges from short hairline-width redness to more advanced bloodshot. Bloodshot can come from many non-alcohol related factors, including dry eyes, dust and exhaustion.
- Often police claim slurred speech when the incident video shows the opposite. Some overseas and regional accents, speech impediments and unusual daily manners of speaking can be misinterpreted as slurred speech.
Distractions and challenging circumstances that can affect behavior that do not mean lack of sobriety
Distracted behavior does can come from many sources beyond sobriety.
- What was the weather and time of day? How tired was the suspect? Was the ground level and free of debris at all points? what footwear and clothing was the defendant wearing, and to what extent did either or both impede movement?
- How distracting was other traffic (which can create a safety issue) and did the police cruiser lights unnecessarily shine distracting light on the defendant?
- Did police deny requests to go to the bathroom, to drink water to quench thirst, to attend to minor children left in the car, and to call home to assure loved ones not to worry about the defendant’s delay? All are potential distractions that can impede performance in the field.
- Lack of coordination can come from the person always being poorly coordinated, or having orthopedic or other issues affecting balance.
- Such cognition issues as mis-recitation of a portion of the alphabet or counting backwards can come from speaking English as a second language, exhaustion, the limited relevance of having someone do such an exercise, attention deficit (which is common in society), and intellectual limitations. Such tests are not NHTSA-recommended standard FST’s.
DUI prosecutions need to be fought tooth and nail.
Virginia DUI lawyer Jonathan L. Katz has successfully defended hundreds of clients charged with alcohol and drug-impaired driving, and has taken hundreds of such cases to trial. To discuss your DUI, felony or misdemeanor case with Jon Katz, please call his staff at 703-383-1100 to schedule a confidential consultation.