The Anatomy of a DWI Charge
There is a frightening realization once the idea settles in that you have actually been charged with a crime. It will be difficult to tell your spouse, maybe children, and maybe even your employer. How will I get to work? Can I do my job if I lose my license? Can I still drive now? What could happen if I’m convicted? What should I do right now?
The friendly evidence gathering process
Before the DWI stop is initiated the officer/trooper has already begun gathering evidence against you. They have been well trained in escorting you through the process of incriminating yourself. Effective defense of a DWI charge requires immediate action and a sustained detailed procedure from the beginning of the case until the end. Every opportunity must be explored early on to get the most from the defense of any case. Opportunities to limit license loss, even for those not guilty of DWI, begin to expire from the moment of the stop. The right decisions must be made to limit the impact of a DWI charge.
Was I driving?
Many people are surprised that driving while intoxicated does not actually require driving at all. People are routinely arrested for being in a vehicle with keys even though the vehicle is not going anywhere.
Erratic Driving
If any driving did occur it will likely be noted in the officer’s report and characterized as indicative of intoxication. “Weaving within the lane” often appears in police reports. This is a statement that would seem to indicate sobriety, but it is characterized at trial to show intoxication. Have you ever seen anyone drive on a curved road without “weaving within the lane?” Stopping “too far back” from an intersection or stopping “past the stop line” are both used as indicators of impairment. Failure to signal a turn or turning on a signal light too soon are both used against a person accused of DWI. Whatever the officer saw, it will be used against you in court.
The Stop
There are several ways that you could encounter police for the first time when they conclude that you are intoxicated and begin the process of attempting to prove that conclusion. Usually it begins with the flashing blue lights in the rear view mirror. Careful examination of the circumstance of how you first came into contact with police, whether it was a motor vehicle stop or otherwise, is an important step in the analysis of a DWI case. The Fourth Amendment to the United States Constitution, and Part I, Article 19, of the New Hampshire Constitution, both protect us from unwarranted intrusion by police. Failure of police to abide by those strict constitutional limits can mean that all of the evidence developed from the stop gets thrown out.
Observations
The officer made specific observations when he approached the vehicle. Some of those observations seem to simply be cut and pasted from other reports as they all seem to read the same. The prosecutor will try to make the most out of the few common facts that always arise. You can get those reports by going to the police station or trooper barracks where the arresting officer works. You will see that your eyes were bloodshot and glassy (sometimes “watery”). A vast majority of these stops occur within a couple of hours of midnight. The eyes of working people are almost always a little weary around midnight because we get up for work early in the morning.
Everything you say or do from this point forward will be characterized as if only a drunk person would say or do that and it will all be used against you in court. It will not be used in its original context.
Slurred Speech
The officer/trooper noticed slurred speech. The officer has never met the person who has just been stopped and has no idea how that person ordinarily speaks. Unless your speech is crystal clear and without any foreign accent, it will likely be characterized as “slurred speech”. This will be termed part of the “totality of the evidence” even if it is not evidence of impairment at all.
Can’t find the registration
If the vehicle was purchased from a dealership, it probably came with a significant pack of paperwork associated with the transaction and warranty that is probably kept in the glove box. Some people use the glove box to keep the maintenance records and receipts associated with service work done on the vehicle. That glove box may also be used to keep a variety of miscellaneous documents and perhaps some napkins or tissues. Most people put their registration in with all of those other papers. If it takes you some time to locate your registration upon demand by the officer, that time will be noted as an indicator of impairment. Anything other than instantaneous production of both license and registration will be noted.
Using the Vehicle for Balance
Swaying will happen. The officer will keep a very close eye on every move you make as he “ask if you mind doing some field sobriety tests” (as if there were two possible answers). If you put your hand on the top of the door frame or the roof of the car to help yourself out of the vehicle, that will be noted as an indication of impairment. Even if that’s what you do every time you get out of your vehicle, this time it will be evidence against you. If you don’t simply levitate from your seat and move in robotic form to the spot the officer designates, any variance will be noted as an indicator of impairment. Levitation or robotic form would also be noted as indicators of impairment.
Strong Odor of Alcohol
The officer will refer to a strong odor of alcoholic beverage, alcohol or “ETOH.” They all have the same meaning, but address different technical challenges in the law. It is fairly well settled that the strength or weakness of the odor of alcohol has no relationship to your blood alcohol level. “Strong odor of alcohol” sounds like it might be more meaningful though. That’s how it will show up in the police report. If you have had anything to drink in the past hour or so, there will be an odor of alcohol on your breath.
PBT
If they stuck something in front of your face at the roadside and said blow into this, it was called a Preliminary Breath Test (PBT). A PBT is worthless for determining blood alcohol level. They can, however, be used to prevent a later reliable breath test from being introduced against you at trial or other hearings.
Officer Gets a Clue
The officer will next testify that he asked you if you would be willing to take field sobriety tests (as if you would think there was another option). The officer should ask you if you have any injuries or disabilities that would disqualify you from doing a gymnastics routine because the level of performance that will be required of you during the field sobriety tests is perfection. Instead the officer will ask if you have any medical conditions that he should be aware of or something to that effect. You will not gain a full appreciation of that question until you consult with a DWI lawyer.
The Pen Test
This test is referred to by police as the Horizontal Gaze Nystagmus (HGN) test. The fundamental indicators in this test can be influenced by a number of different environmental or physical factors. The flashing light of a police car or the passing headlights of traffic can cause HGN. Head injury or other trauma related to a car accident can invalidate the conclusions an officer may come to based on the HGN test.
Walk the Line
This test is referred to by police as the “9 Step Walk and Turn”. It sounds simple enough, but with the benefit of a police report analyzing the errors that a person might make during this test, it becomes clearly impossible. Starting too soon, space between the heel of one foot and the toe of another, stepping off of an imaginary line, failing to properly track the number of steps (this counts double), not turning around correctly, holding your hands up as you balance, looking at your foot (or not looking at your foot). These are all indicators of impairment according to the police.
One Leg Stand
This is conducted creatively by different police officers. If you were not planning to do this test or the previous one before you left your home earlier in the evening, you may not have chosen the correct footwear to optimize your results. The testing officer will not make a note of three inch heels or other footwear that undermines balance, so you should. If you count to slowly, count too fast, put your foot down, sway as you stand on one foot, hold your foot too high or too low, those will be used as evidence that you are intoxicated.
Field Sobriety Test Results
You think you did pretty well on all of the officer’s tests. You failed before you even started. This was an evidence gathering procedure, not a test. You cannot pass. You are under arrest.
The questions of what should have been done before the stop, during the officer’s investigation, and after the arrest are simply a waste of energy, anxiety, and resources. There is a significant amount of work to be done now that the charge(s) are pending.
Breathalyzer Test
If your breath test was higher than you honestly expected it to be, that may be because it is wrong. There are several factors that could contribute to an inaccurate breath test reading. The most common factor is time.
The time between the stop and the test can have a significant impact on the result. The state must prove beyond a reasonable doubt that you were intoxicated at the time you were driving. Being intoxicated an hour later at the police station is not illegal. Absent some other solid evidence of intoxication at the time you were driving, a late breath test should not sustain a conviction.
Blood Tests
Blood tests are routinely taken in violation of statutory law and constitutional rights. There is enough confusion in New Hampshire law enforcement to make many of the tests invalid or inadmissible. If the evidence against you is based on a blood test, there may not be any admissible evidence against you.
If you were told that you had no choice but to give blood because of the accident you were in, you were misinformed. If the officers obtained blood test results from the hospital or ambulance service without your expressed written consent, they were misinformed. If you gave consent during periods of intermittent consciousness, you did not give valid consent. These are circumstances that arise on a regular basis in what law enforcement refers to as a “Felony Blood Draw.” Many of these blood test results cannot be used as evidence against you.
$40.00 bail
If you think your bail was $40.00 then you are wrong. The $40.00 paid at the time of your release was the fee that the Bail Commissioner took to set your bail at some amount of personal recognizance. There may be other conditions on the bail paperwork you received that need to be addressed at or before your arraignment date.
What must be done NOW!
ALS hearing
The pink piece of paper you received if you took the breathalyzer does not tell you that your license will automatically be suspended. Surprised? The officer will later testify that he explained the entire form to you including the consequences of your refusal to take the breath test and what would happen if you blow over .08. If the officer had actually explained all of the provisions of this form clearly to you, then you would know that you have a right to a hearing on whether your license should be suspended. Your license may still be valid and could remain valid if the DMV decides that the officer made any relevant mistake.
If you miss the deadline, you simply lose your license without a chance. We can intervene before the deadlines to get the process started and make sure every avenue is taken to challenge the state’s efforts to take your license for as long as they can get it.
Second Opinion
If you took a breathalyzer test, you were given a plastic pouch. That pouch is your opportunity to get a second analysis of the breath sample you gave. If the police breathalyzer is inaccurate, that plastic pouch is your way to prove that.
There are many ways to produce a faulty breath sample. You were sitting for 20 minutes waiting to take a breath test for the purpose of clearing your mouth of any alcohol before the test. Police routinely fail to consider some less frequent circumstances such as false teeth, chewing tobacco, and other similar objects that might trap alcohol in the mouth and produce a much higher blood alcohol reading than it should.
After reading through hundreds of police reports, hearing testimony at trial after trial, reviewing the evolving law pertaining to DWI, defenses arise from many seemingly hopeless cases. Get the best outcome that experienced representation can bring to your case. Initial consultation is free. Experienced counsel is competitively priced. Don’t try a DWI case on your own. There is too much to lose.
