Before a police officer can pull over a driver, the officer has to have a legally valid reason (a reason to believe a law/traffic violation occurred). If the driver commits a traffic violation, like speeding, the officer can conduct a traffic stop. The same is true for if the driver has expired tags or a has a burned out headlight.
Then, once the officer has pulled over the driver, if the officer smells alcohol or has other reason to believe the driver has been drinking, the officer can continue to detain the driver to further investigate beyond the scope of the original purpose of the traffic stop by investigating the driver for DWI by using a field sobriety exercises, a portable breathalyzer, or other police created field tests. This is known legally as having a "reasonable suspicion".
An Officer Must Have Reasonable Suspicion
Typically, officers will cite suspicion of a traffic violation, equipment violation, or criminal activity as the reason for pulling a vehicle over. Criminal activity could mean things like weaving between lanes, driving too slowly, speeding, running a stop sign or not using a turn signal to change lanes. It's pretty easy for officers to meet the reasonable suspicion requirement, but they do still have to meet it.
An officer in Arizona recently ticketed a woman for making an unsafe lane change, an improper turn, and a red-light violation. In his report, he said he also noted a faint odor of alcohol coming from her car and so he started to conduct a sobriety test. Problem was, the woman had not been drinking.
The woman told the officer that she got very anxious around male police officers, and she began to have a panic attack. She asked a female officer to come to the scene. But, instead of a female officer arriving, more male officers appeared, making the woman's anxiety even worse.
The woman admitted to the officer that she had one very small drink four hours earlier. The officer administered a breathalyzer test, which indicated that her blood alcohol content was .02, well below the legal limit of .08. Nevertheless, the officer arrested the woman and charged her with DWI for both drugs and alcohol. But when her blood test came back, it was negative for all drugs tested and her BAC was .01. Almost two months later, a judge dismissed the DWI charges and closed the case.
While this situation took place in Arizona, it mirrors many cases I've handled in Texas. This situation highlights a couple things. One, the subjectivity, unreliability and inaccuracy of police field exercises--even sober people can fail them due to nervousness. Two, it also demonstrates how aggressive some, not all, police can be armed with these subjective exercises. The agony of being dragged through the criminal justice system for the Arizona woman above and many of my clients should not have taken place. Sadly, without a skilled DWI lawyer, many persons wrongfully accused would be convicted.
But Reasonable Suspicion Alone is Not Enough
Once the officer has pulled you over, the officer must establish reasonable suspicion of intoxication before the officer can begin a DWI investigation. Common reasons officers will give for suspecting intoxication include smelling an odor of alcohol, a driver with bloodshot eyes, slurred speech, admissions to consuming alcohol, or difficulty locating driver's license and insurance.
But an officer can't make an arrest alone based solely on a reasonable suspicion. The officer must acquire more evidence to demonstrate "probable cause" that you have committed a crime. This is why officers will often begin asking questions. Anyone who has ever been pulled over will probably be familiar with those questions:
Some questions like, “Where have you been?” are pretty obvious. If you say “a bar”, you're helping the officer build his case against you.
But other questions can seem chatty and conversational, like, “Do you still live at this address?” If you being chatting and your speech is slurred, the officer might conclude that you sound like you've been drinking.
The officer is looking for other signs (evidence), too, from the moment you roll down your window. An attorney and Uber driver in North Carolina even posted a video on YouTube of him going through a police checkpoint while refusing to answer any of the officer's questions, just to illustrate that people don't have to do things that might incriminate themselves.
If the arresting officer's reasons for pulling you over and conducting a DWI investigation were not legal, then the a Board Certified DWI Specialist can file a motion to suppress evidence demonstrating why the evidence should be thrown out and your case dismissed. If you think you were arrested without reasonable suspicion, contact our office today. Doug Murphy is a DWI Board Certified Specialist with extensive experience and success in winning DWI cases through a motion to suppress demonstrating police officers lacked a reasonable suspicion to pull his clients over. We can help you fight this charge.