Frequently Asked Questions
asked questions listed below were written
by Lawrence Taylor - Dean of the National
College DUI Defense
1. What do police
officers look for when searching for drunk
drivers on the highways?
is a list of symptoms in descending order
of probability that the person observed is
driving while intoxicated. The list is based
upon research conducted by the National Highway
1. Turning with a wide radius
2. Straddling center of lane marker
3. "Appearing to be drunk"
4. Almost striking object or vehicle
6. Driving on other than designated highway
8. Speed more than 10 mph below limit
9. Stopping without cause in traffic lane
10. Following too closely
12. Tires on center or lane marker
13. Braking erratically
14. Driving into opposing or crossing traffic
15. Signaling inconsistent with driving actions
16. Slow response to traffic signals
17. Stopping inappropriately (other than in lane)
18. Turning abruptly or illegally
19. Accelerating or decelerating rapidly
20. Headlights off
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment
and reflexes, it may indicate sobriety.
What is the officer looking for during
the initial detention at the scene?
symptoms of intoxication taught at the police
1. Flushed face
2. Red, watery, glassy and/or bloodshot eyes
3. Odor of alcohol on breath
4. Slurred speech
5. Fumbling with wallet trying to get license
6. Failure to comprehend the officer's questions
7. Staggering when exiting vehicle
8. Swaying/instability on feet
9. Leaning on car for support
10. Combative, argumentative, jovial or other "inappropriate" attitude
11. Soiled, rumpled, disorderly clothing
12. Stumbling while walking
13. Disorientation as to time and place
14. Inability to follow directions
What should I do if I'm asked to take field
a wide range of field sobriety tests (FSTs),
including heel-to-toe, finger-to-nose, one-leg
stand, alphabet recitation, modified position
of attention, fingers-to-thumb, hand pat,
etc. Most officers will use a set battery
of three to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences,
you are not legally required to take any FSTs. The reality is that officers
have usually made up their minds to arrest when they give the FSTs; the tests
are simply additional evidence which the suspect inevitable "fails".
Thus, in most cases a polite refusal may be appropriate.
What is a "rising BAC defense"?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the
time of DRIVING -- not at the time of being TESTED. Since it takes between
45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's
BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine
test is given to the suspect. Assume that the result is .12%. If the suspect
has continued to absorb alcohol since he was stopped, his BAC at the time he
was driving may have been only .08%. In other words, the test result shows
a blood-alcohol concentration above the legal limit -- but his actual BAC AT
THE TIME OF DRIVING was below.
What is "mouth alcohol"?
"Mouth alcohol" refers
to the existence of any alcohol in the mouth
or esophagus. If this is present during a
breath test, then the results will be falsely
high. This is because the breath machine
assumes that the breath is from the lungs;
for complex physiological reasons, its internal
computer multiplies the amount of alcohol
by 2100. Thus, even a tiny amount of alcohol
breathed directly into the machine from the
mouth or throat can have a huge impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting
within 20 minutes of taking the test can bring vapor from alcoholic beverages
still in the stomach up into the mouth and throat. Taking a breath freshener
can send a machine's reading way up (such products as Binaca and Listerine
have alcohol in them); cough syrups and other products also contain alcohol.
Dental bridges and dental caps can trap alcohol. Blood in the mouth from an
injury is yet another source of inaccurate breath test results: breathed into
the mouthpiece, any alcohol in the blood will be multiplied 2100 times.
What defenses are there in a DUI case?
Potential defenses in a given
drunk driving case are almost limitless due
to the complexities of the offense. Roughly
speaking, however, the majority can be broken
down into the following areas:
Intoxication is not enough: the prosecution
must also prove that the defendant was driving.
This may be difficult if, as in the case
of accidents, there are no witnesses to his
being the driver of the vehicle.
cause. Evidence will be suppressed if the
officer did not have legal cause to (a) stop,
(b) detain, and (c) arrest. Sobriety roadblocks
present particularly complex issues.
Incriminating statements may be suppressed
if warnings were not given at the appropriate
(4) Implied consent
warnings. If the officer did not advise you
of the consequences of refusing to take a
chemical test, or gave it incorrectly, this
may affect admissibility of the test results
-- as well as the license suspension imposed
by the motor vehicle department.
the influence". The officer's observations
and opinions as to intoxication can be questioned
-- the circumstances under which the field
sobriety tests were given, for example, or
the subjective (and predisposed) nature of
what the officer considers as "failing".
Too, witnesses can testify that you appeared
to be sober.
concentration. There exists a wide range
of potential problems with blood, breath
or urine testing. "Non-specific" analysis,
for example: most breath machines will register
many chemical compounds found on the human
breath as alcohol. And breath machines assume
a 2100-to-1 ratio in converting alcohol in
the breath into alcohol in the blood; in
fact, this ratio varies widely from person
to person (and within a person from one moment
to another). Radio frequency interference
can result in inaccurate readings. These
and other defects in analysis can be brought
out in cross-examination of the state's expert
witness, and/or the defense can hire its
own forensic chemist.
(7) Testing during
the absorptive phase. The blood, breath or
urine test will be unreliable if done while
you are still actively absorbing alcohol
(it takes 45 minutes to three hours to complete
absorption; this can be delayed if food is
present in the stomach). Thus, drinking "one
for the road" can cause inaccurate test
extrapolation. This refers to the requirement
that the BAC be "related back" in
time from the test to the driving (see question
#5). Again, a number of complex physiological
problems are involved here.
of blood-alcohol testing. The prosecution
must prove that the blood, breath or urine
test complied with state requirements as
to calibration, maintenance, etc.