LEGAL GUIDE
Written by attorney Mark Alan Deters | Sep 16, 2011

What are Police Officers looking for to ACCUSE you of Impaired Driving, DUI, DWI, or OVI?

The police officers’ training based on the National Highway Traffic Safety Administration (NHTSA) requirements and the Ohio Peace Officer Training Academy (OPOTA) divides the impaired driving arrest into three different “phases:"

(1) “Vehicle in Motion" is the first thing police officers are told to look for when they trying to accuse someone of impaired driving. During that phase the police officers look for certain driving cues – a list of 24 different possible driving violations, which supposedly “indicate" a person is driving impaired. But, you will notice SPEEDING is NOT one of the factors. Additionally, the police only need ONE violation to accuse you of impaired driving – although you are not violating 23 other cues. So you miss 1 out of 24 and you fail! That test isn’t set up for anyone to pass!

(2) “Personal Contact" is the second thing police officers do to accuse you of drunk driving. That is when the police officer approaches your car window, and looks for “cues" of what the “average" impaired driver looks and smells like.

(3) “Pre-Arrest Screening" is the third and final part of the impaired driving accusation process. That is when the police officer has you do gymnastics on the side of the road and checks your eyes with a pen and flashlight.

(1) Vehicle in Motion:

The list of 24 visual cues, which was determined by the National Highway Traffic Safety Administration (NHTSA):

  1. Weaving

  2. Weaving across lane lines

  3. Straddling a lane line

  4. Swerving

  5. Turning with a wide radius

  6. Drifting

  7. Almost striking object or vehicle

  8. Stopping problems (too far, too short, too jerky)

  9. Accelerating or decelerating rapidly

  10. Varying speed

  11. Slow speed (10 m.p.h. + Under Limit)

  12. Driving in opposing lanes or wrong way on one-way street

  13. Slow response to traffic signals

  14. Slow or failure to respond to officer’s signals

  15. Stopping in lane for no apparent reason

  16. Driving without headlights at night

  17. Failure to signal or signal inconsistent with action

  18. Following too closely

  19. Improper or unsafe lane change

  20. Illegal or improper turn (too fast, jerky, sharp, etc.)

  21. Driving on other than designated roadway

  22. Stopping inappropriately in response to officer

  23. Inappropriate or unusual behavior (throwing objects, arguing, drinking in the vehicle, urinating at roadside, arguing without cause)

  24. Appearing to be impaired (eye fixation, tightly gripping the steering wheel, slouching in the seat, gesturing erratically or obscenely, face close to the windshield, driver’s head protruding from vehicle).

· You will notice that many of the reasons police officers stop people at night—to accuse them of impaired driving—are not on the above list, like: (1) Speeding, (2) No License Plate Light, (3) Tinted Windows, (4) No Tail Lights, (5) One Headlight Out.

· Many impaired driving stops are “pre-textual," meaning the police officer has already determined that he will arrest the driver for impaired driving. Thus, the only thing a motorist can do when stopped by such an officer is not to give him any evidence to help his case.

(2) Personal Contact Phase

As the officer approaches a motorist’s vehicle they are instructed to immediately start gathering evidence to accuse you of impaired driving. The officer is using face to face observation and will be looking for:

· Blood shot eyes

· Soiled clothing

· Fumbling fingers

· Alcohol containers

· Drugs or drug paraphernalia

· Bruises bumps or scratches

· Unusual actions

The officer will also be listening for:

  • Slurred speech
  • Admission of drinking
  • Inconsistent responses
  • Abusive language
  • Unusual statements

And the officer will be smelling for:

  • Alcoholic beverages
  • Marijuana
  • Cover up like breath sprays
  • Unusual odors

The officer will ask you multiple questions at once to attempt to distract and confuse you. He may ask you to produce two things simultaneously, such as your license and registration, and is hoping that the driver will:

  • Forget to produce both documents upon request
  • Produce documents other that the ones requested
  • Fail to see the license, registration, or both while searching through wallet, or purse, etc
  • Fumble or drop his wallet, her purse, license or registration
  • Be unable to retrieve documents with finger tips

The officer may ask interrupting questions or distracting questions such as ‘What time is it’ or ‘what is your middle name,’ while you are searching for your documents. The officer is now observing to see if the driver:

  • Ignores the question and concentrates on the license or registration search
  • Forgets to resume search after answering the question
  • Supplies grossly incorrect answer to the question

If the driver seems impaired due any of the above reasons, the officer will ask the driver to exit the vehicle. As the driver exits, the officer will gather evidence of impairment from a driver who:

  • Shows angry or unusual reactions
  • Cannot follow instructions
  • Cannot open the door
  • Leaves the vehicle in gear
  • “Climbs" out of vehicle
  • Leans against vehicle
  • Keeps hands on vehicle for balance

(3) Pre-Arrest Screening

The officer is now going to have you do some balancing exercises, which are basically gymnastics that do not gauge your ability to operate a vehicle. Nor is there any scientific evidence to show that these gymnastics measure impairment.

Horizontal Gaze Nystagmus

The officer is going to do a check of your eyes, to see if they bounce at certain times. But, this officer is not an ophthalmologist, does not have medical training, and does not know how your eyes look normally.

Each eye is checked for three different things, which they call “clues." The maximum number of clues in one eye is 3 and the maximum number in both is six. According to the NHTSA manual of 2006, if 4 or more clues are evident, then there is a 77% chance the person’s blood alcohol concentration is above .080%. But, what the NHTSA manual fails to train the officers on is that with 4 clues, the person’s blood alcohol level could be as low as .040%

Walk and Turn exercise

Officers look for the motorist to exhibit only 2 out of 8 possible clues to fail this test. This test is set up for failure. The clues the officer is looking for include:

  • Can’t balance during instructions
  • Starts too soon
  • Stops while walking
  • Doesn’t touch heel to toe
  • Steps off the line
  • Uses arms to balance
  • Loses balance on turn or turns incorrectly and
  • Takes the wrong number of steps

One Leg Stand exercise

The officer will require the motorist to stand on one leg and count for 30 seconds. The officer is trained to carefully observe the motorist’s performance and look for 4 specific clues:

  • Sways while balancing
  • Uses arms to balance
  • Hops
  • Puts foot down

Conclusion

The above listed factors only touch the surface as to what police officers are looking for to accuse a motorist of impaired driving, DUI, DWI, or OVI. But, when did you ever have to do any of the above gymnastics to get your license?

Many people say they couldn’t pass those roadside gymnastics even if they didn’t have a drink! They are right. Repeatedly, clients will come into my office who are overweight by more than 50 pounds, have numerous extensive medical problems, and they can’t pass the balancing or walking tests.

Performing the roadside gymnastics IS NOT REQUIRED in Ohio. Police Officers in Ohio CANNOT arrest you merely because you refuse to perform the roadside gymnastics. Will they? Most likely—but that will give you evidence in your defense. The less subjective information you give the police officers, the less likely that your Constitutional Rights will be violated by an unlawful arrest.

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