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Driving Patterns & Evidence

Driving Patterns

The National Highway Traffic Safety Administration has conducted an extensive study in their effort to help law enforcement detect drunk drivers. They have identified 20 driving patterns that are believed to be consistent with driving under the influence:

  • Turning with a wide radius
  • Straddling center or lane marker
  • Appearing to be drunk (based on posture, gestures, etc.)
  • Almost striking object or vehicle
  • Weaving
  • Driving on other than designated highway
  • Swerving
  • Speed more than 10 mph below limit
  • Stopping without cause in the traffic lane
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Signaling inconsistent with driving actions
  • Slow response to traffic signals
  • Stopping inappropriately (other than in lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • Driving with Headlights off

NOTICE – SPEEDING IS NOT ONE OF THE TOP TWENTY CLUES. Many people arrested for DUI, DWI, or related drinking and driving charge are initially stopped for speeding. So long as the other NHTSA clues, above, are not present, and the stop is for speeding only, an experienced DUI lawyer will be able to turn this into a positive. Put simply, it takes greater care and skill to pilot a car going fast than it does to pilot a car going slowly. A DUI defense lawyer with experience handling drinking and driving cases will be able to highlight this fact in the most effective way possible for the judge or jury. It does bear mentioning that many states do mandate enhanced punishment where a person is found to be DUI or DWI, AND speeding above a certain level, AND driving recklessly. Keep in mind that speeding, in and of itself, it NOT reckless driving. Again, a qualified DUI or DWI defense lawyer will know how to successfully handle this issue.

Statements to Police

If you are stopped by the police, you are under no obligation to talk to them or answer their questions. You are certainly under no obligation to help police build a case against you, and this approach will help prevent them from doing so.

One of the most common questions DUI defense lawyers hear is “I didn’t get my Miranda rights; can my case be dismissed?” Unfortunately, the answer is “No.” However, it may be possible to keep statements from coming into evidence under certain circumstances.

Courts have determined that Miranda warnings need not be read to a subject until there is “custodial interrogation.” This occurs where a person is not free to terminate the encounter with law enforcement, AND where law enforcement asks direct questions (or their functional equivalent) which are designed to elicit an incriminating response from the subject. Most of the time, the questions (and answers) that turn out to be damaging to a person’s defense are questions that are asked prior to the situation turning “custodial.” As ridiculous as this may sound to one who is stopped by the side of the road, performing field sobriety tests at the request of a uniformed officer (who also carries a gun), this stage is investigative detention that does not trigger the need to Mirandize a subject.

Right to a Lawyer

Every state has different laws, so it is critical that you speak to a DUI or DWI defense lawyer in your state to determine whether there is a right to consult with a lawyer prior to taking either Field Sobriety Tests or a post-arrest chemical test.

Whether or not the law in your state allows for consultation with an attorney prior to taking the tests, it is a good idea to politely ask for one at every turn. If your case does go to trial, this type of evidence is very powerful in front of a jury. If you are in a state that does not allow persons accused of DUI, DWI, or other drinking and driving-related offenses to consult with lawyers, you may have an opportunity to help change that law.

If you’ve been charged with an alcohol-related offense, one of our DUI LAWS attorneys can help. Click here to find the lawyer nearest you.

Evidence Gathering

There are four main categories that officers look to when investigating a DUI or DWI case: driving pattern, physical symptoms, field sobriety test performance, and chemical test results.

Driving pattern clues are typically those outlined by the National Highway Traffic Safety Administration (NHTSA) in their study entitled “Detecting Drunk Drivers at Night”. They include problems with turning, weaving, erratic braking, nearly striking objects, and others. Many DUI or DWI investigations do not begin as a drinking and driving investigation. They start as a typical traffic stop, for some type of minor infraction that has no relationship to drunk driving; it is only later, when certain physical signs and symptoms are observed, that the officer turns the investigation into a DUI stop.

Alcohol is a central nervous system depressant, and those who consume enough of it generally exhibit certain signs. Officers are (supposedly) trained to look for these signs. Since the experts in the field universally agree that alcohol causes mental impairment before any physical impairment sets in, and since the phenomenon of tolerance can mask physical symptoms, but not mental ones, officers are particularly conscious of signs of mental impairment.

Every DUI arrest report will include commentary on the driving pattern, the subject’s response to the officer’s lights/siren, the subject’s ability to park their car properly, ability to get out their driver’s license, registration, and insurance without fumbling for them, ability to get out of the car without leaning on it for support, their performance on field sobriety tests, and a litany of physical symptoms (red/watery eyes, the odor of alcohol, attitude as cooperative or not, coordination problems).

Field Sobriety Tests

These are not really tests; rather, they are physical agility exercises that are subjective in nature and designed for the accused to fail.

Most people don’t realize that these tests are optional… and the officers who give them sure won’t tell you, but they are. You are perfectly free to politely refuse to take the Field Sobriety Tests in their entirety.

These “tests” may include the following:

Other Field Sobriety Tests include finger tapping, hand-clapping, counting backward, or reciting or writing the alphabet.

These are supposedly tests that are designed to check “divided attention”, a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer’s satisfaction, and pay the price with a drunk driving arrest.

Preliminary Alcohol Screening Test (PAS Test): One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test. This is a portable breath test to determine the presence of alcohol. The officer, in most states, is supposed to advise the suspect that the test is voluntary. In practice, this does not always happen.

The most important thing to know about the Field Sobriety Tests is that a skilled defense lawyer will know how to handle them in court.

For further information about the proper administration and scoring of Field Sobriety Tests, you are welcome to contact any of our qualified DUI defense lawyers for further information. Drunk driving is a serious charge; click here to find a well-qualified lawyer to help.

Miranda Warnings

Unfortunately, an officer’s failure to give Miranda warnings doesn’t mean the entire case will be dismissed. Miranda warnings are supposed to protect the accused from making incriminating statements that are the product of custodial interrogations. Where the Miranda warnings (including the right to remain silent, advising that anything said can and will be used against the person in court, the right to an attorney, and advising that if someone can’t afford an attorney, one will be appointed) are not given, statements made while in custody may be suppressed, but the case won’t be thrown out