By Erin Gerstenzang

For many people charged with DUI, one of the most puzzling questions is how the government can go forward on a DUI case with “no evidence.” Underlying this question is the assumption that a blood or breath test is required to prosecute a DUI charge.

A DUI charge often involves a lot of different types of evidence. Although we commonly hear about breath and blood tests in connection with DUI arrests, what is less commonly considered is the evidence that is collected during roadside investigation.

Obviously, field sobriety evaluations are a crucial part of the investigation, but there are even more subtle stages of the investigation that can support the officer’s conclusion that a driver is in fact, DUI.

What most drivers do not realize is that the officer is collecting evidence of impairment from the very first moment he observes the vehicle.

303Many law enforcement officers often ignore basic lane violations during the daylight hours. However, those same lane violations garner much more critical attention from the police when they occur in the evening, especially on Thursday, Friday or Saturday nights.

Even if the initial traffic violation is mild, the officer is on alert and begins his investigation before the vehicle has even pulled over to the side of the road.

The officer is monitoring how long it takes the driver to respond to the emergency lights. Does the driver respond immediately, or does it take an inordinate amount of time for the driver to pull over?

He observes the manner in which the vehicle is pulled over – does the driver choose a relatively safe location, does the driver pull over an appropriate distance from the travel lane, and/or does the vehicle strike the curb?

As the officer approaches the vehicle he is looking to see if the vehicle is put in “park” or has the driver absent-mindedly left it in “drive.” Occasionally a nervous driver will inadvertently put the vehicle in “reverse” instead of “park.”

If the driver prematurely opens the door as the officer approaches, this can be considered a sign of poor judgment and possibly impairment.

642The officer is looking for the manner in which a driver produces his license. Does the driver fumble with the plastic sleeve in his wallet, or has the driver misplaced his license? Occasionally the driver will hand over the wrong card – such as an ATM card as opposed to the license.

The officer is also on the look out for any noticeable masking odors such as perfume, gum, or a recently lit cigarette. When present, the officer may conclude that it is an attempt to cover the odor of alcohol or marijuana.

When the officer asks the driver to step out, he is closely monitoring the manner in which the driver exits his car. Does he have trouble getting out of the car or hold on to the vehicle for support?

Another stage of the investigation is when the officer asks the driver to walk to the rear of the vehicle. The officer is closely watching to see if the driver lays his hand on the vehicle for support which would suggest that the driver is having difficulty balancing.

Once the driver is out of the car, the officer will position the driver in front of the camera which is in the patrol car. The officer is watching to see if the driver has trouble following instructions as to where to stand. And since most drivers are uncomfortable standing outside their car, in close proximity to fast-moving traffic, it is not uncommon for a driver to mishear, or misunderstand exactly where the officer is directing him to stand. As a result, any confusion as to the officer’s instructions is often attributed to impairment.

Officers will frequently ask the same questions multiple times during the investigation. Although it may seem as if the officer is incredibly forgetful, this is actually a very strategic and well-used investigative technique. Often drivers will give different answers – suggesting either a misrepresentation of the facts, or impairment of his mental faculties.

695Another favorite method commonly employed is to ask the driver to state his location. Although this may seem like it should be a relatively easy task for a sober driver, often drivers are escorting other people home and may be in an area with which they are unfamiliar. With the ubiquitousness of GPS navigation systems, it is not uncommon for drivers to be in areas that are quite unfamiliar. If a driver is unable to specify the exact location of the stop, this is almost always attributed to impairment.

Along with questions regarding location, an officer will  ask the driver if he can accurately estimate what time it is without looking at a watch. This is done to evaluate the driver’s time and place orientation.

In short, while a blood or breath test is very compelling evidence in a DUI case, it is far from the only evidence. Balance, demeanor, manner of speech, manner of driving and other unusual behaviors can be just as compelling and are routinely used in DUI prosecutions on a daily basis.