Whether an arrest for driving while intoxicated is proper often hinges on the totality of facts presented following a valid DWI stop. There must be evidence of intoxication whether it is from alcohol, marijuana or some other illegal substance. The level of intoxication must be sufficient to result in an inability to safely operate a motor vehicle. There are a number of issues that arise in order for this standard to be met by police, including the following:
Plain View/Plain Smell Doctrine. Assuming that the stop is valid, the next part of a DWI that our attorneys often examine is the validity of the arrest. A DWI arrest requires that police acquire incriminating evidence of intoxication. After effecting a valid stop, an officer is often able to see inside the vehicle while approaching the driver. Any evidence of intoxication (open alcoholic beverages, drug paraphernalia, etc.) is generally admissible as evidence because of the “plain view” exception. Under “plain view” exception to the warrant requirement (i.e. cannot conduct a search without a warrant as a general rule), an officer must be legally permitted to be in the area of observation, must find the evidence inadvertently, and it must be “immediately apparent” that the object constitutes evidence of a crime or contraband. Sometimes an officer affecting a traffic stop does not have visual evidence of intoxication, but can smell an odor emanating from the vehicle or the driver that acts as evidence of intoxication. Common smells such as alcohol on a driver’s breath or marijuana (burnt or otherwise) coming from the vehicle are admissible as evidence under the “plain smell” doctrine as long as the three criteria for the “plain view” exception are met. Expert defense witnesses have testified at trial that an officer’s ability to detect the odor of alcohol is correct less than 50% of the time, calling into question the use of this as reliable evidence of probable cause of intoxication.
Under the Influence. An arrest for Driving While Intoxicated must be supported with evidence of intoxication, defined by the Supreme Court as “a substantial deterioration or diminution of the mental faculties or physical capabilities of a person whether it be due to intoxicating liquor, narcotic, hallucinogenic or habit producing drugs”. This “probable cause” requirement is often partially met by an officer’s observations of the driver. The nature of the traffic stop (such as failure to maintain lane or driving without headlights at night) along with bloodshot, watery eyes is very often cited by the arresting officer as reasonable suspicion supporting further testing. Experienced defense attorneys are able to provide alternative explanations for red eyes and can call into question the probable cause surrounding your DWI arrest. Anything from allergies, fatigue, even headaches have been used to explain red eyes. When considering drivers under the influence of alcohol, lay testimony is sufficient to establish intoxication, however this is not necessarily the case for narcotics and hallucinogenic drugs. Under State v. Bealor the court held that a common police officer (as opposed to a specially trained Drug Recognition Expert) could, through the course of his training and experience, identify a person under the influence of marijuana. This ruling has since been expanded under State v. Sorrentino, where the court held that a common police officer could, through the course of his training and experience, identity a person under the influence of drugs (no longer limited to marijuana). Though this decision is currently being reviewed on appeal, for now a common officer is able to testify as to intoxication on drugs and achieve a conviction for Driving While Intoxicated. This makes it critical that a person arrested for Driving While Intoxicated for a substance other than alcohol (marijuana, narcotics, etc.) contact one of our experienced attorneys immediately. This area of the law is still in flux and that uncertainty can benefit you. Our attorneys are experienced at calling into question the testimony provided by the arresting officer.
Standardized Field Sobriety Tests. Whether the suspected substance causing intoxication is alcohol or another drug, police officers are likely to perform several different types of field sobriety tests. The three tests considered to be Standardized Field Sobriety Tests (SFST) are the one-leg stand test, the walk and turn test, and the horizontal gaze nystagmus test. These tests each have specific instructions that must be properly explained by police before execution. When an officer fails to properly administer the SFSTs, the validity of the test can be compromised. The Law Offices of Jonathan Marshall employs attorneys that are certified in field sobriety tests, and even attorneys that are Standardized Field Sobriety Test Instructors. These qualifications allow us to scrupulously examine the validity of the field sobriety tests and use any mistakes made by the police to your benefit. Failure of a SFST can also be the result of a multitude of other factors. The National Highway Traffic and Safety Administration (NHTSA) recognize that inclement weather, uneven testing surface, and other environmental factors can effect the validity of test results. In addition to this, the person being tested can fail for a variety of personal reasons. The type of footwear being worn, the subject’s weight (overweight persons can struggle with SFSTs), the subject’s age, and past medical history can all impact the performance on SFSTs. An experienced attorney can use this type of exculpatory evidence to call into question the validity of SFST results. At the Law Offices of Jonathan Marshall, our DWI defense attorneys combine for over 100 years of criminal legal experience.
Other Potential Bases for Arrest. Psychological and physical tests, other than approved standardized field tests, are often used by police to establish probable cause for a drunk driving arrest, but can be unreliable due to a number of factors. Tests such as alphabet recitation, time awareness, and counting backwards between specific numbers are all tests used by police to determine whether a subject is mentally impaired. Physical tests used by police include finger-to-nose testing and other tests that require that the subject close their eyes and maintain balance. Although intoxicated persons rarely if ever pass these tests, there are a multitude of reasons a sober person could fail. Illness, fatigue, old age, and many other factors common among drivers could lead to poor performance on physical sobriety tests.
Prosecutors are banned from plea-bargaining a DWI to a lesser charge, however a qualified attorney can sometimes avoid a DWI conviction by calling into question the probable cause attained by police during the arrest. The attorneys at The Law Offices of Jonathan Marshall are experienced and qualified to examine police reports and video evidence and find any inconsistencies or mistakes in the arrest that can create necessary leverage to avoid a DWI conviction. Call us now at (732) 450-8300.