What do police officers look for when searching for drunk drivers on the highways? [answer]

Why did the officer make me follow a penlight with my eyes to the left and right? [answer]

What do police officers look for when searching for drunk drivers on the highways?

The following 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 Traffic Administration:

• Turning With a Wide Radius
• Straddling Center of Lane Marker.
• "Appearing to be Drunk"
• Almost Striking Object or Vehicle
• Weaving
• Driving on Other Than Designated Highway
• Swerving
• Speed More Than 10 mph Below Limit
• Stopping Without Cause in Traffic Lane
• Following Too Closely
• Drifting
• Tires on Center or Lane Marker
• Braking Erratically
• Driving into Opposing or Crossing Traffic
• Signalling Inconsistent with Driving Actions
• Slow Response to Traffic Signals
• Stopping Inappropriately (Other Than in Lane)
• Turning Abruptly or Illegally
• Accelerating or Decelerating Rapidly
• Headlights Off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Odor of alcohol on breath
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer's questions
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other "inappropriate" attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), 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 inevitably "fails". Thus, in most cases a polite refusal may be appropriate.

This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible in many states ; it is, however, admissible in Louisiana.

There are several adverse consequences to refusing to submit to a breath or blood test (or urine if neither are available or if drugs are suspected):

• Your First Refusal will get you 180 days with eligibility for hardship license after first 90 days.  Your Second Refusal will get you 545 days without eligibility for hardship license.

Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing.

No.  You do not have a choice; however, if you choose the breath test, the law permits you to have a second test of blood or urine.  The reason for option is because a breath sample is not saved and so cannot later be re-analyzed.

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

In Louisiana, the traditional offense is "driving while intoxicated" (DWI), or in some states, "operating while intoxicated" (OWI), or "driving under the influence of alcohol" (DUI). In recent years, however, 48 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%).

Touché!  It is blatantly unfair, we know. But the law in Louisiana provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit) or the individual refuses to take a chemical test.

WARNING: Be aware of a 15-day deadline for writing the Louisiana Department of Public Safety and Corrections to request a hearing on the suspension and to get an extension of the temporary license.

You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

First, you can call us at 225.344.0911 or you can visit our contact page, or send us an E-mail.

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

In Baton Rouge, Louisiana the normal range is from $1,500 to $2,500.

Factors that may cause the fee to be increased or decreased include:

• Is the offense a misdemeanor or felony?
• If prior convictions are alleged, the procedures for attacking them may add to the cost.
• The fee may or may not include trial or appeals.
• Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.

For a DWI First Offense, the fine ranges from $300 to $1,000 (plus court costs and other fees), and the jail time can be 10 days to 6 months (all can be suspended.) You will also receive 32 community service hours.  A substance abuse evaluation and driver improvement school is required.  In the event that  your BAC is over .15, you will receive a minimum of 48 hours in jail and a license suspension of 90 days.

For a DWI Second Offense, the fine ranges from $750 to $1,000 (plus court costs and other fees), and the fail time can be 30 days to 6 months (all but 48 hours can be suspended).  Your community service time will be 240 hours and you will be required to attend a substance abuse evaluation and driver improvement school.  In the event that  your BAC is over .15, the minimum mandatory jail time is 96 hours, and your Driver's License will be suspended for 1 year.

Louisiana law increases the punishment in drunk driving cases if certain facts exist. Call us to learn more

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 .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. 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.

"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 rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before 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. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

Potential defenses in a given Louisiana 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:

• Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
• Probable cause. Evidence will be suppressed if the Louisiana officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
• Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
• Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.
• "Under 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.
• Blood-alcohol 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.
• 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 30 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 results.
• Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
• Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
• License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.

You can call us for one, or short of that you can go to a law library (at courthouses and law schools) and research DWI law and blood-alcohol analysis.