The decision to arrest for DUI happens before you think
A new client was telling us the other day that she speaks fast when she is nervous. That’s not surprising; many people speak quickly when they are nervous. She also gets nervous when dealing with law enforcement. That is also not surprising. Most police officers, when asked, will admit that people often act nervously when dealing with law enforcement.
Our new client had been pulled over by law enforcement at 2:00 a.m. She had left a bar. According to the officer who stopped her car, she failed to maintain a single lane with her vehicle. Her tires crossed the yellow line. When the officer began to ask her questions that were clearly related to a DUI investigation, the client became nervous. The nervousness caused her to speak quickly and jumble her words. The officer had never met the client before. The officer had never heard her talk before. However, according to the client, the officer told her repeatedly that he knew she was on something because of the way she was speaking. The client tried to tell the officer that she fidgets and speaks quickly when she is nervous. The officer would not listen, and ultimately arrested her for DUI. Our new client was shocked that the officer assumed that her nervousness was a result of an intoxicant, and completely ignored her reasonable explanation. She explained that it felt like the officer had made up his mind to arrest her before she even stepped out of the car.
She just may have been right.
In its zeal to get tough on DUI, law enforcement has become increasingly aggressive in its “investigations” of DUI. Many of the local police departments, such as the Hillsborough, Pinellas, and Pasco County Sherriff’s offices, have created “specialized” DUI tasks forces. In Pinellas and Pasco, these are known as STEP units, or Selective Traffic Enforcement Patrols. On his agency’s website, Pasco Sherriff Bob White points out that, “these units stay very busy. In 2009, we arrested 912 people for driving under the influence in Pasco County”. Sherriff White further explains how his STEP units conduct “Wolf-pack” operations, aggressively patrolling the [predetermined] area locating impaired drivers”. The Pasco county Sherriff proudly evokes the image of hungry wolves hunting prey when describing its aggressive DUI practices.
Pinellas County law enforcement also describes its DUI enforcement policies using in a like manner, with St. Pete Police Officer Robbie Arcovich talking about “fishing for DUI drivers” in the St. Pete Times. The article commended Arcovich because he had notched over a thousand arrests, apparently leading the league in that category.
Clearly, we have aggressive police specializing in fishing for DUIs and hunting for drivers in the Tampa Bay Counties. I’ll admit it is possible that the officers are just that good that everyone the pull over is DUI, but it’s more likely that some people who are not committing the crime of DUI are getting arrested for the crime anyway. How can that be?
The crime of DUI is often very difficult to define. What is not difficult to undersnand is that it is perfectly legal to drink and drive, so long as one’s normal faculties do not become impaired. Under Florida Law, if one is under the influence of alcohol, but still can walk, talk, stand, and judge distances normally, then he is not impaired to the extent that his activity is criminal.
However, the standard DUI investigation conducted in Hillsborough, Pinellas, and Pasco Counties does not attempt to measure normal faculties. The battery of exercise typically done- walking on line heel to toes, standing on one foot- measure abnormal activities. Tests that would show normal faculties, like walking normally, are not tested. And the tests designed to measure blood alcohol; like the breathalyzer test, and blood draws, are never completed until after an individual has been arrested for DUI.
So where is the DUI investigation really happening? It’s happening before the driver is pulled over. The STEP officer, the Wolf-pack, they are looking for signs of abnormal driving. In their mind, abnormal driving observed at 2 a.m. in the morning means a likely DUI. I have analyzed hundreds if not thousands of DUI fact patterns, and it’s clear that the vast majority of DUI officers have made up their mind after watching a driving pattern, pulling a driver over, and smelling alcohol on their breath.
The problem with this is, of course, sometimes perfectly reasonable explanations exist for driving mistakes. Driving over the yellow marker could be an indication of impaired driving. However, it just as could easily be the result of someone talking on the cell phone, or switching the radio station. Speeding could be an indication of driving impaired. However speeding may also just be an indication that an impatient driver wants to get home. Likewise, driving slow could be an indication of impaired driving. But it could just as likely be the result of a safe, concerned driver.
Once the DUI officer has decided the driver is DUI, its game over. There is no unconvincing the officer that the driver’s normal faculties are not impaired. At that point in the investigation, the officer looks only for signs that indicate impairment. He ignores any signs that indicate sobriety. He also will not consider any reasonable explanations for the otherwise innocent activity. After the arresting officer has decided that he has a DUI, any evidence with multiple reasonable explanations will only be considered as evidence of DUI impairment.
Unfortunately for our new DUI client, she was leaving an establishment that served alcohol at 2 a.m. She let her tires slip over the yellow line. When the officer then stopped our client and smelled alcohol from the club on her body, it was game over for her. (Ironically, the client later blew a .000).
So when the client acted jittery, and began speaking fast, the DUI officer new that it had to be evidence of driver impairment. If not alcohol, then some sort of drug. The officer was not about to consider alternative possibilities for the jittery behavior. It certainly could not have been the result of a nervous woman afraid of the police.
