You are stopped by the police. It may be because of a checkpoint, the commission of an infraction or an accident. The officer approaches your driver’s side window. What facts must exist before you can be arrested and taken to perform a chemical test? The officer needs to have “probable cause.” If there is no probable cause, your attorney can make a motion which should result in a dismissal of your case.
Scenarios illustrating lack of probable cause occur when the police have very little evidence that you are guilty of impaired driving. The function of this Blog is to educate you so you do not create probable cause and facilitate your own arrest. Do not give the police any information which could aid the prosecutor in building a case against you. (Please review the previous Blog “Know to Say No” for details regarding refusing field sobriety tests, the Preliminary Alcohol Screening device and incriminating questions.)
“Probable cause” exists when the officer has a reasonable basis for suspicion which would cause a cautious person acting in good faith to believe that you are guilty of a DUI/DWI. Facts such as the odor of alcohol or an accident, in and of themselves, are not enough. The prosecutor will elicit from the officer testimony that a COMBINATION of facts existed which amounted to probable cause.
What are the facts at issue? The first fact is the driving. If the reason for the stop was a checkpoint or a broken taillight, there is no reason to suspect impairment. If you were accused of driving on the wrong side of the road or weaving all over the road, these facts indicate impairment. A neutral fact would be driving which results in the commission of a minor infraction but an infraction which could have just as easily happened when one was sober, e.g., speeding just over the limit or failing to come to a full and complete stop at a stop sign.
Secondly, what is your appearance? Is there the odor of alcohol on your breath? Is it strong or barely noticeable? Are your eyes red, watery or glassy? Is your speech thick or slurred? How is your coordination? Retrieving your license and insurance and exiting the car are at issue. The absence of physical manifestations is very helpful. The converse also applies.
HOW MANY FACTS ILLUSTRATING IMPAIRMENT CAN BE PRESENT AND STILL NOT AMOUNT TO PROBABLE CASE? This is a fact specific analysis. If you were in an accident and had the odor of alcohol, under Steinkrause v. Tatum 689 SE 2d 379, 201 NC App 289 (2009), that is enough to constitute probable cause in North Carolina. In State v. Bell (Tenn. 2014) the Supreme Court in Tennessee ruled that even if one passed the field sobriety tests but drove the wrong way on a divided highway, smelled of alcohol and admitted to consuming alcohol, probable cause existed. The court ruled that the excellent field sobriety tests did not outweigh the other facts which pointed to the existence of probable cause. The ruling in the Tennessee case is not universally accepted by other jurisdictions. Every case is factually unique.
Your attorney must focus on an analysis of the facts known to the officer at the time of arrest to determine whether these facts are sufficient to permit a reasonable person to believe that you committed the crime of impaired driving. It may not take much to constitute probable cause but do everything in your power to keep the evidence against you minimal.
