Officers are generally trained to say it was the totality of circumstances that led them to believe John Doe was intoxicated. They will say they had not made that determination before contact with the client. It is important that you get the officer to admit that he/she had not made the determination that your client was intoxicated when they approached the vehicle after the stop. This is important because if the officer is unable to establish that your client was intoxicated upon his initial observation of the client, he will eventually have to say that the client's poor performance on the field sobriety tests led the officer to arrest for intoxication.

  1. Odor: Usually an officer will testify that he/she smelled an odor of intoxicating beverage on the client's breath. You should inquire from the officer if they could tell specifically what your client was drinking based on the odor. Ask if they could tell what time your client started drinking based on the odor. What time they stopped drinking based on the odor. Could they tell how much over a specific time they drank based on the odor. Have them admit that the only thing they could determine based on the odor is that your client had something of an alcoholic nature to drink prior to the contact. It is not illegal to have had something alcoholic to drink and drive a car.
  2. Eyes: As with odor, no determination can be made about the amount of alcohol a person consumed based on the condition of their eyes, i.e. bloodshot, watery etc. You can and should ask the officer about factors that cause those various conditions besides alcohol intoxication. For example, allergies, being in a smoky environment, a lack of sleep are all alternative explanations to bloodshot, watery eyes. You can get the officer to admit that when he was standing on the side of the road attempting to make a determination as to whether or not to arrest an individual for driving while intoxicated, he didn't ask if the defendant suffers from allergies, was in a smoke-filled room or asked him when was last time he slept.
  3. Speech: It is common for a police officer to indicate that the client's speech was slurred. You should be able to articulate, and get the officer to talk about speech being broken down into the mechanics of speech vs. cognitive clues of intoxication as it relates to speech in the Alcohol Influence Report. If the officer indicates slurred speech but no confusion or incoherence then talk about no cognitive sign of intoxication.
  4. Balance: As with the other observations made by the police officers, you can and should go through the various factors having to do with balance and walking that the officer did not specifically check on the Alcohol Influence Report. For example, did the officer say he observed the client swaying? Take that officer through all of the factors that he did not observe. Make the officer testify that the client wasn't observed to be staggering, stumbling or falling.

At this stage in cross-examination, you should emphasize that up to this point, the officer could have, but didn't arrest for driving while intoxicated. He wasn't yet convinced that the individual he pulled over was intoxicated and had this client successfully completed the field sobriety tests, the officer would not have arrested him. Once you are able to show that the officer did not administer the field sobriety tests properly, he cannot go back and say that he would have arrested the client anyway based on his initial observations.

Travis Noble is a graduate of the National College for DUI Defense at Harvard University, and he lectures at seminars nationwide on DWI/DUI topics. He is the lawyer whom other lawyers consult to defend their DWI clients. Most importantly, he has a track record of successfully defending some of the toughest DWI cases in Missouri and beyond.

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