I take often about the "three windows" in a DUI case. All three windows need to be fully examined, and each offers the opportunity for potential case dismissal or not guilty verdicts at trial.
1. The stop
2. The arrest
3. The chemical tests
I was in an implied consent hearing yesterday and thought further about the basis of the arrest. Many cops rush this process, because well "they know" the person is probably breaking the law. Part of the officer's examination can certainly be subjective, because they are trained and do have experience dealing with drunk drivers and non-drunk drivers. Judges will give their "opinion" some value when it comes to the decision, but they must still "SHOW THEIR WORK"
It's not enough to tell a hearing officer or judge that in their opinion the driver probably committed some sort of DUI offense. The standard of probable cause needs more than a hunch.
Outside of the officer's observations, we have the preliminary breath test, field sobriety tests and the driving of the driver.
If the cop admits that the traffic violation was something like no turn signal, some speeding, something that both drunk drivers and non-drunk drivers do, that's a good start for showing lack of probable cause. What if no PBT was done? Well then we have no "over 0.08" breath test. It then comes down to the field sobriety tests and the officer's observations.
What will make or break this evaluation is if the officer did the proper tests and if they were done correctly, including proper instructions, conditions and fairness in evaluation. If the officer is able to testify to conducting these properly, their "opinion" that the driver was impaired of intoxicated will hold weight. It's rare that an officer screws this up enough not to get over the line, but some officers simply don't know what they are doing, and hopefully there is a video and or/audio to back that up.
This is why I tell clients after the fact that it is best to not say a single world, do not take a PBT (it's a civil infraction) and do not submit to any field sobriety tests. Hand over any identification requested and be cooperative. It will frustrate the heck out of the cop, because you are making his judge very difficult. If a client actually stuck to this script, it's arguable that an officer would NEVER have probable cause to arrest for a DUI without admissions, PBT's, field sobriety and opportunity to observe impairment. This assumes there is no poor driving and we have some speeding or failure to signal type traffic offense.
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