Law enforcement officers across the country are trained on how to spot drivers who may be under the influence of alcohol or a controlled substance. Overwhelmingly, the first observations by those officers are when they see someone driving. We recently covered the 24 driving cues of DUI detection published by the National Highway Traffic Safety Administration (NHTSA). Those cues included driving conduct, such as weaving, straddling lane lines, drifting, and varying speeds. However, the DWI investigation does not stop there. Officers then approach the driver to see if that person is indeed impaired. NHTSA trains officers to look for 10 post-stop cues of DWI detection.
The post-stop cues of DWI detection are important to evaluate whether it was legally proper to expand the detention of a driver. Each incremental intrusion during a traffic stop must be justified by one of the following: “(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry.” Askerooth. Evaluating the validity of the DWI investigation at the roadside can be important if you are seeking to challenge your DWI in a pre-trial suppression hearing, at jury trial, or at implied consent hearings.
The 10 post-stop cues published by NHSTA include:
- difficulty with vehicle controls;
- difficulty exiting the vehicle;
- fumbling with driver’s license, registration, or insurance;
- repeating questions or commands;
- swaying, unsteady, or balance problems;
- leaning on the vehicle;
- slurred speech;
- slow responses to the officer or asking the officer to repeat themselves;
- providing incorrect information or changes answers; and
(10) odor of alcoholic beverage from the driver.
Difficulty with the vehicle controls can include failing to put the vehicle in park and having trouble turning the radio down. Officers also like to note if someone fumbles with getting their driver’s license out of their wallet or purse. If a driver is not exhibiting those cues, such as managing their vehicle’s controls well and having no problems getting their driver’s license out, then you can argue they do not have the symptoms of an impaired driver.
Once an officer asks a driver to step out of the vehicle to investigate a possible DWI further and begin field sobriety testing, the cop may note whether someone stumbles out of their vehicle. They will also observe if someone is unsteady on their feet and has trouble balancing. Besides visual indicators of a person’s physical impairment, the officer will also listen to hear whether someone sounds impaired if the driver is slurring their words or provides slow responses to questions. They will also often note whether they smell an odor of alcoholic beverage coming from the driver. Not listed in the 10 post-stop cues by NHTSA is whether someone has bloodshot and watery eyes, even though it is a very common trait recounted by law enforcement in DWI arrests.
Not every DWI case is the same. Not every post-stop cue is as bad as it seems.
Difficulty exiting a vehicle can be extreme or incredibly minor. Retrieving any video and audio evidence of a DWI arrest can be crucial in evaluating whether law enforcement followed proper protocol.