"A majority of DUI and DWI arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's cond

With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver's license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

Currently, traffic safety proponents are urging that a police officer be authorized by statute to make a misdemeanor arrest for driving while intoxicated where the crime was not committed in his presence but where, after personal investigation, he finds reasonable grounds to believe that the person did commit the offense. These traffic safety people believe that such increased authority in the area of arrest would be helpful in the investigation of traffic accidents in which it is apparent that one driver was intoxicated but where the officer did not observe the accident.

In a few cases, a charge for driving while intoxicated may be filed solely on the basis of the complaint of a private citizen, and the police fear that the suspect is about to flee the jurisdiction. In these situations, whether a warrant must be issued to make a misdemeanor arrest, or whether the police may make a felony arrest without a warrant on the ground that there is insufficient time to secure a warrant depends on whether the suspect is still intoxicated at the time he is approached by the police. Of course, if some action occurs in their presence that gives them probable cause to stop him, the police may make a valid arrest without a warrant. However, if the suspect is not still intoxicated, and the police are not certain that a felony is involved, a warrant must be secured unless one of the police officers knows of previous convictions of the suspect that would raise the instant offense to a felony level. Consider the following cases:

With respect to a Rhode Island DUI, DWI, driving under the influence, or drunk driving prosecution, a majority of arrests for driving while intoxicated are made without warrants and are based on personal observation of the suspect's conduct by the arresting officer. This raises the constitutional issue, in nearly every case, of whether probable cause existed for the arrest. If probable cause to arrest did not exist when the police initially stopped the suspect, an illegal arrest was made and all evidence gained after the arrest would be inadmissible. While probable cause to arrest is rather apparent when a suspect was driving recklessly and a strong smell of alcohol on his breath was evident to the officer or the suspect got out of the automobile with a bottle of liquor in his hand, probable cause is not so apparent where an individual is stopped for a routine driver's license check or similar reason, and the officers smell alcoholic odors but do not detect further evidence of drunkenness. State courts divide on the question of probable cause to make an arrest under the latter fact situation. A Rhode Island criminal defense lawyer will generally analyze probable cause before they review other issues in the DUI or DWI case.

Currently, traffic safety proponents are urging that a police officer be authorized by statute to make a misdemeanor arrest for driving while intoxicated where the crime was not committed in his presence but where, after personal investigation, he finds reasonable grounds to believe that the person did commit the offense. These traffic safety people believe that such increased authority in the area of arrest would be helpful in the investigation of traffic accidents in which it is apparent that one driver was intoxicated but where the officer did not observe the accident.

In a few cases, a charge for driving while intoxicated may be filed solely on the basis of the complaint of a private citizen, and the police fear that the suspect is about to flee the jurisdiction. In these situations, whether a warrant must be issued to make a misdemeanor arrest, or whether the police may make a felony arrest without a warrant on the ground that there is insufficient time to secure a warrant depends on whether the suspect is still intoxicated at the time he is approached by the police. Of course, if some action occurs in their presence that gives them probable cause to stop him, the police may make a valid arrest without a warrant. However, if the suspect is not still intoxicated, and the police are not certain that a felony is involved, a warrant must be secured unless one of the police officers knows of previous convictions of the suspect that would raise the instant offense to a felony level. Consider the following cases:


Deputy sheriff had probable cause to arrest defendant without warrant for misdemeanor of disorderly conduct where deputy, after responding to report that Hispanic male in white car was causing damage to certain quarries, discovered red and white car defendant had been driving and saw him asleep in dry creek bed approximately 100 feet from car, front end of which was damaged consistent with its having been driven into and over rocks. Villafuerte v. Lewis (1996, CA9 Ariz) 75 F3d 1330, 96 CDOS 639, 96 Daily Journal DAR 970.

"Fellow officer rule" permits officer to arrest person for misdemeanor driving under influence (DUI) if one officer calls on another officer for assistance and combined observations of two or more officers are united to establish probable cause to arrest. West's F.S.A. §§ 316.645, 901.15(1). Sawyer v. State, 905 So. 2d 232 (Fla. Dist. Ct. App. 2d Dist. 2005); West's Key Number Digest, Automobiles 349(6).

Erratic driving alone is sufficient to raise the reasonable suspicion that a driver is driving under the influence of alcohol and to justify an investigatory stop; the fact that the stop ultimately leads to the discovery of drugs does not in retrospect render the stop pretextual. Croom v. State (1995) 217 Ga App 596, 458 SE2d 679, 95 Fulton County D R 2029.

The strong odor of intoxicants on a motorist's breath, standing alone, can provide a police officer with a reasonable, articulable, particularized suspicion that the motorist was driving while under the influence of intoxicating liquor, as basis for administering roadside sobriety tests. U.S.C.A. Const.Amend. 4; M.C.L.A. § 257.625(1). People v. Rizzo, 243 Mich. App. 151, 622 N.W.2d 319 (2000); West's Key Number Digest, Automobiles 419.

The arrest of defendant for operating a motor vehicle while under the influence of an alcoholic beverage was held to be improper, in State v. Robb (1972) 202 Minn 409, 195 NW2d 587, where defendant was found in his pick-up truck, which was parked on the shoulder of a road with its motor idling and its parking lights on, and defendant was lying on the seat with his head toward the right door and his seat on the floor without any part of his body touching the truck's operating controls.

Officer had probable cause for warrantless arrest for driving under influence where he found defendant sitting in car parked in middle of field, exhibiting poor motor control and slurred speech, and where there was no evidence that motorist had either left scene and returned or consumed alcohol at scene. Hedstrom v. Commissioner of Public Safety (1987, Minn App) 410 NW2d 47.

Offense of driving under influence was not committed in officer's presence, and appellant's arrest was illegal, where officer, after driving toward sound of squealing tires, observed appellant arguing with third person beside parked vehicle with motor off and no keys in ignition; third person's statement that appellant had been driving could not operate to satisfy presence requirement, appellant's statement that she had thrown keys so that third person couldn't get them was not implied admission that she had been driving, and statements and evidence obtained from appellant at police station were inadmissible as fruits of illegal arrest. State v. McDonnell (1984, Minn App) 353 NW2d 678.

Combined perceptions of two troopers satisfied presence requirement for warrantless misdemeanor arrest where one trooper saw defendant's car swerve over center line and another saw signs that defendant was intoxicated. State v. Jensen (1984, Minn App) 351 NW2d 29.

Police officer had probable cause to believe that operation of vehicle was occurring and properly arrested defendant for purpose of administering sobriety test when defendant started to put his keys into car ignition, where officer had seen defendant stagger out of tavern, enter car and place himself in driver's seat, car was illegally parked on sidewalk, and officer saw defendant engage in physical movements to put car in motion by placing key into ignition, even though engine had not been started. State v. Mulcahy (1987) 107 NJ 467, 527 A2d 368.

Officer's failure to formally announce defendant's arrest was not sufficient to vitiate officer's authority to direct administration of chemical blood alcohol test under CLS Veh & Tr § 1194(2)(a)(1) where defendant was unconscious when police first arrived at scene of accident and he remained comatose for approximately 2 more weeks. People v. Goodell (1992) 79 NY2d 869, 581 NYS2d 157, 589 NE2d 380.

Stationing of five- to eight-person police detachment along street constituted traffic checkpoint, which in absence of showing of necessity therefor was unconstitutional, where police closed one lane of travel in street, shone flashlights into passing vehicles to detect violations of law, pulled over defendant's vehicle because defendant was not wearing required seatbelt, and arrested defendant for driving while intoxicated. State v. Skiles (1994, Tex App Fort Worth) 870 SW2d 341, petition for discretionary review ref (Jun 29, 1994).

Substantial evidence of probable cause to arrest driver for driving while under the influence of alcohol (DWI) existed without field sobriety tests, for purposes of upholding driver's implied consent suspension; driver had been exceeding the speed limit by almost fifty percent, he engaged in evasive and furtive behavior in rolling down the window only slightly upon being stopped, driver was unable to pass his license through the narrow opening, demonstrating inadequate eye to hand coordination, he had bloodshot, glassy eyes, police officer detected odor of an alcoholic beverage, and driver admitted drinking, in addition to failing two of three field sobriety tests. Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo. 2000); West's Key Number Digest, Automobiles 349(6).

Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of...

Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement. Of course, this almost always gives rise to a “refusal” charge being levied against the suspect. In Rhode Island, a criminal defense attorney will often times utilize this refusal charge as leverage to obtain a dismissal in the criminal DUI matter. In light of the fact that a refusal charge is civil in nature as opposed to criminal, it is often a more favorable result to admit to the refusal charge in consideration of the criminal charge being dismissed. This practice has reached customary status among Judges and prosecutors across Rhode Island.

This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.

All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.

Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.

The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.

Cases:

Implied consent law applied broadly and generally to those who drive, and did not require proof of actual driving immediately prior to lawful arrest for driving while under the influence; thus, under statute providing for suspension or revocation of driver's license based on refusal to submit to chemical testing under implied consent law, proof that arrestee was driving immediately prior to the arrest was not required; abrogating Weber v. Orr,274 Cal.App.2d 288, 79 Cal.Rptr. 297; Medina v. Department of Motor Vehicles,188 Cal.App.3d 744, 233 Cal.Rptr. 557; Jackson v. Pierce,224 Cal.App.3d 964, 274 Cal.Rptr. 212. West's Ann.Cal.Vehicle Code §§ 13353, 23612. Troppman v. Valverde, 40 Cal. 4th 1121, 57 Cal. Rptr. 3d 306, 156 P.3d 328 (2007); West's Key Number Digest, Automobiles 144.1(1.20).

Police dispatcher who observed driver's refusal to consent to breath alcohol test over a closed circuit television did not "witness" the refusal, as required to endorse police officer's report of the refusal under the implied consent statute; when a person is observing via closed circuit television, she is completely reliant on the image, and perhaps sound, supplied by the camera in the other room, and as a consequence, there is no guarantee that she will be able to see and hear fully what is happening. C.G.S.A. § 14-227b(c). Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 922 A.2d 330 (2007); West's Key Number Digest, Automobiles 144.2(1).

Defendant's proclaimed fear of needles was not sufficient cause for his refusal to submit to blood alcohol concentration (BAC) test, following his arrest for driving under influence of alcohol (DUI); defendant indicated to officers that he simply "preferred" to have a breath test rather than a blood withdrawal, while defendant expressed general fear of needles, and generally referenced risk of contracting Acquired Immune Deficiency Syndrome (AIDS), defendant admitted that he had received shots, he denied ever having seen a psychologist for his fear, and he never identified any mental or medical conditions that would be adversely affected by administration of blood withdrawal. Halen v. State, 136 Idaho 829, 41 P.3d 257 (2002); West's Key Number Digest, Automobiles 144.1(1.20).

Testing after "accident": Intoxicated motorist who had been driving vehicle in an out of control manner and who eventually came to a stop in vehicle with a tire missing and damage to vehicle rim, was in an "accident" for purposes of automobile exception to physician-patient privilege contained in implied consent statute, and thus results of blood test taken from motorist were admissible in prosecution for driving under the influence of intoxicating liquor. M.C.L.A. § 257.625a(6)(e). People v. Green, 260 Mich. App. 392, 677 N.W.2d 363 (2004), appeal denied, 471 Mich. 873, 685 N.W.2d 669 (2004); West's Key Number Digest, Limitation of Actions 212.

"Confusion doctrine," under which drunk-driving arrestee might assert confusion arising from proximate advice by arresting or booking officers as to both Miranda right to counsel and implied-consent law that does not allow counsel for decision whether to submit to chemical testing of blood alcohol level, would apply, if at all, only where Miranda warning precede implied-consent warnings. Blomeyer v. State (1994) 264 Mont 414, 871 P2d 1338.

Defendant's due process rights were violated, even though he consented to withdrawal of blood, when he was shackled to hospital bed and held down by six persons while another person withdrew his blood at direction of police officers while defendant was resisting. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 10. State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (2d Dist.Clark County 1995).

Motorist's fear of invasive medical procedures, including injections and tests using needles, and concern about risk of contracting HIV (human immunodeficiency virus) did not justify refusal to submit to blood alcohol test. Jacobs v. Com., Dept. of Transp., Bureau of Driver Licensing, 695 A.2d 956 (Pa. Commw. Ct. 1997), appeal denied (Pa. Aug. 13, 1997).

Motorist's refusal to sign waiver of hospital-liability form, because he had lost his eyeglasses and was unable to read it, did not constitute refusal to take blood test for purposes of license suspension under implied-consent law, where motorist testified that he did not refuse to take blood test but refused to release hospital from liability by signing form, and waiver of hospital liability was not same as hospital consent form, which did not constitute impermissible precondition to chemical testing so as to excuse motorist's refusal to submit to blood test. Stump v. Department of Transp., Bureau of Driver Licensing (1995, Pa Cmwlth) 664 A2d 1102.

Motorist's fear that needle to be used to obtain blood sample was not sterile was not valid justification vitiating his refusal to submit to blood-alcohol test. Stenhach v. Department of Transp., Bureau of Driver Licensing (1994, Pa Cmwlth) 651 A2d 218.

Defendant failed to establish that she was physically unable to provide an alcohol breath test sample, and thus the Commonwealth was under no duty to prove that it offered defendant a blood test, during prosecution for driving under the influence (DUI); defendant provided no medical records or witness testimony to substantiate her claim that she had a chronic lung condition, she had successfully completed breath tests on two prior occasions when she was convictions of two prior DUI's, and police officer testified that defendant provided an adequate breath sample when he stopped her vehicle, that she failed to provide an adequate breath sample after he brought her to the police station, and that he believed that she "was not trying to give him a proper breath." West's V.C.A. § 18.2-268.2, subds. A, B. Sawyer v. Com., 43 Va. App. 42, 596 S.E.2d 81 (2004); West's Key Number Digest, Limitation of Actions 415.

Chemical intoxication tests—Extraction of sample from unconscious person

If driver is comatose or otherwise incapacitated so that he cannot appreciate significance of arrest, chemical test to determine his blood alcohol content may be administered without formal arrest so long as police who ordered test possessed probable cause for driver's arrest. People v. Goodell (1990, 4th Dept) 164 App Div 2d 321, 565 NYS2d 929, app gr 77 NY2d 961, 570 NYS2d 494, 573 NE2d 582 and affd 79 NY2d 869.

In prosecution on charges of vehicular homicide and driving under the influence of alcohol, motion to suppress evidence obtained through blood test taken at hospital while charged driver was unconscious was improperly denied, where, at time blood was taken, officers who investigated accident did not observe any signs of alcohol consumption by driver, police did not have a warrant to conduct test, no charges had been filed against driver, nor had he been placed under arrest. Commonwealth v. Kohl (1992) 532 Pa 152, 615 A2d 308.

The initial taking of blood by hospital personnel during their treatment of injuries suffered by the defendant in an automobile accident did not implicate any Fourth Amendment rights since the blood was taken because of the serious nature of the accident and before any request by a state trooper; however, state action was involved when medical personnel gave the blood test results to the trooper without his having obtained a search warrant and, thus, the Fourth Amendment applied to the release of the test results. Commonwealth v. Franz (1993, Pa Super Ct) 634 A2d 662.

Chemical intoxication tests—Test of sample drawn for emergency medical purposes

The trial court did not err in a second degree murder prosecution arising from an automobile striking a pedestrian which resulted in an involuntary manslaughter conviction by denying defendant's motion to suppress the results of a chemical analysis of his blood. Defendant was extremely violent on the ride to the hospital and at the hospital; the doctors could not understand defendant's responses to their questions; defendant had a high "index of suspicion" of a head injury and the tests defendant needed could not be conducted while he was combative and thrashing around; the physicians determined that they had to sedate defendant to treat him; and defendant was already unconscious when the officer arrived to obtain the blood sample for chemical analysis so that the officer could not advise defendant of his right to refuse the test. Defendant had no constitutional right to refuse the blood test and could not have "willfully refused" to submit to the test under G.S. § 20-16.2(c) because he was unconscious and officers did not request that he submit to the test. Although defendant contends that his statutory rights were violated in that he was conscious until he was rendered unconscious and the officers did not give him the right to refuse the test, no evidence exists to show that anyone other than the attending physicians made the decision to render the defendant unconscious, no evidence exists to show that defendant was rendered unconscious for any reason other than to treat him medically, there is no evidence of bad faith on the part of the charging officer, and there was a need to obtain a blood sample before defendant's alcohol level dropped. State v. Garcia-Lorenzo (1993) 110 NC App 319, 430 SE2d 290.

The trial court abused its discretion in admitting in evidence the blood alcohol test of a motorist whose blood had been drawn at the hospital for purposes of diagnosing his condition where neither the motorist's medical records, the label on the blood sample, nor the attending nurses could identify who had drawn the sample and transported it to the lab. State v. Cribb (1992, SC) 426 SE2d 306.

HIPAA won't help: Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuant to HIPAA for individual medical information did not overrule or preempt holding in State v. Hardy that a defendant did not have an expectation of privacy in blood-alcohol test results obtained after an accident solely for medical purposes. U.S.C.A. Const.Amend. 4; Health Insurance Potability and Accountability Act of 1996, § 262(a), 42 U.S.C.A. § 1320d; 45 C.F.R. §§ 160.203, 164.104, 164.512(f)(1)(ii)(B) (2006)..Murray v. State, 245 S.W.3d 37 (Tex. App. Austin 2007), reh'g overruled, (Jan. 17, 2008) and petition for discretionary review refused, (June 11, 2008); West's Key Number Digest, Automobiles 411.

"In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test"

In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test. These cases are referred to as “observation” cases. As one can imagine, it is more difficult for the prosecution to prove the elements of a DUI without an empirical analysis of the suspect’s blood alcohol content; however, it can be done in a variety of different factual scenarios. Objective signs of intoxication, those ordinarily testified to as having been observed by the arresting officer or other prosecution witness, include the odor of alcohol on the breath, slurring of speech, inflamed and watery eyes, a ruddy complexion, an unsteady gait, and poor coordination. Usually, one or more of these observed signs comprise the basis for the officer's probable cause in making the arrest. However, as is discussed in the section that follows, a variety of conditions affecting an individual's health can present the same or similar symptoms.

In Rhode Island, the prosecution can prove the elements of a DWI or DUI charge without the admissibility of a chemical test. These cases are referred to as “observation” cases. As one can imagine, it is more difficult for the prosecution to prove the elements of a DUI without an empirical analysis of the suspect’s blood alcohol content; however, it can be done in a variety of different factual scenarios. Objective signs of intoxication, those ordinarily testified to as having been observed by the arresting officer or other prosecution witness, include the odor of alcohol on the breath, slurring of speech, inflamed and watery eyes, a ruddy complexion, an unsteady gait, and poor coordination. Usually, one or more of these observed signs comprise the basis for the officer's probable cause in making the arrest. However, as is discussed in the section that follows, a variety of conditions affecting an individual's health can present the same or similar symptoms.

Cases:

An eyewitness bystanders' statement identifying driver as operator of vehicle at time of accident, odor of alcohol on driver's breath, slurred speech, and results of field sobriety tests provided probable cause to arrest driver for driving under influence of intoxicating liquor. U.S.C.A. Const.Amend. 4. Paquette v. Hadley, 45 Conn. App. 577, 697 A.2d 691 (1997).

Conviction for driving under the influence of alcohol to extent it was less safe to drive was supported by evidence that motorist abruptly turned left from right-turn-only lane in front of another vehicle and nearly caused accident, that officer activated his emergency lights and siren, that motorist continued driving but eventually stopped car, that officer noticed odor of alcohol on motorist's breath and that he had bloodshot and glossy eyes, that motorist admitted to having consumed one or two beers, and that motorist failed field sobriety tests, even though motorist's conviction for making improper turn ultimately was reversed. O.C.G.A. § 40-6-391(a)(1). Burke v. State, 233 Ga. App. 778, 505 S.E.2d 528 (1998).

State trooper's observations gave him probable cause to arrest motorist for driving while intoxicated, as required to support suspension of motorist's license; trooper observed motorist's vehicle swerve from center line on two occasions and noticed strong odor of alcohol when he pulled motorist over, motorist admitted to drinking four or five beers, and motorist failed series of roadside sobriety tests, including reciting alphabet, walk-and-turn test, one-leg stand test, and gaze nystagmus test. V.A.M.S. § 302.505. Poage v. Director of Revenue, State of Mo., 948 S.W.2d 194 (Mo. Ct. App. E.D. 1997).

Information alleging that driver lost control of vehicle, which left road and struck tree, that investigating officer smelled alcoholic beverage in vehicle and on driver's breath, and that driver had admitted having "had like 2 beers," was sufficient to allege offense of common law driving while intoxicated, even though toxicological report had shown blood alcohol content of only.07 of one per centum by weight; low blood alcohol content only created presumption of nonintoxication, which state could rebut. McKinney's Vehicle and Traffic Law §§ 1192(3), 1195(2)(c). People v. McConnell, 11 Misc. 3d 57, 812 N.Y.S.2d 742 (App. Term 2006); West's Key Number Digest, Automobiles 353(6).

Police officer who was outside of his jurisdictional city limits and had no warrant had sufficient personal observation that criminal offense was being committed in his presence giving him authority to arrest defendant for driving while intoxicated (DWI); dispatcher had relayed information from concerned citizen about suspected intoxicated driver, officer had been told what vehicle to be looking for, and after identifying suspect vehicle and corroborating information provided by concerned citizen, officer observed driver steer out of her lane of traffic several times, cross into oncoming traffic, and make wide right turn and leave roadway. V.T.C.A., Penal Code § 49.04; Vernon's Ann.Texas C.C.P. art. 14.03. Leonard v. State, 135 S.W.3d 98 (Tex. App. Texarkana 2004); West's Key Number Digest, Limitation of Actions 349(12).

It is important to keep in mind that certain observations may be the result of conditions that are not related to the ingestion of alcohol. At times, arresting officers or others may overlook the possibility that the defendant's apparent intoxication is the result of illness or injury. A diabetic can appear drunk without having had a drink and can die if not properly treated. Likewise a person suffering an automobile accident can appear drunk solely from the shock. The smell of alcohol found on the defendant's breath could be caused by a mouthwash. The defendant's eyes could be red for any number of reasons. The suspect's natural speech may tend to be slurred, or his natural walk may tend to be unsteady. One of the most condemning indications of extreme intoxication is that the defendant lost control of his bowel or bladder function; however, this might also happen if the defendant were very sick.

Conditions giving the appearance of intoxication or simulating certain characteristics of intoxication that may be confused by arresting officers or other witnesses as intoxication include:

Flushed face caused by:

Blushing
Diabetes
High blood pressure
Menopause
Poisoning
Sunstroke

Acetone odor (a fruity odor) of the breath caused by:

Amnesia
Blood poisoning
Brain concussion and other brain injuries
Delirium tremens
Diabetes
Epilepsy
Food poisoning
Intestinal obstruction
Migraine headache
Nervous disorder
Starvation
Stomach cancer
Stomach ulcer
Vomiting

Eye disorder caused by:

Brain hemorrhage
Drugs
Fractured skull
Fright
Hay fever
High blood pressure
Nausea
Pain

Speech disorder caused by:

Adenoid problem
Cleft palate
Dislocation of jaw
Hysteria
Infection
Migraine headache
Toothlessness

Poor coordination (ataxia) caused by:

Exposure to gases, drugs, or chemicals such as carbon monoxide, barbiturates, or industrial chemicals
Inner ear infection
Muscle spasm or injury
Nerve injury
Shock
Spinal cord injury or disease

Hallucinations (delirium) caused by:

Bites or stings
Blood loss
Diabetes
Drugs
Infection
Poisons or poisonous foods

Drowsiness caused by:

Anemia
Brain concussion
Diabetes
Drugs
Sickness

Unnatural heavy sleep (coma) caused by:

Blood clot
Brain concussion
Diabetes
Exposure to chemicals
Heat stroke or high temperatures
Hysterical trance
Shock


An indictment alleged that defendant drove while intoxicated by reason of introduction of alcohol into his body. At trial, defendant introduced evidence that he was taking an anti-depressant drug at time of offense, and that this drug contributed to his intoxication. Held, intoxication resulting from combination of alcohol and a drug that makes a person more susceptible to influence of alcohol is legally equivalent to intoxication by alcohol alone. Trial court did not err by so instructing jury, and by authorizing defendant's conviction if jury found he was intoxicated by reason of introduction of alcohol, either alone or in combination with the drug. Sutton v. State (1993, Tex App Amarillo) 858 SW2d 648, petition for discretionary review gr (Nov 17, 1993).

Traditionally, the police have requested persons suspected of intoxication to perform certain physical tests, and inability to adequately perform was considered to corroborate their conclusion of intoxication based on objective signs. Perhaps the oldest and best known test for intoxication was the request to walk a straight line. However, while an intoxicated person will encounter difficulty in walking a straight line, there are also many sober people who cannot walk a straight line and, since the police usually do not know how the individual walks when completely sober, this test does not readily establish intoxication.

Alternatively, a suspect may be asked to put his finger to his nose, to balance on one foot, perhaps with the eyes closed, to balance on a narrow stool, to stand or walk heel to toe, to work mathematical problems, or to do any other task where the results are thought likely to corroborate police opinion of intoxication. However, the successful or unsuccessful accomplishment of any of the above tasks indicates little or nothing regarding intoxication in the light of individual performance differences and the effect of various medical conditions on performance.

The police have sometimes shone a light into the eyes of a suspect and testified that the manner of the contraction of the pupil indicated intoxication. However, medical authorities do not presently consider the manner of contraction of the pupil to have substantial relationship to intoxication, at least when the suspect's normal reaction is not known.

The arresting officer's testimony as to the slowness of the pupils to react may be easily discredited as a valid intoxication test if the arresting officer had no mechanical means of timing the slowness of pupil reaction. It also is apparent that the officer is not qualified medically to distinguish other conditions that might cause slowness of pupil reaction.

Cases:

Police had "reasonable grounds" to believe that a motorist was driving under the influence of alcohol when they arrested her at the police station for DUI after having arrested her at the scene for reckless conduct, where they saw her fall against the back of her vehicle when she first exited it; observed a runny nose, watery, glassy, bloodshot eyes, and a very strong odor of alcohol on her breath; learned that she had drunk three or four glasses of champagne; gave a field sobriety test which she failed; and spoke with and observed her for 20 minutes before giving a breath test. 625 ILCS 5/2-118.1(b)(2), 11-501 (1996 Bar Ed.). People v. Fortney, 297 Ill. App. 3d 79, 231 Ill. Dec. 720, 697 N.E.2d 1 (2d Dist. 1998).

Statute providing that standardized field sobriety tests (SFST) may serve as evidence, in a prosecution for operating a vehicle while under the influence of alcohol, if the officer administered the tests in substantial compliance with generally accepted testing standards, violated constitutional provision granting the Supreme Court exclusive rulemaking authority on procedural matters; the legislative enactment was in conflict with Supreme Court's Homan decision implicitly interpreting rule of evidence requiring expert testimony to be reliable as requiring strict compliance with generally accepted testing standards for field sobriety tests. Const. Art. 4, § 5(B); R.C. § 4511.19 (2001); Rules of Evid., Rule 702. State v. Weiland, 127 Ohio Misc. 2d 138, 2004-Ohio-2240, 808 N.E.2d 930 (Mun. Ct. 2004); West's Key Number Digest, Limitation of Actions 55.

Horizontal Gaze Nystagmus (HGN) and finger-to-nose field sobriety tests produced evidence of purely physical nature, and defendant's performance of those tests did not compel her to testify against herself. Const. Art. 1, § 12. State v. Riddle, 149 Or. App. 141, 941 P.2d 1079 (1997).

Evidence was sufficient to support conviction for driving while intoxicated; although State did not adduce what, how much or when defendant consumed alcohol, defendant crashed his motorcycle trying to negotiate simple turn under safe driving conditions, when police officer arrived, defendant smelled of alcohol, performed simple tasks with difficulty, slurred his speech, swayed while standing, walked unsteadily, showed all six signs in horizontal gaze nystagmus test, could not perform walk-and-turn test, refused to perform one-legged stand test, admitted he had been drinking, and although defendant sustained abrasions and contusions, he did not appear to be in pain. V.T.C.A., Penal Code § 49.04. Letner v. State, 138 S.W.3d 539 (Tex. App. Beaumont 2004); West's Key Number Digest, Limitation of Actions 355(6).

Failure of suspect to perform well on either walk-and-turn sobriety test and one-leg stand sobriety tests is only evidence of impairment, and thus, a trial court commits error when it allows an expert on administering the tests, over objection, to correlate a suspect's performance on either of such tests to a blood alcohol content. Smith v. State, 65 S.W.3d 332 (Tex. App. Waco 2001), reh'g overruled, (Dec. 28, 2001); West's Key Number Digest, Criminal Law 474.2.

Trooper's visual observations of driver's car, coupled with fellow trooper's information that radar showed driver's car approaching at a speed in excess of the speed limit, were sufficient to warrant a person of reasonable caution to believe that driver was speeding, such that trooper had probable cause to make initial stop of driver's vehicle and driver's license could be revoked under implied consent statute for refusing breath test; Department of Licensing was not required to produce foundational evidence to support the radar reading. West's RCWA 46.20.308. Clement v. State Dept. of Licensing, 109 Wash. App. 371, 35 P.3d 1171 (Div. 1 2001), review denied, 146 Wash. 2d 1017, 51 P.3d 87 (2002); West's Key Number Digest, Automobiles 349(2.1).

Testimony of 16-year police veteran regarding his training and experience in administering and assessing field sobriety tests provided sufficient foundation to admit officer's testimony regarding such tests in administrative proceeding to revoke driver's license; officer testified he had received training in conducting, and had instructed others to conduct, horizontal gaze nystagmus (HGN) test, that he did not use HGN test in isolation to determine probable cause and did not attempt to use it to extrapolate driver's blood alcohol concentration, and that he had significant training in standardized field sobriety testing based on studies conducted by National Highway Traffic Safety Administration. Smith v. State ex rel. Wyoming Dept. of Transp., 11 P.3d 931 (Wyo. 2000); West's Key Number Digest, Automobiles 422.1.