It happens every night, someone leaves a bar or a party and gets pulled over. The police ask you to take some tests “to make sure you’re ok to drive.” You take their tests, pass them, and they arrest you anyways. So, if you passed their tests, why are you being arrested?
The first thing to know is that to be arrested, they do not have to have proof beyond a reasonable doubt that you guilty of a DUI. All they need is probable cause, which is a very low standard. Basically, they must reasonably believe that a crime was, or has been, committed, and that you were probably the one who committed it. It is a low standard, and it doesn’t take much to meet it.
Now, after you are stopped, you’re asked you to step out of your vehicle. They want to you to do some tests for them, and they tell you they “just want to make sure you’re ok to drive.” This may raise some red flags, but if it sounds like they are trying to let you go (this may shock you, but they aren’t). They then start putting you through the field sobriety tests, and the one they will almost definitely ask you to take is called the horizontal gaze nystagmus test, or HGN. This is the eye test where they tell you to hold your head still and follow the tip of their finger, the tip of a pen, or some other object with just your eyes. What they don’t tell you, though, is that this test is looking for more than if you can hold your head still and follow an object with your eyes. They are looking for “nystagmus,” which is an involuntary jerking or twitching of your eyes that is present when a certain amount of alcohol is present in a person’s body. It is fast and something that you won’t know is happening. It also makes it impossible to determine, on your own, how well you did on the test. With this test, there are three clues they are looking for in each eye, smooth pursuit, whether your eyes follow the object in a smooth way or jerk, nystagmus at “maximum deviation,” whether your eyes are jerking or twitching at the furthest point they have you follow their object, and nystagmus prior to maximum deviation, whether the jerking or twitching is present before it gets to the furthest point. If they observe four out of six total clues it is considered to show signs of impairment.
The next test they like to administer is the walk and turn test, which is walking with one foot in front of the other, turning around, and coming back. With this test, too, they are not looking to see if you trip, fall, or some other obvious sign. There are actually eight different clues they are looking for on this test – not keeping your balance during the instructions, starting the test too early, not touching heel to toe on your steps, stepping off the line, stopping while walking, using your arms for balance, making an improper turn, and taking an improper number of steps. As you can see, these clues aren’t obvious, and some show up before you realize you have started the test. There are also a lot of chances to show these clues, missing heel to toe, for example, can happen on any of the steps and count as a clue. Stepping off the line can be difficult because they don’t have to give you a visible, actual line to walk on for the test and can ask you to “imagine” one on the ground, and using your arms for balance is subjective. On this test, if they observe at least two of the eight clues it can be deemed that you showed signs of impairment.
Finally, there is the one-leg stand test. With this test, they will have you raise one foot off the ground six inches and count, silently, until they tell you to stop. Again, they are looking for subtle clues, not clear and obvious ones. They are looking for swaying, hopping, putting your foot down, and using your arms for balance. If they observe two or more clues, it is deemed as showing signs of impairment. Like the other tests, the clues aren’t always obvious to you as the one taking the test. Swaying can be minor, and so can using your arms for balance.
Based on the officer’s observations on these tests they will usually ask you, after that, to take a breath test on the side of the road. This test is used to further establish probable cause to place you under arrest and charge you. They do not need it, though, to place you under arrest so if you refuse to take it, they can still place you under arrest for a DUI. Again, probable cause is a low standard, and it is not hard to meet, especially in these cases where it is based on the subjective observations of the officer. If you refuse the test, they have likely already decided they have grounds to arrest you, so the next step will be to put you in handcuffs. If you take it, it may depend on what the results are. However, if they observe signs of impairment on the field sobriety tests, they may still arrest you if you are under the legal limit on that test.
If you are arrested, you will be asked to submit to further testing at the jail. They can ask you to submit to another breath test and refusing that test is a criminal offense under North Dakota law. They can also ask you to submit to a blood or urine test, and if you refuse, they can get a warrant to compel you to take the test. If you refuse to submit to a test after they obtain a warrant, that too is a crime under North Dakota law. One thing to remember, if you are arrested, is that whether they read your rights or not (they are not required to in connection with a DUI arrest, but most of the time they will) you have a right to a reasonable opportunity to consult an attorney before submitting to a test. This does not mean you have a right to speak with a lawyer before deciding, and you may not be able to reach one (most DUI arrests happen late at night and even though I stay up late it is pretty hit-or-miss on getting me on the phone at 3:30 a.m.), but you have a right to be given the opportunity to try to reach one. You should try to assert that right if you have questions on what to do and law enforcement must afford you that opportunity.
As is true with any criminal case, if you find yourself facing a DUI charge you should consult with an experienced attorney to make sure your rights are protected. In North Dakota, you only have ten days after your arrest to request a hearing to try to protect your driving privileges and if it is not requested in that timeframe, you may have your license suspended without it thirty days after your arrest for at least ninety days. If you have been arrested for a DUI, call Curran Law Firm today and make sure you know what you are facing, and that your rights are protected.