Just about all officers are trained by another officer using the materials compiled by the National Highway Traffic Safety Administration (NHTSA). NHTSA divides DUI detection into 3 phases:
- vehicle in motion
- personal contact, and
- field sobriety tests.
These three phases, along with a possible preliminary breath test, are supposed to guide the officer into making a correct arrest decision.
Why did the officer suspect I was driving under the influence before he even talked to me?
Some people are surprised that they are suspected of DWI even before the officer exits his car door. It’s not unusual to hear the officer comment on his car video that “I’ve got another DWI!” right after he turns his emergency lights on.
There are 24 things that officers are trained to look for while you drive. These 24 “cues” are divided into 6 subcategories. Note that if all these cues are common in drunk driving cases, then not doing any of these behaviors should be proof of normal, sober behavior.
Concerning “proper lane position” officers look for:
- Weaving (zig-zagging)
In Virginia, it’s not illegal to weave within your lane. If this is the reason the officer pulled you over, your case may be dismissed by a judge.
Weaving across traffic lines
Because our firm defends driving while intoxicated cases all over Virginia, I drive a lot. I commonly weave, cross lines, and drift without consuming any alcohol – especially on winding empty highways. The NHTSA manual makes no allowance for road and traffic conditions.
Remember: If the stop is bad, the whole case is bad! The Fourth Amendment requires that the evidence against you be thrown out.
Straddling a lane line
“Riding the line” does not violate the Code of Virginia. Prosecutors have rightly argued that two cars heading toward each other on the same line would crash. Virginia court cases, however, have consistently ruled that your tire needs to at least touch to the left of the line.
- Drifting within a lane
- Swerving within and without lanes
- Turning with a wide radius
- Almost striking an object or other vehicle (apparently actually striking objects does not count!)
In “speed and braking problems” NHTSA trains officers to look for:
- Stopping problems (stopping too far, too short, or too jerky)
- Varying speed between slow and fast
- Rapid Acceleration or deceleration
- Slow speed (>10 mph under speed limit)
Virginia highways do not commonly have minimum speed limits. Further, Virginia case law shows that you can be convicted for reckless driving even if you are going the speed limit if the road conditions are poor. Slow speed alone is not usually enough for an officer to stop you in Virginia.
Officers also watch for “vigilance problems” that include:
- Driving in the wrong lane or driving the wrong way
“The officer told the magistrate that I was ‘driving on the wrong side of the road.’ There is no way that I was driving in the wrong lane.”
This may be another case of “cop speak.” It is fairly common for cops to say this if your tire just crossed the line for a fraction of a second. Technically, your car is in the wrong lane.
Driving without your headlights on
“I got pulled over for not having my headlights on. They’re automatic on my car but my wife must have switched the setting. Will this help my case?”
Yes and a bigger no. This is happening more and more. The excuse does show that you were not driving without headlights because you were drunk. However, even if you were driving without headlights by mistake, the police officer can still pull you over. The judge may not find you guilty of driving without headlights, but all the DWI evidence can still be used against you.
Slow response to traffic signals
Cell phones probably account for far more late starts from traffic lights than anything else.
Slow response or failure to respond to the officer’s signals
“I pulled over in a safe place as soon as I saw the lights. The officer told the magistrate I took too long.”
Police officers will tell you that you are supposed to pull over as soon as they turn their lights on; they have determined that it is safe. Most clients, though, will drive until they find a safe place to pull over. This can work against you when the officer testifies that it took you too long.
Stopping in the lane for no apparent reason
Failure to signal or using the wrong signal
The Code of Virginia does not require you to signal traffic changes at all times. The Code requires you to signal only when other traffic can be affected.
According to NHTSA, “judgment problems” are also signs of drunk driving:
- Illegal or improper turn (too fast, too jerky, too sharp, etc.)
- Virginia law only requires you to use signals when another vehicle may be affected by your move. If you were driving pretty much alone, late at night this might make a good defense. If the stop is bad, the whole case is bad according to the “fruit of the poisonous tree” doctrine.
- Driving on something other than a designated roadway
- Improper or unsafe lane change
- Stopping inappropriately in response to an officer
- Following too closely
- Inappropriate or unusual behavior (throwing objects, arguing)
If the officer is driving close enough to see you, then NHTSA provides the following “appearing to be impaired” clues:
- eye fixation (just staring out of the window)
- tightly gripping the steering wheel
- driver’s head protruding from vehicle
- slouching in the seat
- gesturing erratically or obscenely
- face close to the windshield
Finally, officers are trained to watch what the citizen does after the flashing lights and siren comes on in “the stopping sequence:”
“Flashing emergency lights or a siren demand and divert the driver’s attention …”
- An attempt to flee
- No response
- Slow response
- An abrupt swerve
- A sudden stop
- Striking a curb or other object
“The officer told the magistrate that I swerved across the line. What defense do I have?”
First, there are numerous explanations for swerving. Most of these are a lot more common causes of swerving than drunk driving: you dropped something, were distracted by your child, were talking on your cell phone, texted, were eating, drinking, looking for directions, etc. All of these are normal, sober reasons why you could have swerved.
Second, if you only violated 1 out of 24 cues, it means that you have 23 cues that show normal, sober behavior! Each of these can be drawn out in cross examination by your attorney. For example:
- You asked him to lower his window?
- He responded to your request immediately and moved his hand towards the button?
- You are trained to watch his hands for your own safety?
- You were watching his hands?
- His hand movements were normal?
- His finger went right to the button? and he lowered the window?
- When he lowered the window, there was no evidence of loss of motor skills
- Wouldn’t you consider that normal, sober behavior?
Third, officers are increasingly using dash cam and vie view video in their cars. In a surprising number of videos, all that can be observed is normal, sober behavior.
“I know that I did not swerve. Why can’t I testify to that?”
You can testify. It’s just that the judge is unlikely to believe you without some other, independent proof.
I see this realization hit people representing themselves every day I’m in court.
Sometimes, the judge will explain to the citizen: “Look. I have you saying you didn’t swerve and the officer saying you did. I have to decide who to believe. By your own admission you were drinking and I can probably safely assume that Officer Martinez was not drinking at work. You were probably thinking about other things while Officer Martinez was just observing you. Whose testimony do you think I’m going to give more weight to?
“But they have no proof that I swerved!”
I hear these comment quite a bit. I usually ask, “What do you mean, ‘they have no proof’?” Usually my client means that they have neither video evidence nor another person that observed the swerve. The problem is, the judge believes that they have the best evidence that there is: unbiased, eyewitness testimony by a professionally trained observer.
“But there is no video!”
Our law in Virginia was established in 1607 when the colonists landed in Jamestown. For over 400 years, judges heard eyewitness testimony and pronounced “guilty” or “not guilty” without video. To this day, there is only one state that requires driving while intoxicated arrests to be taped. Virginia is not that state!
On the other hand, a number of jurisdictions have used video for quite some time: Virginia Beach, Chesapeake, York, Hampton, Stafford, and Montgomery County among them. Some State troopers use video also. There is a growing trend to train and equip all officers with video. Newport News and Chesapeake purchased body mounted Vie View video for almost all their officers.