Fighting Officer’s Observations of DUI Defendants

Fighting Officer’s Observations of DUI Defendants

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Fighting Officer’s Observations of DUI Defendants

Robert L. Miller

How can you go up against a trained officer in your DUI case? In DUI cases, particularly situations where a trial might be to your benefit, many lawyers don’t go after police officers. Especially attorneys that don’t normally practice DUI cases, often don’t even bother to contradict an officer’s specific observations of the driver – for instance, that they had a distinct odor of liquor, eyes that were bloodshot, red, or watery, a speaking style that was slurred, or testimony that you had an unsteady gait. While this type of cross examination at trial, or at a motion, is not going to, by itself, get a DUI case dismissed, it can cumulatively layer defenses to explain away the circumstantial facts that are used to establish intoxication, and cause reasonable doubt as to the officer’s observations.

1. Smell of Alcohol

Pure alcohol has no scent. For the most part it is the flavoring, or the mixers, that are noticed on the breath. At trial, when the officer is addressed during questioning of whether the odor was from beer, or wine or a blended beverage, unmistakably they have no specifics about what type of odor they observed.

2. Red, Watery Eyes.

Unless they know you personally, the officer will need to concede that they don’t know what your eyes typically look like. They will need to concede that they don’t know to what extent you have been alert that day or what kind of fatigue you may have encountered throughout the day. On the off chance that a photograph was taken of you by the officer or at the jail, attempt to investigate it closely, to check whether the eyes look ordinary in the photo. Likewise, at trial, at times your eyes will look tired, or watery, and it is not a waiver of the Fifth Amendment right to remain silent by having the officer watch your eyes at trial and affirm that they are red. This might be dangerous on the off chance that you think the jury may trust that you are tipsy at trial.  Note that most top DUI Lawyers know that there are many reasons, including dehydration, smoking, fatigue, medications, and contamination in the air (or allergies pollen, or dust) that can cause eyes to look watery and red.

3. Slurred Speech.

Once more, the officer will need to concede that they don’t have the foggiest idea about your ordinary speech patterns or speaking styles. Police departments give officers in the field check boxes to fill in for their perceptions and collected the results. On cross examination at trial or motion, it is clear that the officer checked the boxes without thinking, and normally have no autonomous memory other than what was provided for them by the structure of the paperwork. Along these lines, a viable approach to questioning about slurred speech is to ask the officer whether he comprehended what you were stating. At that point the officer ought to be asked whether you slurred each word, or simply a few words. In most cases, , the main slurring was the customer quickly saying some a player in the letter set while recounting letters, which is not an institutionalized field restraint test regardless.


Usually these “objective symptoms of intoxication” are used to justify the more intrusive field sobriety tests.  If you can establish that they were not properly done, then the jury (or a judge, at a motion or court trial), is more likely to believe that the officer may have been mistaken, which can lead a jury to reasonable doubt.

If you have questions about your case, please contact our law firm, anytime, at (877) 568-2977.  We can help.

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