On New Years Eve we posted Part 1 of this series. It was a deep dive explanation into what DUI/DWI1 is, how many beers it takes to be legally “impaired”, the statistics of how many people are killed every year by selfish drunks, and a peek into the window of the “cat and mouse” game that police play with drunk drivers on our city streets - while the rest of us are sleeping.
The biggest takeaway I hoped to share with readers is that drunk driving is a crime that everyone commits. Everyone. That is not an exaggeration. From the super wealthy in Range Rovers to the homeless guy2 who “borrowed” a friend’s car. That observation is one of the most fascinating and interesting sociological aspects of this violent crime that continues to kill over ten thousand Americans every year.
Unrelated to the prior article on drunk drivers I posted a few videos of recent high-profile drunk driving cases on our Tik Tok and YouTube channels3 and was bombarded with good questions, enlightening comments, but mostly bad information, myths, and #fakenews about about the DUI paradigm.
That gave me an opportunity to dispel some of these myths and provide objective factual information.
The phases of a DUI investigation
A DUI investigation has three phases. Trained police officers will carefully evaluate a possible DUI offender and throughly consider all evidence observed and base an arrest decision on the totality of the circumstances under the lens of “probable cause”.
Vehicle in motion.
This is the phase where police officers observe the actual driving.
Speeding, weaving out of lane, no headlights, crash, etc…
Officers ask the question, “Should I stop the vehicle?”
Personal contact.
This is the phase where police officers make contact with a driver and observe (or not observe) signs of impairment.
Odor of an alcoholic beverage, slurred speech, bloodshot/watery eyes, etc…
Officers ask the question, “Should I have the driver exit the vehicle?”
Pre-arrest screening.
This is the phase where police officers administer Standardized Field Sobriety Tests (SFSTs).
Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS).
Officers ask the question, “Should I arrest the driver?”
Therefore, when police officers make an arrest for driving while intoxicated they are considering the driving, the signs of intoxication, and the performance on the SFST’s. In short, they consider the totality of the circumstances.
“But, I passed!?!”
There are the three SFSTs that police administer. These tests have been proven by scientific study to be reliable in predicting (to a certain percentage) whether or not the blood alcohol content of a driver is at or above the legal limit.
Officers are looking for 6 clues on the HGN test, 8 clues on the WAT test, and 4 clues on the OLS test.
If an officer observes at least 4 clues on the HGN test, 2 clues on the WAT test, and 2 clues on the OLS test there is a 91% chance that the driver is at or above the legal limit (.08) (validation studies).
If a driver does not know what clues that police officers are trained to look for - how could they possibly know if they “passed” or not?
Also, these tests are not “pass/fail”. Therefore, the aggressive assertion that a driver “passed” only further proves that they have no knowledge of the metric that police officers are utilizing to evaluate performance.
Backwards Alphabet
There is a myth that people are requested to “recite the alphabet backwards” as part of a DUI investigation.
No one is asked to recite the alphabet backwards. No one. Ever. Not even in the 1980’s before cops had body cams.
If an individual cannot safely perform the 3 SFSTs due to injury, age, or weight - police officers are trained to administer “alternate” tests. These tests are not backed by scientific study and simply gauge an individual’s ability to follow basic instructions. The inability to follow these simple instructions will be used by the police officer as evidence of impairment.
Examples are:
“Recite the alphabet from H to W. Starting with H and ending with W.”
“Count down from 47 to 32. Starting with 47 and ending at 32.”
When the result is, “H, L, P, Z, K, X, A” - it makes for a great body cam video in court. Judges and jurors have a difficult time maintaining composure while viewing the unintentional comedy. And that is when a cop knows they won the case. Because, like obscenity, a drunk is hard to define, but we all know one when we see it.
Penny in your mouth
There is also a myth that if a person puts a penny in their mouth - that the breath test machine4 will not be able to detect the alcohol in one's system. The hypothesis is that the copper from the penny does something to screw with the breath test results. This is sadly not true and hard to believe that this is even a thing that people believe. However, it is not uncommon to have drunk drivers spitting out pennies on the side of the road in shame.
There is almost nothing more pathetic than being drunk and handcuffed on the side of the road - betting on a mouthful of pennies to save your ass.
An old-school officer I knew told a story about glueing a penny to the floorboard of a police car. Think about what that penny went through night after night.
What should a sober driver do?
**Disclaimer: This is not legal advice! This is my opinion. This is what I would do I were pulled over and asked to do SFSTs - as a sober driver - the only way I drive. The only way anyone should drive.**
A sober driver should cooperate with the SFST’s and a breath test. It may be annoying, frustrating, and a waste of time. But a knowledgeable officer can tell drunk from sober within a few seconds of the first test (HGN) and you will likely be on your way down the road. Though it cannot be used as official evidence - most police officers are going to assume (rightly or wrongly) that a sober person would just cooperate and that only drunk drivers have something to hide. Many police officers assign a lot of weight to the principle of “consciousness of guilt”.
The thing that I love about DUI enforcement is that at some point - a person has the ability to prove their innocence in an unequivocal manner - by taking a breath test. That is like a completely innocent person who is arrested for domestic violence, shoplifting, or homicide being able to immediately prove their innocence, in real time, to the arresting officer.
In a domestic case (since most police officers do not have psychic powers) they have to carefully parse out the storylines from two complete strangers (who have their own agendas and motivations) and then make a determination if a crime was committed or not. Often this is nothing more than an educated guess as to who the “primary aggressor” was. This is an underrated difficult task and oftentimes an officer never really knows if they made the right decision. This is frustrating for officers who truly want to do a good job.
In a DUI case, innocence can be proven by the driver and therefore, the chances that a completely sober driver will be arrested and charged for the offense is virtually zero. I always loved that aspect - as arresting innocent people is not the goal of any decent police officer.
Final Thoughts
Police officers have no incentive to arrest a sober driver. If someone drives in a reckless manner and then performs poorly on the SFSTs - there is still the failsafe of the breath test. No matter how bad an officer wants to arrest a person for DUI - they literally can’t if the breath test results are negligible. I have always appreciated the finality and fairness in that.
An officer never has to wonder or worry if they arrested an innocent person in a DUI case. This is something that honest cops should care about.
Driving Under the Influence/Driving While Intoxicated
Or a guy “experiencing homelessness” to use the parlance of our times.
One with a drunk driving NFL player who resisted arrest and another with a drunk driver who did a backflip during the SFSTs - check them out!
The Intoxilyzer 8000 is used by many police departments.