Every person charged with DUI has the right to inspect the police reports and related documentary evidence held by the District Attorney’s office. Collectively, this bundle of information is referred to as “discovery”. A defendant’s discovery materials often include: narratives written by police officers, a criminal history of the defendant, statements written by the defendant or witnesses, results of any chemical anlayis of blood, breath or urine, records of the officer’s certification to operate an intoxilyzer machine, records of the intoxilyzer machine’s certification for accuracy, as well as any photographs that may have been taken.
Most important of all the discovery materials is the officer’s narrative. The officer’s narrative is typically a 2-3 page documentation of the events leading up to the arrest. It often reveals whether the officer engaged in any improper conduct. Only after closely reviewing the officer’s narrative is an attorney able to develop a theory of defense.
Why Did The Officer Stop You?
The first thing an attorney looks for is the reason behind the officer’s contact with the defendant. In order to effect a traffic stop, an officer must have reasonable suspicion that a suspect is committing an offense. An officer cannot stop a car unless he can first articulate facts that amount to reasonable suspicion. For example: having a defective headlight or taillight, speeding, the absence of a license plate on the front or rear of your vehicle, and having a cracked windshield are all legitimate bases for an officer to make a traffic stop. If it is determined that the officer did in fact have a reasonable suspicion to make the traffic stop, the next issue an attorney looks for is whether the officer obtained probable cause to arrest the driver for DUI.
Did The Officer Have Probable Cause To Arrest You?
Probable cause for arrest for DUI typically consists of the odor of an unknown alcoholic beverage on the suspect’s breath, bloodshot and watery eyes, slurred speech, unsteady movements, unbalanced walking, or even an admission by the suspect as to prior drinking. If an officer notices these characteristics of the suspect he will usually make an arrest. However, before making the arrest, the officer usually asks the suspect to perform some “voluntary roadside maneuvers”. You do not have to perform the “voluntary roadside maneuvers”. However, if you consent to the maneuvers, the officer will more easily be able to obtain further facts supporting his probable cause claim. In addition, the officer usually asks the suspect to perform a voluntary preliminary/portable breath test (PBT). You do not have to perform the PBT. Again, if you do perform the test, and your breath registers higher than .08, the officer will most certainly have probable cause to arrest you.
An officer is less likely to prove that he had probable cause to arrest if he obtained little or no evidence. For instance, if the only evidence supporting the officer’s probable cause is bloodshot and watery eyes and the odor of alcohol on the suspects breath, you will likely have a good defense, possibly a dismissal prior to trial. On the other hand, if you also submit to the voluntary roadside maneuvers and the PBT, then the officer will be more likely to prove that he had probable cause to arrest. After obtaining probable cause for arrest, the officer will invoke the Colorado Express Consent provision, requiring you to submit to further testing. If the arrest is good, then the test results that follow the arrest are going to be used against you in court, unless you can find a defect related to the administration of the test. If the arrest is bad (the judge agrees the officer lacked probable cause), you have a defense.
What Tests Did You Perform? Once arrested, a suspect is given the option to provide a sample of blood or breath if the officer suspects he or she has been drinking; or saliva, blood or urine if the officer suspects he or she is on drugs. How the officer obtains such sample determines whether or not such evidence can be used against you. For instance, there are extensive regulations that govern how samples are to be taken. The regulations can be found at: State testing regs .
Additionally, if a sample of your breath is taken, there may be numerous issues governing the reliability of the intoxilyzer. For example, both the officer and the intoxilyzer machine must be recertified periodically. Your attorney should have a copy of the intoxilyzer owner’s manual. Finally, even if the officer did everything “by the book”, you can have a second sample of your test submitted to an independent lab for a second analysis. This often reveals a different level of alcohol or drugs, which may be the difference between guilty and not guilty.
