A Dui Primer
| Publication year | 1987 |
| Pages | 2179 |
1987, December, Pg. 2179. A DUI Primer
This article discusses the issues which frequently plague the prosecution of DUIs, and suggests some approaches to these problems. Included in the discussion are the stages of a stop, the arrest, and blood and breath testing of a DUI defendant.
Both statute and common law authorize a traffic stop (and, for that matter, any brief detention) for reasons which amount to less than probable cause but which satisfy the standard of "reasonable suspicion." This standard is measured by the objective facts known to the officer, without a subsequent finding of arrest.(fn1) Any indication of intoxication, observed by a trained officer, most likely will support a stop.
As a practical matter, the prosecutor should identify at least three distinct factors, including the officer's qualifications, to justify the decision to make the stop. For example, in an instance where the officer makes a traffic stop for a speeding violation, the trial judge should also be informed that the time of day (such as 2:15 A.M. after a Friday night), and the officer's experience, also support suspicions of a DUI. Moreover, erratic driving of almost any sort should support a traffic detention resulting in a DUI arrest.(fn2)
The officer may inquire of the driver's name, address, identification, and a brief explanation of his or her actions.(fn3) In order for the contact to be appropri ate, the evidence must show the classic standards of a Stone(fn4) stop: the detention must be shown to be supported by reasonable suspicion, and to have been for a reasonable purpose and for a limited duration.(fn5) As long as the stop meets these limitations, justification should exist for the collection of further evidence.
The case of People v. Carlson(fn6) indicates that an officer's order to exit a vehicle and walk to the rear does not constitute a search or seizure requiring the imposition of constitutionally protected rights. This is based on the rationale of officer safety.(fn7) Further observations of demeanor, balance and cooperative attitude, combined with factors supporting a conclusion of erratic driving, should establish "an articulate and specific basis in fact to suspect the defendant of driving under the influence of intoxicating liquor."(fn8)
The careful prosecutor, however, should take care to avoid encouraging an order to exit as a mere pretext for a full search. The Colorado Supreme Court has found that roadside maneuvers do rise to the level of a constitutionally protected search and must be supported by either probable cause or consent.(fn9)
Where the driver has given consent to perform the maneuvers, the prosecutor must prove voluntariness by clear and convincing evidence.(fn10) Factors the courts will look for include age, education, the intelligence of the driver, duration, location and, generally, all other attendant circumstances of the consent.
It is also important for the evidence to show a non-threatening situation. The trial court should hear how the officer was dressed; whether the officer was armed and, if so, how the presence of weapons was involved; the officer's tone of voice and demeanor; and the physical conditions at the place where the roadside contact was initiated. If the defendant chooses not to testify at the motions hearing, the officer's specific recollection of the stop will be the only evidence on which the trial court will rely. The prosecutor should emphasize both the driver's behavior as well as the officer's attitude and demeanor at the traffic stop. As long as there is no evidence of threat, promise, coercion or force, the mere fact that the driver now regrets the choice to give consent will not render the performance of the roadside maneuvers involuntary.
Since traffic stops are generally noncustodial, Miranda warnings do not apply.(fn11) Upon completion of the roadside maneuvers, the officer obviously will have to either arrest or release the driver. Up to the...
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