Does a police officer have to give you a field sobriety test and/or a blood alcohol test before he/she can arrest you for a DUI/DWI?
"The traditional "drunk driving" offense, consists of driving under the influence of alcohol and/or drugs. Evidence to support this crime generally comes from the officer's observations (erratic driving, slurred speech, unsteady gait, etc.), performance on field sobriety tests, and a legal (and generally rebuttable) presumption of intoxication from a blood alcohol test result over the legal limit."
Does a police officer have to "observe" all of these to deem you "under the influence"? Or is one or two of these "observations" enough for an arrest?
Example: You are pulled over because of your "erratic driving". You roll down your car window and the officer smells alcohol (and you are alone in the vehicle).
Is that enough "observation" for an arrest? Or must a sobriety test/BAC test be given? And what if a person refuses the test?
Thanks...
2007-03-22T10:13:27Z
(lol-lol)
Sgt 524... thanks for the reminder that I've been lazy and haven't changed my avatar. But I don't want to break any laws, so I'll change it immediatly.
:) Thanks!
Michael D2007-03-22T04:00:38Z
Favorite Answer
no the officer does not have to give you a FST (field sobriety test) in order to arrest you for DUI/DWI...if the officer noticed your driving was not normal that's enough to pull you over. and when he did stop you smelled alcohol on your person, that could be enough to substantiate the arrest for DUI....keep in mind FST's are not required to be given by law enforcement. They are merely used to backup the officer's reasons for the arrest. And of course you already know the the breathalyzer as well as blood/urine collection is also used to substantiate the officers arrest.
You have to stand out somehow while driving to be pulled over by the police. If the officer smells alcohol in the vehicle, he/she will assume that you have been drinking. When taking the tests to assess if you are under the influence, you have to fail just enough to be arrested for DUI/DWI. They want to get a conviction as much as for the person that robbed a local gas station. Depending on jurisdiction, they will give you a Breathalyzer right there on the scene or take you to the police station (if not on sight) or hospital (if you request a blood test). Refusing a test in most states is automatic DUI/DWI. To be safe, if you are going to drink, don't drive.
DUI laws have different variables underneath them, kind of like subsections. There is one for registering over the legal limit, underage legal limit, commercial driver's license legal limit, less safe driving, etc.
Underneath the less safe driving, you do not have to have a BAC nor do you have to do field sobriety tests on the subject. The officer would have to articulate what variables were present to make the suspect less safe DUI. (speeding, failing to maintain lane, etc. as well as the suspect's characteristics{glassy/glossy/ glazed/red eyes, slurred speech, thick-tongued, unsteady, dazed, etc.})This is also where the video documentation would come into play to help support the officer's observations.
The refusal of submitting to the Intoxilyzer test is an administrative thing. Gerogia law says that if they refuse, then their license is suspended for one year. The suspect can always apply for a Administrative License Suspension hearing. Same goes for the person who did submit to the state chemical test (breath, urine, or blood). If the officer did not do any field sobriety tests on the scene, he/she better have a good reason for not doing so when going before the hearing. The judge can override the license suspension or have remain in effect.
As for your example, no one else in the car and the officer smells alcohol. The odor of an alcoholic beverage must be emitting from their breath, not their car. Anyone can spill something on themselves or in their car and not be drunk. Or the driver may have just dropped off a few drunk friends and the odor is still lingering in the vehicle.
**"Does a police officer have to "observe" all of these to deem you "under the influence"? Or is one or two of these "observations" enough for an arrest?"
If you are speaking of the multiple field sobriety tests, we look for "clues". If there are atleast two clues on a test, then the person is considered under the influence, especially on the HGN (horizontal gaze nystagmus). HGN is an involuntary twitching or bouncing of the eyes. The consumption of alcohol pretty much magnifies the intensity of the twitching. That's the one test you cannot practice at parties. You have no control over your eye movements.
Whether someone refuses field sobriety tests or the Intoxilyzer, if the officer has enough evidence for a DUI conviction, they can arrest you. The BAC is just icing on the cake so to speak.
The only thing an officer needs to arrest you is what is referred to as "Probable Cause", which is defined as the reasonable belief that a crime has been committed. However, charging you is entirely different. He can observe your erratic driving or traffic violation (probably cause for the stop), administer a field sobriety test and based on what he observes he can make a probable cause arrest. Most state laws have what are implied consent laws, which means if you have a drivers license you have implied consent to provide a breath or blood sample when it is requested by a law enforcement officer. Refusal to do so generally means am automatic revocation of your driving privelidges up to a year in most states.