DWI and "Technicalities"

I was arrested for the first time ever last weekend for DWI. The police officer stated I didn't come to a complete stop at a stop sign and that's why he pulled me over. I thought I did OK on the field sobriety tests but was arrested. Scared and nervous, but I did about as well as I could have on the tests.

At the police station I blew a 0.09. Just a fraction over the limit. I personally knew I was OK to drive the two miles home, but the law is the law.

I cooperated with the officer and did what he asked.

I have two questions: First, the officer did not put on my seat belt after I was placed in the cruiser; second, I was never read my rights. Could these two issues help me in my case?

By the way, I have never been in trouble in my life - ever, and I have clean driving record. I am also 44 yrs old. Any thoughts?

I have several thoughts; let me address some of the un-asked questions first.

I recently posted about the “Rising BAC” defense, and it’s possible it could apply in your case. As you acknowledge, barely over the limit is still over the limit…but the State must prove either (a) loss of the normal use of your mental and/or physical faculties, i.e. impairment or (b) having a breath or blood alcohol concentration of .08 or higher at the time of driving.

Depending on how long it was from the time of the stop until the time of the breath test, it may be arguable that you were under .08 at the time of driving (or, as the law phrases it: “while operating a motor vehicle in a public place”).

Polite and cooperative is always a good fact as well. Most police officers will acknowledge that “some people you have arrested for DWI become quite belligerent and rude”. I like to phrase it as “some people” on cross examination, because frankly, that’s probably the best you can get out of the officer, and anyway, a jury will know that not all who are “drunk” will be impolite.

As I said in the previous post, doing reasonable well on the field sobriety tests is a prerequisite to getting a dismissal, reduction of charges, or not guilty on an “over .08 breath test DWI” case. Sounds like you may have done well on them – obviously, will have to wait to see the video of the tests to know for sure.

The video will also show whether the officer asked questions about when your first and last drink were consumed, when your last meal was, and other questions potentially necessary for the State to prove “over .08 at time of driving”.

As for your actual questions, I don’t think either of those will provide you with a defense. Not seat-belting you in properly sounds like a bad idea; perhaps it’s an indication that he might be a rookie, maybe it shows that he’s sloppy, and that sloppiness might carry over into his grading of your performance on the FSTs. But that’s (1) a bit of stretch, and (2) definitely not the kind of technicality that would make a judge grant a Motion to Suppress the Evidence, or throw your case out.

I’ll post later about DWI officers not reading Miranda warnings to those arrested for DWI (it deserves a post of its own). But suffice it to say here that most officers don’t read DWI defendant’s their rights, nor do they need to.

Statements made by a defendant in response to questioning from an officer after they have been placed under arrest for any offense, without the Miranda warnings are potentially suppressible. But, in most DWI cases, all the evidence gathered against you is taken in the “investigation phase” (most of what you told the officer was before he even administered the tests to you – never mind cuffed you and stuck you in the back of his car).

Thus, the Miranda warnings do not usually apply in DWI cases.

As for never being in trouble before? The prosecutors don’t so much give you credit for lack of a prior record, as they give you grief (and enhanced penalties, fines, jail time, etc.) for it being the second time around.