Probable Cause and DUI - The Two Shall Always Meet

One of the first concerns I have in any Driving Under The Influence (DUI) case is with the arresting officer’s reasons for the arrest of a client. Probable cause is the term used to describe those reasons and it must be established in court. If the arresting officer cannot tell the hearing judge why they stopped a client’s car and arrested them, then the stop is illegal. If the stop is illegal, all evidence obtained as result will be thrown out of court. Often, this means my client wins his case.

Examples of acceptable probable cause are many. If a client’s been in an accident and stinks of booze when an officer approaches him at the scene, probable cause is obvious. Speeding 90 in a 65 mph zone certainly gives an officer probable cause for a stop. Again, the odor of alcohol will likely lead to testing and an arrest. Add blood shot eyes and slurred speech, and probable cause is likely to be established.

Remember, the establishment of probable cause IS NOT the same as a trial. The Court will not be judging a client’s guilt in a probable cause hearing. Rather, they will be determining whether the arresting officer legally curbed a defendant, which led to their arrest. The prosecutor does not need to prove that a defendant is guilty beyond a reasonable doubt, but rather only show that probable cause exists for an arrest by clear and convincing evidence, a much lower standard.

There are many defenses to DUI. A good number of them relate to probable cause. For example, if an officer sees a car leave from a bar at midnight, it might be understandable for that officer to suspect that the driver has been drinking. On its own, however, this suspicion would not be enough cause to stop the vehicle. The officer may follow the car to watch for traffic violations and public safety, but may also see no evidence of poor or dangerous driving. In this latter circumstance, the officer is not likely to have any probable cause to pull the driver over. A busted tail light would give an officer cause to stop a vehicle, but if the driver appears sober and follows instructions well, there would not likely be cause for an arrest.

So, let’s say that an officer does have probable cause for a stop, but is unsure as to whether a driver is under the influence. Roadside tests, including breath tests, are available to law enforcement to make a further determination as to intoxication. An officer may ask for a one leg stand test, an alphabet test, a Horizontal Gaze Nystagmus test, finger test and so on. While an officer may ask for a roadside breath test and indicate that one has to perform it, there are no criminal penalties if one refuses. 

If the driver passes all of the above tests, an officer may still make an arrest for various reasons, but her case against the driver will be significantly weaker without positive results and observations. In other words, it will be much harder for probable cause to be established in court. Of course, if some or all these tests are failed, probable cause is solid.

Medical issues can affect performance on the tests. Everything from vision problems to physical disabilities to diabetes can significantly impact roadside testing and even a breath test. If you are pulled over and asked to perform these tests, be sure to advise the officer of any health problems or conditions you have, as the officer and the court need to consider these. They may also explain poor or extraordinary driving, thereby negating probable cause for a stop.

While an attorney must have valid grounds to file a Motion to Quash Arrest and Suppress Evidence for lack of probable cause, often there are gray areas and missing information in police reports that may prompt an attorney to file such a motion. Not wanting to risk filling in the blanks at trial, an attorney may choose to request a hearing to determine probable cause and get answers to their questions. If the answers are satisfactory, the case proceeds either to trial or plea at a later date. If the officer cannot answer these probable cause questions adequately, however, the motion can be granted suppressing evidence. An officer must be able to reasonably articulate her probable cause in court.

Hopefully, you will never need this information. If you do, do not hesitate to ask your attorney about probable cause issues in your case. It’s not physics and understanding what the issues are is half the battle.

Charles Huff
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Family Law and Criminal Law Attorney