The Other Side of the Law
Let’s look at the same arrest we posted about last week, this time from the arresting officer’s perspective. The officer is on duty during the 00:00 – 08:00 shift (Police use military time) and today he is assigned to patrol. It’s 01:10 hours on Sunday morning and the officer is driving a marked police vehicle as he patrols the outskirts of town.
The officer pulls his vehicle over to the side of the road, ready to make a U-turn, when he observes a vehicle driving towards him. He notices that the driver of the vehicle drifts outside of their lane and then makes a sudden correction. The vehicle passes and the officer decides to follow it. Since it’s early Sunday morning, the officer knows that the only people typically driving now are either going to and from work or coming from a bar.
As the officer follows the vehicle, he observes the vehicle drifting out of its lane once more and quickly correcting. The officer observes the vehicle maintain its speed and lane for the next 500 feet or so without any further infractions before deciding to pull it over.
The officer activates his overhead lights. The vehicle doesn’t immediately react and maintains its speed and lane for an additional 200 feet. The officer then decides to activate his sirens, and the vehicle slowly pulls over to the side of the road. Given the failure to maintain their lane and slow reaction, the officer decides to radio into HQ that he stopped a vehicle and is investigating a potential DWI (Driving While Intoxicated). Before speaking with the vehicle’s driver, the officer runs the plates to make sure that the vehicle is not stolen and is properly registered. Once confirmed that the vehicle’s registration is proper, the officer approaches the vehicle.
"License and Registration"
As the officer approaches the driver’s side window, he immediately observes the odor of an alcoholic beverage emanating from the vehicle (“The odor of an alcoholic beverage” is a typical police term for the smell of alcohol. The officer was trained to use that phrase, because pure alcohol has no odor, only alcoholic drinks smell).
As the driver rolls down the window, the officer shines a light in and observes the driver to have watery/bloodshot eyes.
The officer begins by asking, “license and registration.” The driver nods their head and after a few moments of fumbling with some papers, hands their license and registration to the officer. After a brief review, the officer determines that the paperwork is appropriate. The officer then asks, “Where are you coming from?”
The driver responds, “From the bar.”
The officer continues, “How many drinks did you have at the bar?”
The driver pauses for a moment, “Uh, I think I had two or three drinks.” The officer notices that the driver’s speech is somewhat slurred, and they can now smell the odor of an alcoholic beverage on the driver’s breath.
The officer then asks the driver, “Can you please step out of the vehicle?” As the Officer is observing the driver struggle to unfasten their seat belt and exit the vehicle, a second and third police vehicle approach the location to assist (multiple police vehicles responding to a potential DWI stop is common).
We are now at a critical juncture in the DWI stop. In sum, the officer has observed the driver’s failure to maintain their lane, the officer noticed the odor of an alcoholic beverage emanating from the driver’s breath, he heard the driver’s slurred speech, and he observed the driver’s watery/bloodshot eyes. Based upon these observations, the officer now believes that the driver has been operating their vehicle while impaired by alcohol. Based upon that belief, the officer is going to conduct further tests to help determine the level of impairment.
Field Sobriety Tests
Once the driver has exited their vehicle, the officer asks the driver to stand in front of his patrol vehicle to perform the Standardized Field Sobriety Tests (commonly abbreviated to SFSTs) to better determine the driver’s level of impairment by either alcohol and/or some other drug. The tests are always the same: the Horizontal Gaze Nystagmus (which tests the driver’s eyes), the Walk and Turn, and the One Leg Stand.
The officer has the driver perform the SFSTs, and based upon his observations of the driver, determines that the driver is intoxicated by alcohol, i.e. too drunk to drive.
With the tests completed, the officer asks the driver to blow into a portable breath test (PBT). The driver gives a deep breath and blows into the PBT. After several failed attempts, the officer finally gets a reading of 0.14% of alcohol content in the driver’s blood (commonly referred to as a driver’s BAC). The officer asks the driver to perform one last test: turn around and read off their license plate number aloud. While they are reading their license plate, the officer grabs the driver’s hands and places them in handcuffs. The officer explains to the driver that they are being arrested for driving while intoxicated, and that they are going to be brought back to the station for further processing.
While placing the driver in the back of their patrol vehicle, one of the officers who arrived on scene mentions that one of the driver’s tail lamps are out on their vehicle. The officer marks his memo book and notes that the time of arrest was 01:50 hours.
Driving While Intoxicated
Before we proceed further, I would be remiss not to mention that for the purposes of this blog series, while we are taking a comprehensive look at an arrest, there is still so much more legal analysis that we are glossing over to give a general picture of how the legal process works. Throughout the course of this blog series, we will be able to continue to breakdown the legal process and get more and more specific about the legal determinations that must be made when making something as simple as a DWI arrest. But right now, we are focusing on generalities.
With that out of the way, let’s return to our officer who has just placed the driver into the back of his patrol vehicle for Driving While Intoxicated. It is now 01:55 hours when the officer returns to his vehicle and radios to HQ that he has made an arrest for DWI, needs a tow truck for the driver’s vehicle, and is bringing in the driver into HQ for further processing. They arrive at HQ at 02:05 hours. Once at HQ, the officer brings the driver into a holding cell for a twenty-minute observation period. This twenty-minute observation period is required by statute to make sure that the driver does not ingest or vomit anything prior to taking a breathalyzer test at HQ. If either of those things happen, it could affect the results of the breathalyzer. The Officer notes that the observation period began at 02:15 hours.
You may be wondering why the officer is conducting another breath test. In New York, the results of a Portable Breath Test taken on scene are often inadmissible at trial due to concerns of their reliability and accuracy. As such, the driver’s breath needs to be tested again by a more accurate machine at HQ. These breath test machines must be tested frequently for accuracy and must be operated by a certified operator to ensure proper testing and accurate results. One of the requirements to ensure accuracy is that the driver be observed for twenty minutes prior to blowing into the machine. Hence the twenty-minute observation period.
During the twenty-minute observation period, the officer lets the driver make a phone call for someone to pick them up from HQ and allows them to call their attorney if they choose.
While the driver is making their phone calls and waiting out the twenty-minute observation period, the officer begins filling out paperwork. The paperwork includes a supporting deposition, bill of particulars, and a CPL 710.30 notice. The Supporting Deposition and Bill of Particulars detail the time and place of the incident. These documents also identify the driver, their vehicle, and the observations the officer made prior to pulling the driver over, after they pulled the driver over, and in this instance, how the driver performed on the SFSTs. The CPL 710.30 Notice is used to identify any statements the driver made to the officer Now, there might be some of you asking, “Don’t the police have to read you your Miranda rights before you say anything to them?”, which is a fantastic question. However, Miranda warnings require a more nuanced analysis which we will cover in a future blog post as we continue to further analyze the legal process.
Additionally, the officer fills out a police report, which details the driver’s name, address, possible charges, and a narrative which gives an account of what happened that led to the arrest. While all the above paperwork may appear superfluous at first, it is necessary not only for the arrest, but for the courtroom proceedings that are to follow.
The Chemical Test
At 02:40 hours, as the officer is filling out his paperwork, a second officer who is certified to use the Police station’s breathalyzer brings the driver into a small room which has the station’s fingerprint scanner and breathalyzer machine. As the breath test officer starts up the machine and has it run a test sample, he brings out two sheets of paper, one a DWI Refusal Warning, and the second a Miranda warning. The Officer also pulls out a notecard which they read off. The notecard contains the same warnings. After reading the warnings to the driver, the officer asks the driver if they understand and if they wish to submit to a chemical test. The driver nods their head in consent and is told to initial several lines on both forms of paper they were presented with.
After signing, the driver is told to blow into a tube that extends from the breathalyzer machine. This is the “chemical test” the officer was asking about. After blowing into the tube for several seconds, that machine gathers a reading. The printout shows that the driver has a blood alcohol content (BAC) of 0.12%. Since the legal limit in New York is a BAC of 0.08%, the breath test officer notes that the driver will be charged with Driving While Intoxicated.
The Charges
After the test, the arresting officer is told of the results and enters the room. After reviewing his notes and speaking with the desk Sergeant, he has decided to charge the driver with two counts of Driving While Intoxicated (one count is based upon the officer’s observations, the second count is based upon a reading which shows the driver’s BAC above a 0.08%), and two separate traffic infractions of a Lane Violation and a Tail lamp out violation. The arresting officer inputs that data into the computer stationed next to the fingerprint scanner and takes the driver’s fingerprints. The purpose of inputting the data is to connect the charges directly with the driver’s fingerprints in a centralized database. These charges will follow the driver until the case is over, and, many times, for the rest of their life.
The driver is then brought back to their holding cell to wait for their ride to pick them up. The officer confirms that one of the driver’s parents is coming to pick them up and says they should be there shortly. The officer prints out four Uniform Traffic Tickets which have the above charges printed on them. He tells the driver that they have been charged with two counts of driving while intoxicated, one count of an unsafe lane change, and one equipment violation. He tells the driver that they are to appear in Court the next day, at 9:00am, to be arraigned. He also mentions that their failure to appear may result in additional charges. The driver nods their head and accepts the paperwork.
At approximately 03:10 hours, the driver’s parent arrives at the station. Once they show a valid driver’s license to the police, the driver is released. Having finished and filed his paperwork, the officer is back in his vehicle and on patrol by 04:00 hours.
Stay Tuned!
While it was quite lengthy, I hope the above perspectives help paint a picture of how complicated an arrest can be. The next post in this blog series will deal with us entering the courtroom as we follow the perspective of the defendant (formerly “the driver”), the defense attorney, and the prosecutor.
