What happens during a typical DUI arrest?

Posted by Joshua Tomsheck | Aug 01, 2018 | 0 Comments

In order to be arrested for driving under the influence, often referred to as a DUI, the arresting police officer must first have reasonable suspicion that the driver is driving while impaired, or driving “under the influence” that the driver is under the influence of alcohol, marijuana, a prescription drug, an illegal drug, or any combination of the above. Reasonable suspicion is all that is required for a police officer to conduct a traffic stop on an individual driver. “Reasonable suspicion” is seen as more than a guess or a hunch, but less than “probable cause.” 

Probable cause is what is required to arrest an individual for driving under the influence, but the stop itself can legally occur if there is a reasonable suspicion. Probable cause is defined as the logical belief, supported by facts and circumstances, that a crime has been committed… in other words that it is more likely than not that a crime was committed and the person being arrested is the one who did it. After being initially pulled over, the police officer will typically ask for the driver's license, registration, and proof of insurance. If false information is provided to the police officer, the police officer may arrest the individual for providing false information or obstructing a public officer, in addition to driving under the influence. 

In most cases where law enforcement believes that the driver of a motor vehicle may be under the influence, the police officer may then ask the driver to perform a series of “field sobriety tests.”

Typically, there are three field sobriety tests that police officers in Las Vegas, Nevada use to determine whether or not a person is impaired. These three field sobriety tests have been recognized by the National Highway Traffic Safety Administration of being the best indicators of impairment. The first test is usually what is referred to as “horizontal gaze nystagmus,” in which the officer looks for certain involuntary movements of the eye believed to be caused by the person consuming alcohol. The police officer looks for this by instructing the driver to follow a stationary object such as a finger or a pen while it is moved side to side. If the police officer observes these movements, he or she may determine that there are clues present believed to be indicative that the driver is driving under the influence. The second test is commonly referred to as the “one legged stand.” During this test, the police officer will instruct the driver to count aloud, by “one one-thousand, two one-thousand, three one-thousand” for a full thirty seconds, while balancing on one leg. If the driver loses his or her balancing, puts a foot down before the thirty seconds is over, hops to maintain balance, or uses his or her arms to maintain balance, the police officer may indicate these are “clues” which indicate impairment or that the driver is under the influence. The next field sobriety test is called the “walk-and-turn.” The driver will be instructed by the officer or trooper to take nine steps in a heel-to-toe fashion, on a straight line, after which he will pivot and return in the same heel-to-toe fashion. This line may be real, such as a road marking stripe, or imaginary, such as a direct line between points. The police officer may suspect that the driver is under the influence if he observes the driver not walk heel-to-toe, use arms to maintain balance, watches the driver lose balance, or if the individual stops mid-walk or does not actually take nine steps as instructed. Each of these items, and others, can be “clues” of impairment. 

In most cases, if a police officer determines that the driver is impaired based on “failed” field sobriety tests, he or she will then ask the driver to submit to a breath test or a blood test. In some instances, an individual will believe that they submitted to both a blood test and a breath test. This is likely a common misconception. In many cases, a police officer will ask for a “preliminary breath test,” meaning the driver will blow into a handheld device at the scene of a stop. Many people incorrectly refer to this device as a “breathalyzer.” The results of this test are inadmissible in court, as it is inherently unreliable, but rather its purpose is for the development of probable cause to arrest an individual for driving under the influence. In Nevada, a preliminary breath test is not required. 

Typically based on the investigation to that point individual may be asked to submit to a blood test or a breath test in order to determine blood alcohol content or breath alcohol content. This would be the evidentiary blood or breath test which would be admissible in Court to show a person's blood or breath alcohol content. The results of the evidentiary breath test and the blood test can be, and will be, used against a defendant in court if it shows a blood alcohol content or breath alcohol content higher than the 0.08 legal limit. This test must be obtained by consent (meaning the person giving the sample agrees to give the sample) or by a search warrant. If an individual refuses, as is his or her right, the officer must go to a judge and ask for a warrant to draw blood. This however, can lead to an automatic driver's license revocation for a one year period under newly enacted Nevada law. In the event of a breath sample given my consent, law enforcement will know immediately what the person's breath alcohol content is. While a person can technically be arrested for DUI with a blood or breath test of any level, Nevada law presumes a person to be too impaired to safely drive if there blood or breath alcohol concentration is .08% or higher. 

If you, or a loved one, has a DUI case, it is important to remember that hiring an experienced Las Vegas DUI attorney fighting for you will almost always help you dramatically. If you hire Attorney Josh Tomsheck in the early stages of your case, it may be possible to get your charges reduced or dismissed so that you never have to attend court or have any formal charges filed against you. Mr. Tomsheck has handled hundreds, if not thousands, of DUI cases. Past clients who have retained him have had their DUI charges reduced to lesser offenses and in many cases, complete dismissals of all charges. Contact him here for a free consultation.

About the Author

Joshua Tomsheck

DUI Attorney Josh Tomsheck is a Partner in the firm of Hofland & Tomsheck, and has committed to the representation of those charged with Crimes, focusing his practice on Drunk Driving/DUI/DWI defense.


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