In my role as a Michigan DUI lawyer who has been practicing for nearly 27 years (as of this writing), I have literally handled thousands of drunk driving cases. If there’s one thing you can bet on, it’s that after the traffic stop itself, if you’re asked out of the car, you ARE going to jail. This short article will be a bit of a departure from my usual informational, legal examination of some aspect of a DUI case and focus instead on the common, real world experiences of people dealing with a drinking and driving case. For just about anyone pulled over and suspected drunk driving, being asked to get out of the car means having to perform some field sobriety tests (FST’s), and that, in turn, amounts to what you could call the “ballet of the bust.” You may stand and balance and walk and count in an effort to prove to the police officer that you’re not drunk, but what you’re really doing, in a sense, is dancing and talking your way into the backseat of the police car.
Here’s the kicker: You’ll never meet anyone who was suspected of driving drunk, asked out of his or her car to perform FST’s, and then let go. I’m sure there’s someone out there who’s had that happen, but I’ve never met anyone who has, despite having had tons of clients who claimed they did just fine on those tests. Some of these clients report that they were asked to do test after test after test until they’d eventually screw something up, while others maintain that they were given a roadside breath test (called a PBT for “preliminary breath test”) even though they recall having performed rather well on the FST’s. Certainly not every client is wrong about that, but plenty do, to put it nicely, “remember” things differently when drinking is involved. Look, when you’re legally drunk (or twice or more the legal limit of .08), you don’t process things that well. If you did really well on the FST’s and you remember everything clearly despite being legally drunk, then you’re probably a professional drinker, and that’s even worse! One of the more interesting things I see, and I see it rather often, is the client who remembers handling him or herself pretty well in front of the officer, and who then cringes while watching the patrol car video and seeing how clearly drunk he or she was.
As part of my first interview with a new DUI client, I’ll ask him or her about his or her initial contact with the police. I have a number of Matchbox police cars and civilian cars (no, those are NOT for kids) on my desk that we use for the client to show how things went down at the scene of the arrest. While I ask the client to line up the police car (or cars) in relation to his or hers, I’ll also ask about what the officer did as he or she approached the vehicle. Soon enough, we’ll get to that part where the client was asked to step out of the vehicle. Here, I need to take my time and go over field sobriety tests, and the order in which they were given, along with all the other details (including if you had been asked to do a heel-to-toe walk barefoot, on a gravelly, slippery or uneven spot). Most of the time, the client will recall having done “okay,” on some of the tests, while perhaps admitting to not doing quite so well on some of the other tests. No matter how it happens, the story always goes from being asked out of the car to being arrested for a drinking and driving offense.