As a DUI Lawyer, I see almost every scenario that ends with a Drunk Driving Arrest. These scenarios include a Driver being rather simply pulled over for weaving in and out of his or her lane, to a person being found passed out behind the wheel of a running car after having crashed into something. I’ve even had cases where people have been Arrested after having parked their car and gone into a home or other building (these kinds of cases often present wonderful opportunities to successfully challenge the case, or evidence that is a part of it, and get the charge “knocked out“).
A situation that has become far more common over the last several years starts with a cell phone call from an anonymous “tipster” alerting the Police to a suspected Drunken Driver. This article will focus on this increasingly more common situation, and will examine the evidentiary and legal requirements that must exist for such a case to proceed through the legal system, and how these things actually play out in the real world. For all the legal complexity the reader might suspect is involved, this can actually be boiled down to a rather simple and straightforward analysis.
It all begins with a tip called in by another driver. Whether that driver is an overly-zealous “do-gooder,” or a decent citizen honestly concerned for the safety of others really doesn’t matter. What matters is that a description of a vehicle (meaning some identifying information such as make, model, color, and/or the plate number) is given, along with enough geographic information for a Police Officer to locate it.
Legally speaking, the Police can’t just pull up to the identified vehicle and pull it over. By law, the Police have to observe the driver either do something that would otherwise justify a Drunk Driving stop, or otherwise violate some traffic Law that, in and of itself, would justify a Traffic Stop. In other words, the Police need a valid reason to pull over the driver of the car that was reported, and can’t just pull it over because Joe Citizen suspects the driver of being drunk.
In real life, this typically isn’t a problem. Consider for a moment: how many suspected Drunk Drivers have you, the reader, ever called in? Most likely, the answer is none. Usually, it takes a pretty obvious case for Joe Citizen to dial 911. Police Officers are trained to spot Drunk Driver’s; citizens are not. By the time a person is weaving or otherwise driving erratically enough for someone to call in a “tip,” they are often rather clearly intoxicated.
In such a case, the Police usually don’t have to wait very long for the reported Driver to give them a reason to activate the overhead lights.
Yet a number concerns spring to mind. How often do the Police receive such a tip, find the suspect vehicle, and get behind it, only to have the Driver not give any indication that his or her driving is impaired? Have the Police become complacent with the notion that most tips are good, and most reported Drunk Drivers are, in fact, drunk? How often does someone who is mad at someone else call in such a tip? Does it seem beyond the scope of possibility that an angry “ex” might make such a call out of spite?
Let’s consider, for a moment, that Officer Bob has been dispatched on lots of Drunken Driver tips, and that every one of them, or close to every one of them, have panned out.
Is it conceivable that Officer Bob may, on some run, just locate the suspect vehicle, and then pull it over, figuring the odds are pretty good that the Driver is drunk?
I’m not attributing any such motive to any Police Officer, but it is my job, as a DUI Lawyer, to investigate every angle of such a case (and each and every case, whether called in by a tipster, or just the result of a garden-variety Traffic Stop). Who wouldn’t want to find a way to have the charge dismissed? Is there Police Car video? If so, then I want to see it.
One thing that the reader can count on, just as much as death or taxes, is that each and every Police Report will detail the Officer’s observations of the Arrested Driver doing something that legitimizes the Traffic Stop. To put it another way, the reader can be sure that the Police Report will NOT give, as the sole reason for pulling the Driver over, that the Officer believed it was the vehicle described in the cell-phone tip. The Police know that they need an independently observed reason for stopping the person who is the subject of a tip, and you can be sure that the Police Report will state such a reason.
So, if there’s dash-cam video, we look at it. Even if the driver turns out to be over the limit, and even well over the limit, if the Police Report details how the driver was unable to keep in his or her lane, having weaved onto the shoulder and having crossed the center line, then the video should back that up.
What happens if it doesn’t?
And, to take things a step further, isn’t it entirely possible that someone who may have turned out to be over the limit (i.e., had a few too many) might not really know for sure if they did or didn’t weave? It isn’t hard to imagine a person NOT having any independent recollection of weaving, but, after having been Arrested, and given a Breathalyzer test at the Police Station that they learn was over the legal limit, doesn’t feel like he or she has any solid reason to challenge of disagree with the Officer’s allegations, beyond just not remembering weaving. After all, someone else called them in as a Drunk Driver, the Police claim they drove like a Drunk Driver, and then they took a Breath Test that they think kind of proves they were Driving Drunk, and now they’re charged with a DUI… “Who’s to say, maybe I was weaving?” the think.
This is where a DUI Lawyer has to put things under the microscope. Let’s go back to the example above for a moment. Say Don the Driver was pulled over after an anonymous cell-phone tip. The Police Officer, in his Report, indicates he located Don based upon the description of the vehicle and its reported direction, and that as he positioned himself behind it, Don weaved onto the shoulder of the road 2 times, and crossed over the center line once. Fast-forwarding a bit, Don was Arrested, taken back to the Station, and given a Breathalyzer test, on which he blew a .16 two times.
Seems, at first glance, like an open and shut case, right? And it is, if no one bothers to look any deeper.
Let’s now assume that Larry the Lawyer gets involved. Being a DUI Lawyer, one of the first things Larry does is take an account of all the evidence, and when he discovers that there is Police in-car video, he gets a copy.
Once Larry reviews the video, he sees that the Police Officer, upon identifying Don’s vehicle, sped up and immediately activated his overhead lights, and that Don promptly pulled over.
Where is the independent observation of Don doing something that justifies his being stopped?
There isn’t any!
More important, this defect in the evidence would have never been discovered had Larry the Lawyer simply accepted the Police Report as accurate, and NOT done a thorough investigation. This is often the critical and unfortunate difference, when hiring a Lawyer, between getting good work, or getting a good price.
Beyond the requirement that the Police independently observe a vehicle identified in a called-in tip actually do something that justifies a Traffic Stop, the whole rest of the case must be legally sound, as well.
In the course of evaluating a Drunk Driving case, I will, as a DUI Lawyer, want to carefully examine all the facts of everything that took place. I will be, of course, interested in the actual Stop, but I want to know all the details about everything that followed, as well. What was said when the Officer approached the car? Were there Field Sobriety Tests administered? Are they on the Police car video? What was the result of the Breath Test given in the back of the Police car (called a PBT, or Preliminary Breath Test)? How long after that test did the Client take the Breath Test at the Station? What were the results (meaning BAC, or Bodily Alcohol Content) of each of those Breathalyzer Tests?
These are just a few of the many critical questions that must be asked and answered as I look over a case. For a DUI Lawyer, these questions are instinctively asked and answered as part of the evaluation of a case.
And this does raise another issue. A Lawyer who doesn’t really specialize in DUI cases may not be as aware of these things. Lots of Lawyer claim to “do” DUI cases. “Doing” them is not the same thing as doing them well. Certainly, because some Lawyer’s Practice includes things like Divorce cases and Auto Accidents and Dog bites and whatnot, he or she won’t have that same “instinct” in evaluating a DUI case. I’ve NEVER done a Divorce, or an Auto Accident case, nor have I ever written a Will, and, to be honest, I’m the last guy I would hire to do such a thing.
And for what it’s worth, those “Low Bidder” or “Cut Rate” Lawyers who claim to “do” DUI cases at a discounted price can’t really afford to put the same time and effort into a case as a regular DUI Lawyer will.
The point is that every DUI case needs to be examined carefully. DUI charges that are the result of an anonymous cell phone tip bring a few additional elements to the party, and those, too, must be critically scrutinized with all due care. Just because someone says something doesn’t make it true…..