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Probable Cause to Arrest for DWI

In addition to having reasonable and articulable suspicion to make a stop of an impaired driver’s vehicle, the law enforcement officer must also establish probable cause to arrest the driver for Driving While Impaired. Probable cause is a tougher burden to meet than reasonable suspicion, and for that reason, police officers have a variety of methods and tests used to establish probable cause for DWI.

The North Carolina case of State v. Adkerson, 90 N.C. App. 333, 368 S.E.2d 434 (1988) defines probable cause as “reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.”

Officer’s Observations

Usually, law enforcement will establish probable cause for DWI first by observing the defendant’s driving or observing the driver at the scene of the stop. Weaving, erratic or unusual driving are all factors that LEO’s have been trained to observe. Whether or not the driver fumbles getting his license and registration together and how the driver exits the vehicle will all be closely observed by the officer. The driver’s general appearance, including red, glossy eyes, or an odor of alcohol are just some of the more common factors officer’s cite for probable cause to arrest for DWI.

Field Sobriety Tests

The officer will usually ask the driver to perform standardized field sobriety tests, most commonly the Walk and Turn test, the One Leg Stand test, and the HGN test. Clues are marked for each element of the test that the driver does not perform well and will be included in the officer’s report. Swaying while walking or standing, inability to follow instructions, or using one’s arms to balance are just some of the clues an officer will observe.

The HGN, or Horizontal Gaze Nystagmus test, is used to measure impairment by observing “jerkiness” in the eyeball of the subject when the subject is told to follow the officer’s pen or light back and forth. A sober driver’s eyes will follow the pen smoothly while an impaired driver’s eyes will jump quite a bit. However, the HGN is very suspect in when conditions are not ideal – such as when blue lights are flashing in the background or when the officer has limited experience administering the test.

Keep in mind that you always have the option to politely refuse to take these tests and that usually is the best course of action. Even if you had only had 1 or 2 drinks, these tests are very difficult to perform, especially if you are nervous or are not in the best physical shape. These results may be used against you in court to prove impairment, even if you register below a .08 on the Intox EC/IR breathalyzer.

Portable Breathalyzer (PBT) or Alco-sensor Device

This screening test may be used by law enforcement officer to establish probable cause for DWI only if the officer:

1.) has reasonable grounds to believe the driver has consumed alcohol and the driver also:

a.) committed a moving violation,

b.) was involved in an accident or collision,  OR

2.) has reasonable articulable suspicion that the driver has committed an Implied-Consent Offense and has been lawfully stopped at a drivers license checkpoint or lawfully stopped and encountered by an officer.

There are several requirements for the “Positive”, “Negative”, or “Refusal” reading from the PBT to be admitted into evidence, including a 5 minute waiting period between a blow of .08 or more, the officer checking to ensure no food or drink is in the subject’s mouth, and that the machine is properly maintained and calibrated.

Raleigh DWI Attorney Matthew Golden has the knowledge to fight the State’s assertion that probable cause was established for DWI. Give Matthew a call today to discuss the possible issues in your case that may lead to a suppression of evidence due to a lack of probable cause.