1. When can a police officer stop a motorist?
In Louisiana, a police officer can temporarily detain and interrogate persons reasonably suspected of criminal activity. In dealing with a motorist, a police officer can stop a motorist who he reasonably believes is involved in some sort of illegal activity or who he reasonably believes is driving while intoxicated. Thus, if a police officer observes a motorist who is driving erratically or recklessly, the officer can stop the motorist to conduct an investigatory stop. Any type of traffic violation by the motorist can support a traffic stop by the police officer. ((1. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Waters, 780 So.2d 1053 (La.3/12/01); State v. Triplet, 42,357 (La.App.2d Cir.8/15/07), 962 So.2d 506, writ denied, 2007–2030 (La.2/15/08), 976 So.2d 175;State v. Evans, 130 So.3d 40 (La. App. 2 Cir. 12/4/13).)) Additionally, a driver’s failure to wear a seat belt constitutes reasonable cause for an investigatory traffic stop. That is, a police officer can stop a motorist if he observes the motorist not wearing a seat belt. ((2. State v. Hunt, 25 So.3d 746 (La.12/1/09); State v. Gomez, 947 So.2d 81 (La.App. 5th Cir. 11/28/06). ))
After the police officer has stopped the motorist and encounters the motorist, if the officer detects the odor of alcohol on the motorist’s breath or if the motorist’s eyes appear to be bloodshot or glassy, or if the officer observes an open container of alcohol in the vehicle, the officer may have independent, reasonable suspicion that the motorist is intoxicated. At that point, the officer is authorized to conduct field sobriety tests, breathalyzer tests, and other intoxication tests upon the defendant. ((3. State v. Evans, 130 So.3d 40 (La. App. 2 Cir. 12/4/13). )) If the defendant fails the field sobriety tests, the officer has probable cause to believe that the motorist was driving while intoxicated and he can arrest the motorist.
2. Will the motorist be taken to jail?
Once a motorist is placed under arrest, he will likely be transported to the police station. On arrival, the motorist will then likely be advised of his Miranda rights and his rights regarding the Intoxilyzer 5000 breathalyzer test, one of the tests approved by the Louisiana Department of Public Safety and Corrections, the Office of State Police for analysis of breath specimens for the determination of the blood alcoholic content. After the breathalyzer test, the motorist will be booked and taken to jail.
The result of the blood test will be used in evidence against the defendant at his trial. At the motorist’s trial for driving while intoxicated, when the prosecution proves that a motorist’s blood alcohol content level was 0.08% or more, the State has met its burden of proving that the operator of a motor vehicle was intoxicated. ((4. State v. Farley, 136 So.3d 933 (La. App. 2 Cir. 2/26/14). ))
3. What are field sobriety tests?
Field sobriety tests are tests conducted by the officer at the scene after the motorist is stopped by the police officer for a traffic violation or for suspicion of driving while intoxication. These tests provide evidence to the officer as to whether the motorist is intoxicated. There are several field sobriety tests used by police officers in Louisiana. These tests range from the horizontal gaze nystagmus test, the one legged stand test, the walk and turn test, the finger to nose test ((5. State v. Garris, 603 So.2d 277 (La. App. 2 Cir. 9/4/1992).)) and the “abc” test. ((6. State v. Armstrong, 561 So.2d 883 (La. App. 2 Cir. 1990).))
The horizontal gaze nystagmus test is conducted when the officer moves a pen before the motorist’s face and instructs the motorist to follow the pen’s movement with his eyes. Nystagmus is an involuntary jerking of the eyeball. This jerking is aggravated by central nervous system depressants, such as alcohol or barbiturates. ((7. State v. Garris, 603 So.2d 277 (La. App. 2 Cir. 9/4/1992); State v. Armstrong, 561 So.2d 883, 885 (La.App.2d Cir.1990), citing Ludington, Horizontal Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 60 A.L.R. 4th 1129 (1988).)) Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they move from center focus to the point of maximum deviation at the side. This test allows the officer to observe the eyes of the motorist to see whether nystagmus was present at maximum deviation, whether he can smoothly pursue while tracking the pen with his eyes and to see at what point the onset of nystagmus occurred. This test allows the officer to observe whether the pursuit of both of the motorist’s eyes is jerky. These clues can indicate to the officer that the motorist is impaired. ((8. State v. Garris, 603 So.2d 277 (La. App. 2 Cir. 9/4/1992); State v. Armstrong, 561 So.2d 883, 885 (La.App. 2d Cir.1990), citing State v. Superior Court, County of Cochise, 149 Ariz. 269, 718 P.2d 171 (1986).))
The second field sobriety test is the “one legged stand” test where the motorist is asked to raise one foot, with the toe pointed into the air, and count to thirty. With this test, if a motorist lowers his foot twice for balance, he is unstable (intoxicated) and the test should be stopped for his safety. ((9. State v. Garris, 603 So.2d 277 (La. App. 2 Cir. 9/4/1992).))
The third field sobriety test is the “walk and turn” test where the motorist is instructed by the officer to place the heel of his right foot to the toe of his left foot with his arms at his side, and walk in a straight line, toe to heel, for nine steps, counting the steps aloud, and then turn in a pivoting maneuver and return the same way. The test involves the motorist remaining in the heel to toe position prior to walking until the officer has concluded his explanation of the test and has given permission for the subject to begin. ((10. State v. Garris, 603 So.2d 277 (La. App. 2 Cir. 9/4/1992).))
The fourth field sobriety test is the “finger to nose” test. With this test, the motorist is instructed to hold his arms out to his sides and separately touch the tip of his nose with his index finger. If the motorist cannot touch his finger to his nose, the officer may assume that the motorist is intoxicated.
These tests and others are used by the officer to determine if the motorist is intoxicated. After the defendant is arrested, the officer should advise the defendant of his rights under Miranda v. Arizona ((11. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).)) prior to administering the field sobriety tests.
The fifth field sobriety test is the “abc” test where the motorist is asked to recite the English alphabet or the “abcs.” If the motorist has difficulty with reciting the alphabet, this is evidence of intoxication. ((12. State v. Armstrong, 561 So.2d 883 (La. App. 2 Cir. 1990).))
4. When can the police stop a motorist at a DWI checkpoint?
Under Louisiana law, a DWI checkpoint where police officers stop vehicles to look for drunk or intoxicated drivers constitutes a seizure. ((13. State v. Jackson, 764 So.2d 64 (La. 7/6/00).)) Checkpoints are legal in Louisiana if certain guidelines are met. The guidelines that have been adopted by the Louisiana Supreme Court for DWI checkpoints are as follows:
(1) the location, time and duration of a checkpoint, and other regulations for operation of the checkpoint, preferably in written form, established by supervisory or other administrative personnel rather than the field officers implementing the checkpoint;
(2) advance warning to the approaching motorist with signs, flares and other indications to warn of the impending stop in a safe manner and to provide notice of its official nature as a police checkpoint;
(3) detention of the motorist for a minimal length of time; and
(4) use of a systematic nonrandom criteria for stopping motorists. ((14. State v. Jackson, 764 So.2d 64 (La. 7/6/00).))
5. What if the motorist refuses to take the breathalyzer test?
Louisiana has a series of civil statutes called the “Louisiana Implied Consent Laws. ((See La. R.S. 32:661 et seq.)) The penalties under the implied consent laws are in addition to the criminal penalties for driving while intoxicated under La. R.S. 14:98. These statues were enacted by the Louisiana Legislature to combat dangers posed by drunk driving in Louisiana. The implied consent statutes attempt to reduce the dangers posed by drunk driving by deeming all licensed drivers on state highways to have impliedly consented to any number of tests to determine intoxication. These statutes allow a motorist’s driver’s license to be suspended if the motorist’s blood alcohol content at that time of a chemical test was 0.08 percent or more by weight. In other words, if a breathalyzer test shows that the motorist blood alcohol concentration was 0.08 or higher, there is a presumption that the motorist was driving while intoxicated and will result in the motorist’s license being seized pursuant to La. R.S. 32:667 and the motorist being given a temporary license.
6. What is an administrative hearing and what does it have to with a driver’s license?
After a motorist’s license has been suspended under the Louisiana Implied Consent Laws, he has thirty days from the date of his arrest to file a request for an administrative hearing before an Administrative Law Judge to contest the suspension. If the motorist does not request the administrative hearing, he will be suspended on a first offense for 90 days if his blood alcohol content was 0.08, or a year if the motorist refused the breathalyzer test. ((15. La. R.S. 32:667.))
At the administrative hearing, the Administrative Law Judge will determine among other things:
(1) Whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state.
(2) Whether the person was placed under arrest.
(3) Whether he was advised by the officer of his Miranda rights and other rights.
(4) Whether he voluntarily submitted to an approved chemical test and whether the test resulted in a blood alcohol reading of 0.08 percent or above by weight, or of 0.02 percent or above if he was under the age of twenty-one years on the date of the test.
(5) Whether he refused to submit to the test upon the request of the officer.
(6) Such additional matters as may relate to the legal rights of the person, including compliance with regulations promulgated by the Department of Public Safety and Corrections and rights afforded to the person by law or jurisprudence. ((16. La. R.S. 32:668.))
7. What happens in court?
At a DWI trial, the prosecution has the burden of proving that the motorist was driving while intoxicated. Under La. R.S. 14:98(A)(1)(b), the prosecution can also obtain a conviction for DWI if it proves that the defendant was operating a motor vehicle when his blood alcohol concentration was 0.08 or more by weight based on grams of alcohol per one hundred cubic centimeters of blood. The prosecution can also prove that a motorist was driving while intoxicated without the results of a breathalyzer.
To meet its burden of proof, the prosecution will usually call the arresting officer, other officers at the scene and the technician who administered the breathalyzer. The defendant is not required to testify at trial because of his rights under the United States Supreme Court decision in Miranda v. Arizona. ((17. Miranda v. Arizona, 384 U.S. 436 (1966).))
8. What are the penalties for a first offense DWI?
The crime of DWI in Louisiana is called “Operating a Vehicle While Intoxicated.” ((La. R.S. 14:98.)) Possible penalties for a first offense DWI are:
1. 10 days to 6 months in jail;
2. A fine of between $300 and $1000;
3. Participation in a court-approved substance abuse and/or driver improvement program; and
4. Suspension of license for one year. ((18. La. R.S. 14:98.1 & La. R.S. 32:414.))
9. What is an interlock ignition device?
An ignition interlock device is a mechanism like a breathalyzer device that is installed on the motorist’s car that measures the motorist’s blood alcohol content before he is allowed to drive his motor vehicle. The device is installed on the car with a specifically set blood alcohol level. If the measurement of the blood alcohol is above the specifically set level, the motor vehicle will not start. The ignition interlock device is allowed by state law to give a motorist whose license has been suspended the opportunity to drive his motor vehicle under certain restrictions.
10. Does the motorist need a lawyer at trial?
In Louisiana DWI cases, a motorist can represent himself at a trial or at an administrative hearing. However, that may not be a good idea because of the criminal and civil penalties that can result from driving while intoxicated. An experienced DWI lawyer who is familiar with Louisiana criminal and civil penalties can be a valuable asset to a person who has been arrested for DWI.
If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule.New Orleans criminal lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.