Little Evidence Can Still Lead to a DWI Arrest

Posted by Ryan Russman | May 22, 2014 | 0 Comments

Law enforcement is always looking to make more DWI arrests. For example, The Portsmouth Police Department stated in their annual report that they received $495,000 in grant money in 2013 to go to programs such as DWI saturation patrols and sobriety checkpoints. These are both ways for police to catch more intoxicated drivers. Unfortunately, the emphasis on making arrests can sometimes lead to police being too critical when stopping drivers and innocent people getting arrested.

A recent story out of Austin, TX demonstrates this very idea. Police stopped Larry Davis for suspicion of DWI. Police say that he stated that he had consumed one alcoholic drink earlier in the evening and that he appeared intoxicated based on the performance of field sobriety tests. He was arrested and taken to jail. Once there, Davis submitted to a breathalyzer test which revealed he had no alcohol in his blood. Still not convinced, police asked him to take a blood test in order to check for drug intoxication. Davis had to spend the night in jail and then wait several months for the results of his drug test which also showed that he was had no drugs present in his system. Instead of realizing their error, Austin police stood by their decision and suggested that perhaps he was intoxicated by a drug, such as marijuana, that did not show up in the blood test.

One might be wondering how something like this is allowed to happen. But DWI assessment is open to interpretation and many times, when a person is stopped by police and DWI is suspected, it will largely be up to the officer to decide whether or not an arrest should be made. Law enforcement generally assesses alcohol or drug impairment by looking at 4 factors:

  • Chemical sobriety test results:  Law enforcement use blood and breath tests as a way to check DWI suspects to see if they have alcohol or drugs in their system. Only breath tests are available for officers to use in the field and these tests only measure alcohol concentration. This means that a driver suspected of drug intoxication cannot be measured until an arrest has already been made.
  • Field sobriety test performance: These tests are physical actions that are performed by the suspect while and officer observes. Though they can be effective at revealing impairment, many other factors can lead to a suspect to fail.
  • The driver's state: When an officer stops a driver, they will observe their state for signs of impairment. This includes the smell of drugs or alcohol on their breath, how they interact, and even how they were operating the vehicle prior to being stopped. In some cases, a drug recognition expert or DRE is available to assess a suspect who is accused of drugged driving.

Aside from this evidence, officers are trusted to use their own opinions when making DWI arrest. As Davis's attorney states, DWI can often be an “opinion crime”. If you are facing charges for a DWI in New Hampshire, it is important to call an attorney right away. Even in cases where there is little evidence against you, a criminal charge and a conviction could be possible if you do not have adequate representation.

About the Author

Ryan Russman

Attorney Ryan Russman has dedicated his career to fighting for the rights of New Hampshire citizens. His practice, based in Exeter (Rockingham County) New Hampshire, is limited to cases involving DWI and DUI, other motor vehicle and criminal cases, and many cases involving personal injury. He is, however, best known as one of New Hampshire's leading legal authorities on DWI.


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