OWI DUI DWI Checklist
The OWI/DUI/DWI–type charges are all very technical and have a narrowly defined set of rules that the investigating officer must follow. An officer's failure to follow these rules can result in the court or prosecutor dismissing your case or in the prosecutor making a better-than-average plea bargain offer. While there are many more nuanced rules an experienced OWI attorney or DUI attorney would evaluate, the following is a basic checklist of the issues an attorney would consider to defend your case.
1. Why did the police stop you?
Generally this is going to be a traffic stop. Police need a valid reason to pull you over, because a traffic stop is a seizure for the purposes of the Fourth Amendment to the United States Constitution.
Traffic stops tend to fall into two groups. First, equipment and moving violations can give an officer probable cause to stop you. These are things like cracked windshields, speeding, license plate issue, or having a headlight out. Second, an officer might say that he had reasonable suspicion to pull you over for OWI/DUI. Reasonable suspicion is commonly based on bad driving (i.e., swerving) or reports made by other motorists.
2. Probable cause or reasonable suspicion?
Did the police have sufficient cause to extend the traffic stop or turn the traffic stop into a more invasive OWI/DUI investigation? Just like the traffic stop, the police need a valid reason to extend the traffic stop and turn the stop into an OWI/DUI investigation, because they are increasing the invasiveness of their intrusion upon your Fourth Amendment right to be free of unreasonable searches and seizures.
Examining this phase of an OWI/DUI stop, an experienced OWI attorney or OUI attorney will immediately look for the common reasons police use to justify ratcheting up the search. The most commonly cited observations (that OWI/OUI attorneys refer to as “indicia of impairment”) are bloodshot and watery eyes, slurred speed, odor of alcohol, admission of drinking or drug use, and things like having a hard time retrieving your drivers’ license.
3. Probable cause to arrest
Did the police have probable cause to arrest you for OWI/DUI? Even though an officer might have had enough reason to ask you to get out of your car, the decision to arrest you ratchets up the Fourth Amendment seizure even further. To actually arrest you and take you back to a police station for you to provide a breath test sample, the officer needed probable cause that you were in fact driving while intoxicated.
Experienced OWI attorneys or DUI attorneys will be able to recite this next step in their sleep. The officer was looking for anything that he could use to say that you’re impaired, for example swaying while standing, falling to follow directions, crying or laughing inappropriately. The officer almost certainly administered field sobriety tests like the one-leg stand, walk-and-turn, and some version of counting and/or the alphabet. The officer also probably looked at your eyes while you followed a pen or his finger. That was a test for horizontal gaze nystagmus (a jerking movement of the eye).
What an OWI/DUI attorney looks for in this phase is whether the officer’s observations were accurate and whether he administered the tests correctly. Most of the time there is some sort of recording of the stop — audio, dashcam and/or body cam — and an OWI/DUI attorney will comb through this with a fine-tooth comb to make sure the officer’s allegations were accurate. An OWI attorney or DUI attorney will verify whether the officer administered the various tests correctly. For example, the walk-and-turn is standardized such that the same instructions should always be given. Or when checking for horizontal gaze nystagmus, the officer is supposed to move the stimulus at a certain speed. Administering the tests wrong could invalidate the probable cause to arrest.
4. Did the officer use the breathalyzer correctly?
Did the officer administer the breathalyzer correctly? Two different breathalyzers are usually involved. The first breathalyzer — a “PBT” or preliminary breathtest — is given roadside at part of the probable cause determination. The second breathalyzer — usually some variant of the “Datamaster” — is administered at a police station or jail. The breath-alcohol level determined by the Datamaster is generally the primary evidence used to convict an individual of OWI/DUI.
These machines are not infallible and must be used in accordance with strict procedures. An experienced OWI attorney or OUI attorney will be familiar with these procedures and with all of the various errors that can invalidate a test result (for example, radio frequency interference, barometric anomalies, calibration issues, and mouth alcohol and other interferents).
5. Advice of chemical test rights
Did the officer advise you of your chemical test rights? An OWI/DUI attorney will also verify whether the officer made any mistakes involving the defendant’s procedural rights, such as advising the defendant of their chemical test rights. These rights are provided by statute and must be read to a person arrested for DUI. Although failing to provide this advisement no longer results in an automatic dismissal in Michigan, failure to advise a person of their chemical test rights still presents a problem to the prosecution’s case and also can invalidate a Secretary of State license revocation.
What about my Miranda rights?
Did the officer advise you of your chemical test rights? An OWI/DUI attorney will also verify whether the officer made any mistakes involving the defendant’s procedural rights, such as advising the defendant of their chemical test rights. These rights are provided by statute and must be read to a person arrested for DUI. Although failing to provide this advisement no longer results in dismissal, failure to advise a person of their chemical test rights still presents a problem to the prosecution’s case and also can invalidate a Secretary of State license revocation.