Scott C. Nolan devotes most of his practice to defending individuals who have been charged with DUI in Manassas, Prince William, Manassas Park, Gainesville, Haymarket, Woodbridge, Lake Ridge, Dumfries, Bristow, Warrenton, Centreville, Fairfax, Stafford, Chantilly, Leesburg, Ashburn, Sterling, Herndon, Reston, Alexandria, Annandale, and Arlington.
Scott has been practicing law in Northern Virginia since 2000. As a member of the National College for DUI Defense and the National Association of Criminal Defense Lawyers, he is committed to success through knowledge and works continuously to hone his knowledge of science and the law. He is well known to both courts and clients for his thorough preparation, his experience and his judgment. He has represented thousands of clients in criminal cases and is trained in the highly specialized fields of DUI/DWI Breath and Blood testing as well as forensic toxicology and the administration of Standardized Field Sobriety Tests.
After the initial encounter with a motorist, the police officer must decide whether or not to arrest him or her. Just as the officer must have reasonable, articulable suspicion for a traffic stop, the officer must have probable cause in order to make an arrest. Virginia defines probable cause as “whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed.”
How does an officer get probable cause? In a DUI case, it will be based on all the things you said and did prior to the arrest. The officer will note the motorist’s driving behavior – whatever caused him to stop the motorist in the first place. In addition, the officer will note every observation he makes after the stop, including the motorist’s behavior, appearance and performance on any field sobriety “tests”.
Here are a few examples of defenses related to an arrest that an asleep-at-the wheel “Dump Truck Lawyer” might not think about, causing you to lose your winnable DUI case:
FAILURE to Argue That The Officer Did Not Have “Probable Cause” for an Arrest
Probable cause is all about what the officer observes before the arrest, including the things that led to the traffic stop. Everything from how you looked, how you acted, how you smelled, what you said and field sobriety “tests” that you took will be used to determine whether the police officer had probable cause for an arrest. Great DUI Lawyers in Manassas, Prince William, Manassas Park, Gainesville, Haymarket, Woodbridge, Lake Ridge, Dumfries, Bristow, Warrenton, Centreville, Fairfax, Stafford, Chantilly, Leesburg, Ashburn, Sterling, Herndon, Reston, Alexandria, Annandale, and Arlington will examine each aspect of these circumstances and weigh whether they really do add up to probable cause.
Every officer in every DUI case will, at a minimum, repeat the same three supposed observations: An odor of alcohol, glassy, bloodshot eyes and slurred speech. Not only are these worthless as indicators of intoxication, the very fact that they’re present in every DUI case (including the ones found not guilty) tells you that some officers just repeat what they say in every DUI case. Scary, no?
FAILURE to Argue That Alcohol Has No Odor
One of the many things the officer nearly always says, as if by rote memorization, is that the defendant had “an odor of alcohol about his person” (or my favorite “an odor of alcohol emanating from his mouth”). Why don’t they just say “he smelled like alcohol”?
Alcohol has no odor. Let me repeat that: No one has ever actually had the “odor of alcohol about their person,” because alcohol has no odor. Any honest police officer will tell you that he can’t tell the number of drinks a person had from the odor, nor when the person consumed the alcohol, nor even what he drank.
Any great DUI lawyer in Manassas and northern Virginia knows that what actually smells in alcoholic drinks are the “congeners”, the things put into the drink to give them flavor. In fact, the drinks with the least odor tend to have the highest concentration of alcohol. A bottle of beer or a glass of wine is quite likely to have a more powerful odor than several shots of whiskey or vodka. Similarly, a bottle of non-alcoholic beer has the same odor as a bottle of normal beer but contains no alcohol. Then again, there are several common bodily processes that can result in the so-called “odor of alcohol” even when no alcohol is present in the body.
FAILURE to Argue That “Bloodshot Eyes” Are Not Evidence of Intoxication
Easily the least useful observation about a driver that comes up in every DUI case is when the officer claims the driver had “glassy, bloodshot eyes.” It is true that drunk drivers tend to have bloodshot eyes, but everyone knows that there are hundreds of reasons why a completely sober driver might have bloodshot eyes.
Most DUI stops occur late at night, when any person is more likely to have bloodshot eyes. A driver’s eyes might very well be bloodshot from tiredness or from exposure to cigarette smoke. A driver in in Manassas, Prince William, Manassas Park, Gainesville, Haymarket, Woodbridge, Lake Ridge, Dumfries, Bristow, Warrenton, Centreville, Fairfax, Stafford, Chantilly, Leesburg, Ashburn, Sterling, Herndon, Reston, Alexandria, Annandale, and Arlington might have allergies that cause his eyes to become bloodshot and watery. Those are all good reasons why people buy products like Visine, after all.
A “Dump Truck Lawyer” might not think that there is much to say about glassy, bloodshot eyes, but a great DUI lawyer will not let this silly statement pass without fighting the idea that it is somehow evidence of DUI.
FAILURE to Argue That “Slurred Speech” Is Not Evidence of Intoxication
As with “odor of alcohol” and “glassy, bloodshot eyes”, nearly every DUI arrest will include the claim that the defendant had “slurred speech”.
The problem with claiming that a driver had slurred speech is that the police officer has almost certainly never met the driver before, and doesn’t know what the driver sounds like normally. It presupposes that the driver normally speaks in a different manner than when the officer encountered him. Courts aren’t allowed to suppose or guess, and neither are police officers.
The “Dump Truck Lawyer” may not ever try to argue this point, but great DUI lawyers in Manassas and NOVA will ask questions. Most officers are honest and will admit that they have no idea what the defendant normally sounds like. They will also usually admit that they can’t remember which words the defendant slurred. Often, all the officer knows at trial is that weeks or months before he or she checked the box on his report that said “slurred speech.”
FAILURE to Argue That The Defendant’s Ordinary Behavior Demonstrated Sobriety
Police officers are trained to look for failure, to mark down every little thing they thought was less than perfect about a driver’s walking, talking, standing and performance on the field sobriety “tests”. They are not, however, trained to look for success, and they rarely mark down observations that would tend to indicate that a driver was sober. During a DUI investigation, the driver is graded on a variety of tasks he doesn’t ordinarily do (the so-called field sobriety tests), and isn’t graded on the ordinary things he does every day. If he was intoxicated, wouldn’t those ordinary things (like walking and standing and responding to the officer) also be affected?
A driver does a thousand things during and before a traffic stop that are never listed in a police officer’s notes. A police officer may note that a driver weaved within his lane, but is unlikely to note that the driver immediately noticed when the police officer activated his cruiser’s emergency lights and siren, or that he pulled over smoothly to a stop at an appropriate location on the shoulder of the road. The police officer may note that a driver used the doorframe to assist him in exiting the vehicle or failed one of the unfamiliar sobriety “tests”, but rarely ever notes that the driver walked smoothly to the rear of his car where the “tests” were to be performed.
There’s a word for this. It’s not dishonesty. It’s called “observation bias”. This occurs in science when the observers (or researcher team) know the goals of the study and allow this knowledge to influence their observations during the study. For example, if an observer knows that the researcher hypothesized that females speak in more complex sentences, they may believe they hear females speaking that way during the study even if it’s not really true.
A “Dump Truck Lawyer” may never think to argue this point, but great DUI lawyers will inquire of the officer about all the ordinary, normal things that the driver accomplished, such as: 1) He pulled over safely; 2) he got out of the car safely; 3) he followed the officer’s instructions; 4) he walked to the rear of his car safely; 5) he may have made choices about whether to waive his rights not to perform field sobriety “tests”. Since the law requires judges to consider “the totality of the circumstances” when deciding whether probable cause existed, any great DUI lawyer will make sure the judge hears about this good normal behavior, too.
DUI lawyer Scott Nolan wants to make sure that your rights are protected and that you have a fighting chance against a DUI ticket.
If you’ve been charged with a DUI, you could be facing serious consequences that will impact your life (and family’s) for years to come. You need an experienced DUI lawyer NOW. Please contact me at 703-361-0776 or by CLICKING HERE for a free and confidential conversation about your case.
As a DUI lawyer in Manassas, I serve clients in:
Northern Virginia, including Prince William, Manassas Park, Gainesville, Haymarket, Woodbridge, Lake Ridge, Dumfries, Bristow, Warrenton, Centreville, Fairfax, Stafford, Chantilly, Leesburg, Ashburn, Sterling, Herndon, Reston, Alexandria, Annandale, and Arlington.