This article was written by Attorney Bradley Oastler in our Syracuse office.

While most people who have had limited contact with the justice system believe that police investigations are conducted in a manner which leads to a proper arrest and conviction, this is not always true when it comes to DWI arrests. A DWI case, right from the first moments, is a process that is built on a pattern of assumptions which are built into the law, and even an officer’s training.

All signs point to intoxication

All law enforcement officers in New York- Troopers, Deputies, or local police- are trained in enforcement of impaired driving laws. The very first part of this training is learning to identify signs a driver is impaired before a vehicle stop is initiated. This includes a laundry list of driving acts: speeding, driving too slow, swerving within a lane, driving over lines, failing to signal, failing to stop, and many others.

What you may notice is that these are acts that commonly occur in daily driving at all hours. They are in no way an indicator of impaired driving if they happen at noon. But, when it comes to DWI enforcement, usually occurring at night, the police are trained to treat these signs as indicators a person is intoxicated. The officer, approaching your window, has already formulated the suspicion that you are intoxicated. This goes against common sense. But, the assumption is made that alcohol is involved and it is causing unsafe driving.

Once the officer approaches, he begins a face-to-face investigation and is looking for yet more clues to confirm what he already believes to be true. Almost universally, officers will note that a driver has glassy, bloodshot eyes. The assumption again is that the condition is reflective of alcohol consumption. However, this ignores the fact that frequently there are other factors to consider. DWI investigations late at night or very early in the morning are often conducted on a person who has been awake far longer than normal. Allergies are more and more prevalent amongst many people. Drivers oftentimes are upset when they have been pulled over. All of these factors can influence a person’s appearance, but the police report will only consider that this is an additional sign of intoxication.

The same analysis applies if a person fumbles with their wallet or license, or stutters or speaks softly- perfectly innocent and understandable reactions to a stressful situation. Again, these will be recorded as signs of intoxication. From the moment you are pulled over, the officer is looking for ways to build a case, and they may very well ignore actual, alternate explanations or what otherwise might be entirely innocent reactions. The assumption is intoxication. The assumption is guilt.

Investigation techniques are accurate.

Law enforcement officers in New York are further trained how to conduct a DWI investigation in a specific manner. Once the officer approaches the car and initially speaks with you, he will typically ask you to step out and perform a series of field sobriety tests. There is a standardized battery of three tests on which the officer should be trained, and the tests must be administered in a specific way.

The first test is the Horizontal Gaze Nystagmus test, which is designed to examine if an individual’s eyes move smoothly as they follow an object passing across their field of vision. The assumption is that the existence of nystagmus equals intoxication. The form an officer fills out after completing an arrest will simply allow them to mark that a person failed the test, and sometimes indicates the number of “clues” that led to that conclusion. However, what is not reflected on the form is that there are over 40 different types of nystagmus caused by many different factors. Resting nystagmus is even in training materials. The officer is merely detecting the existence of nystagmus. The assumption is that it is attributable to alcohol, without any further verification as to the actual cause.

The next test is the Walk and Turn test, which requires a subject to walk heel-to-toe for nine steps, execute a turn, and return nine steps. The assumption is that a person is capable of physically performing this task with little or no problem if there was no alcohol consumption, regardless of the situation. The same is true for the One Leg Stand test, the final test of the standardized battery. However, the assumption that there are no physical impediments and that other outside factors played no role in performance typically lead to the conclusion that a person is intoxicated even if there are many factors at play.

There are other field sobriety tests that officers regularly employ, such as testing a person’s ability to count numbers, recite the alphabet, or display hand-eye coordination. Much like the standardized tests above, the assumption is that they will accurately expose someone whose ability to drive is impaired. But, that assumption does not allow for consideration of the fact that all these tests are not one hundred percent accurate. It does not allow for consideration that non-standardized tests are never administered in a uniform manner. The assumption, again, is that intoxication is present.

Breath machines work properly

Perhaps the most familiar tool in the law enforcement arsenal is the breathalyzer. A typical DWI case involves the use of two different breath test machines, one portable breath test (PBT) and one chemical breath test (CBT). The broad assumption is that these devices are accurate, functioning properly, and confirm a person’s guilt.

That is not a safe assumption to make. PBTs are rarely if ever calibrated or maintained. They are typically assigned to a car or police unit and used repeatedly for years without any confirmation that they are still functioning as designed. In New York, PBT results are typically not considered reliable evidence in the eyes of the law, with results of a test often being excluded by a judge to avoid the danger that a jury might confuse a result for valid evidence.

The CBT is a machine whose result is considered to be reliable, and a jury for a DWI case will be instructed as such. A CBT is also calibrated and maintained on a regular schedule. However, it is up to the defense team to ensure that the protocols were followed. The assumption that the CBT is entirely accurate is a dangerous one due to human error in maintenance, human error in operation, and other factors that can influence the result.

A CBT, for instance, relies on very precise measurements of tiny amounts of energy that are passed through a breath sample. Put very simply, the CBT measures infrared light passed through a breath sample and/or measures the production of certain chemicals when a breath sample reacts with a substance introduced to it. An accurate result depends on the correct amount of energy being passed through a breath sample and on the machine measuring all parts of the reaction precisely. It also depends on the lack of radio frequency interference. It depends on a lack of other substances in a person’s breath or mouth. It depends on a lack of medical conditions that could impact the test. The number that comes from the machine, the number used to convict you, is based on a series of assumptions that allow it to be accurate. That is a dangerous chain of assumptions on which to base a criminal conviction.

Police officers are infallible.

The one factor that every law enforcement officer has in common with you and I is that they are human. Enforcing the law is a tough job. It can be dangerous and unpredictable, and it is the same world you find yourself in when you are stopped for a DWI.

Officers are trained according to an imperfect system, and sometimes they do not ask every question that should be asked or make a note of each observation they see. When the weight of the State of New York is brought to bear against a defendant, the assumption that many people nonetheless have is that the officer’s word is truth. They take an oath to uphold the law, they must be testifying about the honest truth.

That is generally true- officers are not lying to get convictions. But officers are not robots. They are often testifying about facts that occurred months or even years before, relying on hastily written notes or foggy recollections. Do you remember what you did seven months ago Thursday evening? It is not reasonable to think that an officer can recall every detail with crystal clarity.

Officers do not usually ask every question whose answer we wish we knew at trial. There are usually blanks that cannot be filled. Was there a stiff breeze that caused a defendant to wobble during the One Leg Stand? Were those emergency lights flashing in someone’s eyes? When did a person start drinking that afternoon? Answers to those questions could be critical to the State’s case or to a verdict. However, the answers may be unknown.

The assumption that the officer did a perfect job and that his training has resulted in an assured conviction is not always fair. There are mistakes that are made, just as everyone errs at times. It is up to the defense team to make sure that the mistakes or unknowns are made clear to a jury.

In nearly every DWI case, we see a number of assumptions that will bear heavily on a result if left unchecked. Guilt must be proven beyond a reasonable doubt by the government. Exposing the whole story, the mistakes, the doubt, the assumptions that fly in the face of common sense, is what the team at Nave DWI Defense Attorneys can do. The cards are stacked against you from the moment a DWI investigation begins, and we want to ensure we level the playing field for you.

The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem. Corporate offices for Nave DWI Defense Attorneys are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-866-792-7800. Prior results do not guarantee a similar outcome. Attorney Advertising.