Operating under the Influence of alcohol (OUI or DWI), according to the statue can be proven in two different ways.

First, the Commonwealth can choose to proceed under the theory that a suspect’s consumption of alcohol impaired their ability to operate their vehicle safely and/or the Commonwealth can proceed on the basis that the suspect took a breathalyzer and that reading registered .08 or above.  While in the latter instance, the person charged can challenge the breathalyzer machine based upon calibration, execution and other external factors, the focus of this article is on the former theory of OUI (or what is often referred to as DWI) and what is considered in presenting the Commonwealth’s strongest case.

In order to prove impairment of an individual without the black and white reading associated with the breathalyzer test, the officer and Commonwealth must utilize other aspects of the motor vehicle stop to prove impairment.  The arresting officer will normally divide his stop into three phases:  (1) His observations of the alleged offender while that person is still operating the vehicle (pre-stop), (2) Observations of the alleged offender upon initial stop and exit of the vehicle (stop) and (3) Performance on Field Sobriety tests (post-exit).

In Phase one, the officer is looking for any motor vehicle infractions, response to police presence and instruction to pull over, and operation of the vehicle during the execution of the stop.  In Phase two the officer is taking note of the alleged offenders movements while still in the vehicle, odors of alcohol, visual signs of impairment as evidenced by “red bloodshot eyes,” and how the DWI suspect responds to questioning both in substance and speech pattern.  Once the request is made to exit the vehicle, the Officer will note whether the DWI suspect exits without incident, can walk to the back of the vehicle and whether he/she utilizes any method of physical support in moving to the rear of the vehicle.  Phase three focuses on the field sobriety tests and the DWI suspect’s performance on those purported field sobriety “tests.”  In my experience almost everyone I have spoken with believes that he/she passed the field sobriety tests and appropriately performed the tests as requested.  In 99% of situations, the police indicates otherwise citing failure to remain still during instructional phases, beginning the test too early, or not performing the test in strict compliance with the instructions.  A failure is simply a compilation of three clues which can be as mundane as walking heel to toe with too much space between your feet verses touching heel to toe, beginning the test before prompted and swaying slightly while walking.

It is important in any OUI or DWI case to focus on the things that suspect did well.  If it is not listed in the report, chances are that person did it well.  Thus, if there is no mention of the suspect’s failure to signal at the initiation of the officer’s blue lights and siren or that the person failed to pull the vehicle over in an expeditious manner – it was likely done without incident – a factor that would convey vigilance during driving verses the purported impairment.  It is important to know the clues or factors that the police use to determine impairment in defending any OUI or DWI matter.  If you have been arrested for OUI or DWI and need a competent and experienced criminal defense attorney, please contact Kristen F. Bonavita, Criminal Lawyer at 978.376.6746 for a free consultation.