The winter holidays are rough on many people. About 20 percent of Georgians struggle with severe seasonal affective disorder or the winder blues, a slightly less serious condition. Many people count on the bottle to get them to Martin Luther King Jr. Day. So, it’s not surprising that alcohol consumption increases about 25 percent during the winter holidays.
DUI arrests increase during the holidays as well, and not just because more impaired motorists are on the road. Police officers are on the lookout for drunk drivers. When supervisors and politicians aggressively push for more arrests, police officers often take shortcuts. We’ll examine some of these aggressive pushes and law enforcement shortcuts below.
Law enforcement agencies often bow to political pressure and encourage officers to take shortcuts. But a Marietta criminal defense lawyer never bows the knee to a politician and never takes shortcuts. Instead, a lawyer dispassionately evaluates a case and tells clients about the good, the bad, and the ugly. Then, as the case progresses, attorneys diligently build defenses that guarantee successful outcomes in criminal cases.
Selective Traffic Enforcement Program campaigns are as much a part of December as Jingle Bells. The size and scope of each campaign varies. But they all share the same goal, which is to make as many DUI arrests as possible.
They have the same structural composition. Usually, a government grant pays officer overtime and other STEP campaign expenses. Recipients naturally want to show the government it got its money’s worth. A high number of DUI arrests is the only way to measure success.
Low-level STEP campaigns usually involve reassigning officers, deploying them to a certain part of town, and instructing them to issue as many DUI citations as humanly possible. As a result, inexperienced officers detain motorists and conduct DUI investigations, often for the first time in years. Furthermore, to pad their arrest totals, officers take shortcuts during these two phases of a DUI arrest.
Incidentally, police officers are naturally more aggressive toward the end of each month. Formal arrest and ticket quotas are illegal, but informal quotas are common. Most departments use them to evaluate performance.
Assume Mike and Tom work roughly the same beat and roughly the same shift. Mike records fifty tickets/arrests in a month and Tom records ten. Most likely, the captain will have a long talk with Tom and promote Mike.
A high-level STEP campaign usually includes DUI roadblocks. Patrol officers must follow all procedural rules concerning stops and investigations. Roadblock officers don’t have to follow detention rules, if the roadblock meets independent legal requirements, such as:
- Pre-checkpoint publicity that allows motorists to avoid the area if they choose,
- Lights and signs that clearly warn motorists about a checkpoint ahead, give basic instructions, and make the area as safe as possible,
- A neutral detention formula (e.g. inspect every third motorist) that a supervisor must set and officers can only change if traffic backs up,
- Short time frame, maybe three hours maximum, and
- Reasonable wait time, usually no longer than thirty seconds.
Checkpoints don’t affect Fifth Amendment rights. They must obey basic “move along” orders. Otherwise, motorists don’t have to answer questions or even roll down their windows.
Basically, reasonable suspicion, which is a two-part problem in DUI cases, is an evidence-based hunch. Eleven months out of the year, part one isn’t much of an issue in most cases.
Typically, officers use obscure traffic violations to justify motorist detentions. Some common ones include an object that blocks the driver’s vision, such as an air freshener or crucifix dangling from a rear view mirror, failure to stop before leaving a private driveway, and a license plate frame that obscures any information on the plate, like the tippy-top of “GEORGIA.”
When December rolls around, officers bend the rules, usually by getting the cart before the horse. Assume Officer Alice sees Ralph leave a bar late at night. She follows him until he rolls through a stop sign, and she pulls him over. In this case, Officer Alice’s reasonable suspicion was a hunch that she verified with evidence.
Part two is a “have you been drinking” investigation. Any admission usually justifies a “step out of the car” command. As mentioned, motorists must step out of the car. But they don’t have to answer this question or perform field sobriety tests. More on that below.
Officers often use physical symptoms, such as bloodshot eyes and slurred speech, to bolster reasonable suspicion claims. Subtleties matter. An odor of alcohol is a good example.
If Officer Alice says she smelled alcohol on Ralph’s breath, that’s one thing. But if she says she smelled alcohol in the car, that simply means Ralph was near people who’d been drinking.
Winter weather makes most people at least mildly ill, a factor that goes back to reasonable suspicion, which was discussed above. Illness often causes physical symptoms, such as bloodshot eyes. Furthermore, sick people often don’t sleep well, so they’re less alert behind the wheel and more likely to commit minor traffic violations.
Reasonable suspicion is not a one-size-fits-all concept. Officers must account for these differences. That’s basically what “reasonable” means.
More importantly for purposes of this section, winter weather affects DUI field tests and Breathalyzer calibration.
Winter’s long, dark nights impact the DUI eye test, which is already the shakiest FST. The “follow my finger” eye test detects nystagmus, a condition also known as lazy eye. Dark skies make small pupil movements difficult to see. Therefore, officers often give themselves the benefit of the doubt and say they “thought” the suspect had nystagmus.
The standard of evidence is higher at this point. An officer’s assumption, given the shaky science behind the HGN test, usually is insufficient.
Alcohol can cause nystagmus, but so can other things, mostly a childhood brain injury. In fact, many people have a lazy eye, but the symptoms are so mild, they are unaware of their conditions.
Weather changes also affect Breathalyzer calibration. Modern Breathalyzers have so many bells and whistles that they’re very sensitive to temperature changes.
Usually, the state has the burden of proof to produce maintenance records that show proper calibration. If it cannot produce these records, the judge could throw the results out of court. Alternatively, a Marietta criminal defense attorney could partner with a chemist, who explains the impact of improper calibration to jurors.
Many special issues affect winter holiday DUIs. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.