AV Preeminent
The Florida Bar

Officers’ Overemphasis of Behavior to Show Impairment: Exiting the Vehicle.

I have written many articles over the years explaining how officers will exaggerate innocent behaviors in order to assist prosecutors in obtaining a conviction. The manner in which a DUI suspect exited his or her vehicle is often criticized and described in such a way as to bolster the State’s case. The most common method of doing this is by stating that the DUI suspect had to hold on to the door while exiting the vehicle. This obviously implies that the support of the car door was necessary to keep the suspect from falling to the ground. Hearing such statements frequently in DUI trials and motion practice, I am constantly on the lookout in my daily life for people exiting their cars. Whether it is in the parking lot of the local courthouse or the grocery store, I see lucid people grab on to their car doors as they exit their automobiles. Not for a second do I think that all of these people are impaired. All the same, a prosecutor will use this piece of evidence to every extreme in order to show impairment of a DUI defendant. Such evidence could even be considered quite damaging to the defense’s case if not contradicted by defense counsel. When properly handled, however, such evidence is not only undermined, but can actually be turned against the prosecutor to show overreaching on the part of law enforcement and the state attorney’s office alike.

The conditions of the pavement, the defendant’s physical condition, the design of the defendant’s automobile, or merely just habit, are all very reasonable explanations as to why one would hold a portion of their car while exiting. It is always necessary to point out that in 99.9% of the cases, the stopping officer had never met an individual prior to stopping his or her vehicle. The police officer had never seen the manner in which an individual exits the car every time it is parked. The defense attorney should always remember when questioning the officer to get into these details prior to asking the officer why he ordered someone out of the car in the first place. Obviously, what we are doing here is setting up the Motion to Suppress.

For non-attorneys reading this article, it is important to remember that we have constitutional rights and that officers cannot simply order you out of your car. They know this and will come up with all kinds of clever ways to explain their actions to defense attorneys. They know that violating an individual’s constitutional rights will result in a suppression of evidence and a dismissal of their case.

A line of questioning as to whether the officer had ever seen the way that an individual exits his vehicle prior to the stop and working backward can occasionally throw an officer off. Being caught off track may cause him to admit unintentionally that a suspect was ordered out of his vehicle without concern for officer safety or reasonable suspicion that a crime had been committed.

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