AV Preeminent
The Florida Bar

What You Should Know Before Betting in the Car

You are with your friends in a bar or restaurant or you stopped in the bar after work to wind down. You have one or two shots, one or two beers, one or two cocktails. Depending you how much you weigh, most likely you are now legally intoxicated.

When a police officer believes he has observed a possible drunk driver while on routine partrol, he will look for the usual manner of behaving while intoxicated (weaving, crossing the center line, driving too slow or too fast, etc.) or for a moving traffic violation/offense that will serve as “probable cause.” This is why a police officer will follow a suspected intoxicated driver at a safe distance to observe a driver’s pattern to determine if their opinion that they have spotted someone intoxicated may be correct.

Officers will develop “reasonable suspicion” that a person is driving while impaired after observing a vehicle from behind. More than likely, the police officer will witness a traffic offense, at which time they have developed “probable cause” to lawfully stop the vehicle and investigate their suspicions. A police officer MUST have probable cause to stop your vehicle.

After stopping a vehicle, the police officer must conduct an investigation to prove his reasoning for the stop, i.e. his proof of probable cause. The proof would be physical signs or evidence indicating intoxication.

The signs a police officer always looks for are a person’s speech, physical movements, eyes and odor. A person’s eyes are probably the most important telltale indication of an impaired driver: the eyes do not lie. This can be proven by the nystagmus test, which results in rapid involuntary oscillation of the eyeballs when a person is intoxicated.

The police officer will ask some simple questions. These, coupled with the operator’s driving pattern, physical symptoms, answers, and odor of alcohol from the driver’s breathing or inside the vehicle, will assist the police officer to form his or her professional opinion of whether or not to reasonably suspect that the driver may have been operating a vehicle on a public highway while either impaired or intoxicated from alcohol or drugs, or both.

If the answer is “yes,” the police officer does have reasonable suspicion to believe the driver is impaired based on their training and experience, and can legally continue to the next investigative step. The officer will ask the driver to exit their vehicle where he will further observe the driver’s physical coordination, speech and general orientation to the location of the traffic stop. They will always ask you if you know where you are.

The police officer will advise the driver that he needs to conduct physical coordination tests. Police officers have undoubtedly encountered a driver who will demand at this point to speak with his or her attorney prior to participating in further tests. A person being investigated for gross misdemeanor driving does not have a constitutional right to consult or have an attorney present before the officer administers any of the field balance tests.

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