DUI Arrest without Breath, Blood, or Chemical Testing

“DUI arrests for “probable cause” doesn’t mandate that the police officer show a driver was actually under the influence, only that it is probable that he was”.

1066864_police_cruiserA police officer need only have a reasonable suspicion that you have violated a traffic law (like the speed limit) or engaged in criminal activity to stop you. “Reasonable suspicion” means that there is a “particularized and objective basis” for believing somebody had violated the law. Once you are stopped, there must be probable cause to arrest you.

In a recent case, the Arizona Court of Appeals considered whether there was probable cause where the defendant was convicted of four counts of aggravated driving under the influence (aggravated DUI). The defendant had been stopped in his vehicle after a police officer visually estimated he was going fifteen miles over the speed limit. According to the police offer, he’d been trained to accurately estimate vehicle speed within five miles per hour.

Once the officer stopped the defendant, he saw the defendant had watery bloodshot eyes, spoke with slurred speech, and smelled like alcohol. The defendant couldn’t find his driver’s license and gave the officer his social security number. It turned out that he provided his wife’s social security number. When the officer learned this, he asked the defendant for his wife’s social security number. This time, the defendant gave him his own number. The officer administered a test for alcohol impairment. When the defendant refused a breathalyzer test, he was arrested.


After being sentenced to four months incarceration for concurrent terms, the defendant appealed, arguing that his traffic stop was illegal for lack of reasonable suspicion and his arrest was illegal for lack of probable cause. He had tried to suppress evidence (keep it from being used at trial) from his stop and arrest.

The judge denied the suppression motion, deferring to the police officer’s claim that he could accurately estimate the speed and this was the reason for the stop. The judge also found that while probable cause was close, the totality of the circumstances supported the officer’s arrest of the defendant.

On appeal, the appellate court explained that for this type of motion, it defers to the trial court’s factual findings, including the issue of credibility. If a trial court, as in this case, finds a police officer credible, the appellate court assumes the trial court is in a superior position to make that determination and its judgment will not be disturbed.

The defendant argued that the dashboard police officer’s car was equipped with a video camera. He argued that the video was an objective piece of evidence contradicting the police officer’s estimation. However, there was no read-out of the speed of the defendant’s car on the video. Accordingly, the trial court found it did not contradict the officer’s estimate. The appellate court agreed with the trial court. The defendant also argued that the officer did not have probable cause to arrest him because he only collected evidence regarding alcohol consumption, not his impairment.

“Probable cause” carries a higher standard than reasonable suspicion. The police can arrest you if he or she has probable cause to believe you have committed a felony or crime in his presence. With DUI arrests, probable cause doesn’t mandate that the police officer show a driver was actually under the influence, only that it is probable that he was.

The appellate court held that probable cause does not require law enforcement `to show that the operator was in fact under the influence’; Arizona v. Aleman ( 2005). The Arizona Court of appeals held that when evaluating and justification of probable cause, they are not considering technical factors. But, instead, probabilities that are factual and practical with circumstances that would lead to conclusions made by a reasonable and prudent person Arizona v. Dixon (1987),.

The Appeals Court also explained that an officer may draw inferences that someone is impaired by alcohol by relying on his own experience and training. In light of the defendant’s odor of alcohol, confusion about his social security number and performance on the test, it was very probable he’d been driving under the influence.

National Highway Traffic and Safety Administration’s Post-DUI Stop Cues

Studies by the National Highway Safety Administration (NHTSA) revealed 10 post-stop DUI Cues that have been found to be consistent with impaired driving. They are considered in addition to to a list of driving cues in evaluating whether or not a driver should be investigated for DUI, or considered in totality as “probable cause” for arrest if a DUI breath test or blood test is refused. The items below are considered cues when the Driver has difficulty performing the following skills:
• Operating vehicle’s controls;
• Getting out of the vehicle;
• Finding and retrieving their driver’s license and registration;
• Answering questions and communicating (excluding language barriers);
• Maintaining body balance;
• Standing without leaning on the motor vehicle or other stationary object;
• Talking without slurring words due to alcohol or drug influence;
• Responding to officer timely or without asking the officer to repeat the question;
• Providing accurate information or answers to routine questions;
Other post-stop cues to the police officer include a strong odor of spirituous beverages on the driver’s breath or clothing, and opened alcoholic beverage containers in plain sight within the vehicle.

As you can see, driving with any degree of impairment can be a very bad idea because Arizona police officers are entitled to rely not just on breathalyzer results, but on a variety of empirical information.

If you have been pulled over on suspicion of drunk driving or arrested for drunk driving in Arizona, you should be aware that the penalties are very harsh. A criminal defense attorney with a strong background in DUI Law can make a huge difference to your case. Contact The Law Office of James Novak at 480-413-1499 for a free consultation, if you face DUI charges in Phoenix, Tempe, Mesa, Chandler, Gilbert or other surrounding East Valley Cities.

Additional Resources:

• National Highway Traffic Safety Administration

Drug DUI and Super Extreme DUI laws

Arizona 2012 Statewide DUI Enforcement Statistics

Alcohol/Substance Abuse Counseling and Treatment Providers

Mothers Against Drunk Driving

More Blogs

Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
<Felony DUI Laws and Penalties in Arizona, Phoenix DUI Lawyer Blog, July 1, 2013

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