Can I sue for false arrest DWI

[quincy]

In general or in this case in particular?

Generally speaking if an officer makes good observations and records them in his report, it's actually quite easy to obtain a conviction for a DUI/DWI.

I thought I was speaking generally.

I understand the strength of an officer's observations. When a prosecutor is up against a skilled criminal defense attorney, however, the prosecutor's lack of any drug or alcohol evidence would make a DUI conviction difficult at best.

In tchandlerj's incident in particular, and based strictly on what he has said, it could be difficult to support a DUI conviction because there is no apparent connection to alcohol or drugs (no smells, no empty bottles, no field tests, no breath or blood evidence) and there is some question as to what the officers actually observed.

That said, I think tchandlerj might be leaving out some important details.

 

[CdwJava]

Yeah. I doubt even a marginal officer would make an arrest for DUI without any indicators at all other than being asleep at the wheel.

 

[HighwayMan]

I understand the strength of an officer's observations. When a prosecutor is up against a skilled criminal defense attorney, however, the prosecutor's lack of any drug or alcohol evidence would make a DUI conviction difficult at best.

I disagree. Alcohol evidence can consist of something as simple as odor of alcoholic beverage. Drugs are a different matter, but when it comes to alcohol it doesn't take a rocket scientist to put together a rock-solid case, especially when there is video of the breath test process.

I've had arrests with refusals (thus no chemical test evidence) and I only had to go on SFST's and/or my observations, all well documented. It was not hard to get convictions or outright guilty pleas. Of course, I had no way to really judge the quality of the attorneys involved.

In tchandlerj's incident in particular, and based strictly on what he has said, it could be difficult to support a DUI conviction because there is no apparent connection to alcohol or drugs (no smells, no empty bottles, no field tests, no breath or blood evidence) and there is some question as to what the officers actually observed.

I agree though that in the OP's case there are many issues which would seem to make a conviction a difficult proposition. There are a lot of question marks that the OP has not returned to clear up.

 

[quincy]

I disagree. Alcohol evidence can consist of something as simple as odor of alcoholic beverage. Drugs are a different matter, but when it comes to alcohol it doesn't take a rocket scientist to put together a rock-solid case, especially when there is video of the breath test process.

I've had arrests with refusals (thus no chemical test evidence) and I only had to go on SFST's and/or my observations, all well documented. It was not hard to get convictions or outright guilty pleas. Of course, I had no way to really judge the quality of the attorneys involved.

I agree though that in the OP's case there are many issues which would seem to make a conviction a difficult proposition. There are a lot of question marks that the OP has not returned to clear up.

Following is a link to a good overview presented by Justia that speaks to officers' observations as evidence, for those of us who are not police officers. I am not convinced that all officers are good about carefully documenting their observations and I still believe that, without hard evidence (like BAC or breath tests, field testing, recovery of open containers, etc) to support a DUI, a prosecutor will have a difficult time winning a DUI conviction against a defendant represented by a skilled criminal defense attorney.

But I am willing to concede that I could be wrong.

https://www.justia.com/criminal/drunk-driving-dui-dwi/docs/detection-note-taking-testimony.html

 

[PayrollHRGuy]

This has been a very interesting discussion but just so the OP understands. Being found not guilty of a charge or having a charge dismissed, for some reason other than something like officer misconduct, does not a false arrest make.

 

[quincy]

This has been a very interesting discussion but just so the OP understands. Being found not guilty of a charge or having a charge dismissed, for some reason other than something like officer misconduct, does not a false arrest make.

Right. There is nothing said by tchandlerj that shows there was a false arrest.

 

[HighwayMan]

I am not convinced that all officers are good about carefully documenting their observations

That goes without saying - no argument from me there.

...without hard evidence (...field testing...

Well, field testing (SFST) is just a bunch of observations as well.

If an officer can't take good enough notes/make good enough observations in order to stand a chance of winning in court, then I'm sure the same would apply to any observations/notes of the SFST results.

 

[quincy]

That goes without saying - no argument from me there.




Well, field testing (SFST) is just a bunch of observations as well.

If an officer can't take good enough notes/make good enough observations in order to stand a chance of winning in court, then I'm sure the same would apply to any observations/notes of the SFST results.

Right. But as described here, we have NO evidence other than officer observation and the observation is not backed by ANY test, field test or otherwise.

I think observations alone can only take an officer so far - and it should not be as far as a DUI conviction if challenged properly.

 

[Taxing Matters]

Even if all states allow for the possibility of a DUI conviction based on police observations alone, I think it would be awfully difficult to actually get a conviction. I would think any good criminal defense attorney could argue convincingly and successfully that there is no solid evidence.

Pretty much every state allows for conviction on a DUI or DWI under one of two circumstances: (1) the defendant was operating a motor vehicle with a blood alcohol content (BAC) of .08 or more (some states have lowered that for at least teen drivers) or (2) the defendant was operating a motor vehicle while actually impaired by drugs or alcohol. For (2) a defendant may be convicted regardless of the BAC level; even if it was below .08 the defendant is guilty if he or she is impaired.

And it is not all that difficult in a lot of instances for the state to get a conviction on (2). All the state needs is evidence that the driver was under the influence of drugs or alcohol and was impaired. You might be surprised how many drivers freely admit to the cop that they had been drinking or used drugs. A lot of drivers assume, wrongly, that just admitting to a single beer can’t get them into trouble. Even without that admission, often the signs of intoxication are fairly easy for a cop trained in what to look for to spot. And impairment is usually demonstrated either by the way the driver operated the car (weaving in the road, etc) or by how the person acts at the stop. Slurring of words, stumbling when the person walks, etc. Dash cam video/cop personal video is great for that.

Too many people think that if they have only a little bit to drink and thus are under .08 they are “safe” from a DUI conviction. But they aren’t because of (2). I tell clients the only sure way to avoid a DUI is to not have ANY amount of alcohol or drugs that can impair performance in their system when they drive.

 

[quincy]

Pretty much every state allows for conviction on a DUI or DWI under one of two circumstances: (1) the defendant was operating a motor vehicle with a blood alcohol content (BAC) of .08 or more (some states have lowered that for at least teen drivers) or (2) the defendant was operating a motor vehicle while actually impaired by drugs or alcohol. For (2) a defendant may be convicted regardless of the BAC level; even if it was below .08 the defendant is guilty if he or she is impaired.

And it is not all that difficult in a lot of instances for the state to get a conviction on (2). All the state needs is evidence that the driver was under the influence of drugs or alcohol and was impaired. You might be surprised how many drivers freely admit to the cop that they had been drinking or used drugs. A lot of drivers assume, wrongly, that just admitting to a single beer can’t get them into trouble. Even without that admission, often the signs of intoxication are fairly easy for a cop trained in what to look for to spot. And impairment is usually demonstrated either by the way the driver operated the car (weaving in the road, etc) or by how the person acts at the stop. Slurring of words, stumbling when the person walks, etc. Dash cam video/cop personal video is great for that.

Too many people think that if they have only a little bit to drink and thus are under .08 they are “safe” from a DUI conviction. But they aren’t because of (2). I tell clients the only sure way to avoid a DUI is to not have ANY amount of alcohol or drugs that can impair performance in their system when they drive.

I am not surprised by convictions where a defendant has admitted to drinking.

 

[justalayman]

I am not surprised by convictions where a defendant has admitted to drinking.

The problems lies in proving the driver was impaired, and sufficiently impaired to be guilty of violating the law. That is where I would expect to see charges attacked by defense counsel.

In fact, doesn't one of the left coast states require a specially trained officer to make the determination of impairment for a charge to stand a snowballs chance of being proven? If memory serves me well (which is getting to be an unrealistic expectation), Carl spoke of such an officer at one time.

It's funny (not humorous funny but oddly funnny) that my mother whose average bac was likely to result in a comatose state for most people would not have been considered to be impaired. No joking. She literally drank enough vodka daily to keep several people intoxicated but was one of the most competent driver I've known. About the only way to legitimately convict my mother of
DUI would be through a bac test.

On the other hand, if I drink a single beer the impairment would be easily determinable. Heck, at .08 I would likely be unable to walk let alone drive.

 

[quincy]

...

On the other hand, if I drink a single beer the impairment would be easily determinable. Heck, at .08 I would likely be unable to walk let alone drive.

I'll keep that in mind when treating you to Red Dwarfs. I'll have an Uber lined up.

 

[justalayman]

I'll keep that in mind when treating you to Red Dwarfs. I'll have an Uber lined up.

Youll be able to recignize me by my shirt. I'll be the one with instructions for the driver on them;

Just pour me at my door when we get there.

 

[Taxing Matters]

The problems lies in proving the driver was impaired, and sufficiently impaired to be guilty of violating the law. That is where I would expect to see charges attacked by defense counsel.

The rule regarding what constitutes impairment varies from state to state. The OP is evidently in NC. The rule in that state, which is quite longstanding, is this:

The correct test within the meaning of the statute is not whether the party charged with the violation thereof had drunk or consumed a spoonful or a quart of intoxicating beverage, but whether a person is under the influence of an intoxicating liquor or narcotic drug by reason of his having drunk a sufficient quantity of an intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.​

State v. Ellis, 261 N.C. 606, 607, 135 S.E.2d 584, 585 (1964).

Compare that with Colorado, which has two offenses, driving under the influence (DUI) and driving while ability impaired (DWAI). DUI is the more severe offense, and requires that the state prove that the driver was affected “to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” CRS § 42-4-1301(1)(f). For DWAI the state need prove only that the driver was affected “to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” CRS § 42-4-1301(1)(g). So in Colorado, if there was impairment to even the slightest degree because of alcohol or drugs the driver is guilty of at least the DWAI offense.

Point is that the law varies from state to state and in some states, like Colorado, any sign of impairment combined with proof of having used alcohol or drugs can be enough to get you convicted.

 

[quincy]

Youll be able to recignize me by my shirt. I'll be the one with instructions for the driver on them ...

Everyone I know wears that same shirt.



By the way, a North Carolina Supreme Court case was linked to back in post #35 (Atkins v. Moye, 1970) ... if anyone cares to read it.