DWI in Louisiana


Intoxilyzer _tools


A question of Shakespearean proportions: To blow, or not to blow?


When coming up with the best way to present information and offer guidance and advice to people arrested and facing prosecution for an alcohol-related vehicular offense (DWI, Vehicular Homicide, Vehicular Negligent Injuring) I decided upon a police reporting style of presentation, absent any statutory number references or obscure legal terminology. The following is in an outline-based format and based upon the hundreds of DWI arrest reports I have written and seen, along with explanations of the police procedures and investigative methods utilized in a typical DWI investigation.


I. How the Accused Comes into Contact With the Police


A.  Traffic Accident- many times I have personally investigated a traffic accident in which one, or both, of the drivers displayed symptoms of intoxication.


B.  Traffic Violation - the police officer witnesses a traffic violation (a hazardous, or "moving" violation, such as running a red light, speeding, weaving between traffic lanes; or a non-hazardous violation, commonly referred to as a "non-moving" violation, such as an expired license plate or inspection sticker, or a head/tail light out). Once the police officer witnesses the traffic offense, he then has probable cause to stop and detain the vehicle and driver. While making the traffic stop, the officer looking to make a DWI arrest will be watching for the following actions which may be indicative of an impaired driver:

-The suspect vehicle passes up several opportunities to safely pull over before finally doing so,

-The suspect vehicle pulls over in an unsafe manner, such as striking curbs or other fixed objects as he pulls over- the suspect stops in a main travel lane.


II. Face-to-face Contact and What the Police Officer is Looking For


A.  The first observation the officer will make is the manner in which the suspect exits his vehicle. I found, through experience, that a good sign of an impaired driver is where, as he attempts to exit his vehicle, he seems to search for the ground with his left foot, grasps the car door and door frame with his hands to help him exit, or leaves the vehicle in gear as he exits his vehicle.


B.  Unless the officer is dealing with a driver whose intoxication symptoms are extreme or obvious, the first thing the driver will be asked for is his driver's license, proof of vehicle insurance, and vehicle registration. (Note that the driver is being asked to produce multiple documents. The reason behind this type of request is that alcoholic-beverage consumption impairs one's ability to perform multiple tasks at the same time.) In response to the officer's request, not only must the driver find and produce the correct documents, he must also remember what the officer has asked him to produce. Here, a police officer will be watching for the following mistakes which may be indicative of an impaired driver:

-The driver's response to the request is incomplete, in that he finds and produces only his driver's license and registration, or some combination thereof;
-The driver produces expired documents;
-The driver repeatedly searches through a stack of papers looking for his insurance and/or registration but cannot find them, all the while the officer has seen the driver pass over the very documents he has requested;
-The driver produces incorrect documents, such as handing over a credit card instead of his driver's license
-The driver has "butter fingers" in that he drops things.


Additionally, the officer may interrupt the suspect-driver's document search with a question in order to see if, after answering the question, the driver has the presence of mind to return to the search for what the officer has asked. (Remember, in a DWI investigation, a main investigative tool is seeing how the suspect reacts and responds to having his attention divided. This concept is further explored in the field sobriety testing segment below.)


C.  During this stage of the officer's investigation, it is likely he will detect, and make note of the following:

-An odor of an alcoholic beverage;

-Slurred, stuttering, or incoherent speech;

-Swaying balance, or the driver's need to balance himself by leaning against his vehicle or other fixed object.


III. The Police Officer is Suspicious: Questioning and the Field Sobriety Drills


A.  General Questions


These include the routine "where are you coming from?" and "where are you going?" to the more DWI specific questions of "Have you been drinking?", "How much have you had to drink?" and "Do you feel you're under the influence of an alcoholic beverage?"


Around this time, the driver should hear his Miranda rights being told to him by the police officer. (Such as the right to remain silent, to an attorney being present during questioning, that statements the driver makes can be used against him at trial, and the right to a court-appointed attorney if the suspect cannot afford one.) The driver may also be asked to recite a portion of the alphabet, typically starting with a letter other than "A" and ending with a letter other than "Z". (Once again, a divided attention task has been requested by the officer. Here the driver must remember where to start from, to recite the portion correctly, and to stop at the correct letter.)


B.  The Standardized Field Sobriety Tests

Introduction: calling these tests is a little bit of a stretch, as there is no ability to either "pass" or "fail". What these drills, which is a more appropriate term, tell the officer is the likelihood that the tested person's blood alcohol is .10grams% or higher. The following three field sobriety tests are the only scientifically validated tests.

Horizontal Gaze Nystagmus Drill

Img -horizontal -gaze -nystagmus -instructions

This drill is commonly referred to as the HGN drill, or eye gaze test. The test is performed whereby the officer moves an object from left to right a short distance from the suspect's face and slightly above eye level.


What the officer is looking for : The officer is looking for the eyes to jerk rather than move smoothly as they move left to right; for the eyes to jerk left to right when the tested suspect is looking out the corners of his eyes(called maximum deviation point) for a few seconds; and for the eyes to jerk left to right when the tested suspect is looking at a forty-five degree angle as the eyes move towards the side.


The science behind this test : Scientific testing of this drill enables police to identify 77% of the suspects correctly as having a BAC of at least .10g% when a minimum of four clues are detected. This is the most reliable of the three field sobriety tests.

Walk and Turn Drill

Walk And Turn DrillThis is the second of the field sobriety tests. To begin this drill, the officer has the suspected drunk driver stand in place with one foot behind the other,where the toe of the rear foot touches the heel of the lead foot. The officer will ask that the test suspect to remain in that position during his instructions and demonstration of the drill and until instructed to begin the drill./This test is quite simple. It is performed by taking nine heel-to-toe steps in a straight line without stopping, counting aloud each step. The arms are to be kept by the suspect's side during the test. At the end of the ninth step, the suspect is to keep the front foot on the ground as he pivots to his left with the rear foot. The test subject then repeats the drill by taking nine return steps in a similar fashion.


What the officer is looking for : Subject does not maintain balance during the instruction phase; the suspect starts the test before being told to do so; the suspect stops while walking; the suspect fails to touch heel-to-toe; the subject uses his arms for balance; the suspect does not turn as instructed; the subject does not take the correct number of steps.


The science behind this test: Scientific testing of this drill enables police to identify 68% of the suspects correctly as having a BAC of at least .10g% when a minimum of four clues are detected.

One Leg Stand Drill

One Leg StandThis is the last of the field sobriety drills that I will describe. To begin this drill, the officer will ask the suspect to stand with his feet together and his arms down by his sides. The test subject will be advised not to begin the test until instructed to do so. The officer will then explain and demonstrate that the suspected drunk driver is to raise the leg/foot of his choice six (6) inches off of the ground and count aloud to thirty (30), all the while keeping his arms down by his sides and watching the raised foot. The officer is supposed to time this drill and require the foot to be raised for thirty (30) seconds, regardless of how fast the driver counts.


What the officer is looking for : the driver sways while balancing; puts his foot down prior to thirty (30) seconds elapsing; the driver hops on one foot; or the driver uses his arms for balance.


The science behind this test : Scientific testing of this drill enables police to identify 65% of the suspects correctly as having a BAC of at least .10g% when a minimum of four clues are detected.


C.  Final Thoughts on the Standardized Field Sobriety Tests

There is a common theme in all of the physical tasks that the officer asks the suspect to perform, namely divided attention. All of the tasks require the suspect to both remember what he has been asked to do, and to perform many of those tasks simultaneously. Alcohol consumption has been shown to impair a person's ability to perform multiple tasks at the same time. And of course, one everyday activity which requires us to divide our attention and perform multiple tasks simultaneously should quickly come to mind - driving a motor vehicle.


D.  My Advice

When faced with the opportunity to take these field sobriety tests, one should keep in mind that, unlike the breath/blood alcohol or chemical test, there is no consequence or penalty for refusing them. One must keep in mind that it is at the conclusion of these tests that the officer is going to make the decision on whether to arrest the driver for driving while intoxicated. These field sobriety tests are designed to help him make that decision.


Were I to ever face this situation and had consumed no alcoholic beverages, or medications containing alcohol (i.e. Niquil) or a scheduled drug in them, I most likely would take these field sobriety tests. However, had I consumed (and it is important to note that I am male and weigh approximately 200 pounds) any alcohol or medication within the last couple of hours prior to these tests, I would refuse them.


IV. The Intoxilyzer 5000 Breath-Alcohol Test Machine and Chemical Testing

5If the officer has just introduced you to this machine, you are under arrest for DWI. In fact, the very first sentence of the rights form he read to you begins "You are under arrest by a law enforcement officer who has reasonable grounds to believe........" Therefore the machine cannot be legally used merely to confirm a suspicion or hunch that the officer may have about the driver's condition.

This is the only breath-alcohol test machine approved for use and accepted by the courts in Louisiana. This, and other chemical tests, are the only tests for which there are penalties imposed for either refusing to take them or submitting to them and exceeding the limits proscribed by law.


A.  Alcohol Testing and Blood-Alcohol Limits:

The only approved methods for measuring alcohol in the body is through breath and blood testing. Breath-alcohol testing is performed by a police officer certified by the Department of Public Safety and Corrections to operate the Intoxilyzer 5000 machine. The results via the use of breath testing are immediately available. Blood testing is accomplished through the use of an approved blood analysis kit. The blood test may only be performed by a physician, registered nurse, chemist, or qualified technician. The results via the use of blood testing are not immediately available as the sample drawn must be analyzed, usually by the Louisiana State Police Crime Laboratory.


1.  If you are under 21 years of age:

-And your blood-alcohol reading is .02g% BAC or higher, you will face a license suspension of 180 days. Additionally, the crime for which you will likely be charged is Underage Driving Under the Influence, so long as your BAC is less than .08g%. That particular crime carries penalties that are not as severe as the crime of DWI.


2.  If you are over 21 years of age:

-And your blood-alcohol reading is .08g% BAC or higher, you will face a ninety (90) day license suspension, or a one year suspension should this be your second or subsequent submission within a five (5) year period.

-And your blood-alcohol reading is .15g% BAC or higher, there are mandatory minimum jail sentences that cannot be suspended by the judge. This penalty also applies regardless of the offender's age.

-And your blood-alcohol reading is .20g% BAC or higher, there are mandatory minimum monetary fines as well as lengthy license suspension periods (two year suspension for first offense, four year suspension for a second offense). This penalty also applies regardless of the offender's age.


B.  Refusing the Chemical Test:

1.  In most arrest scenarios, you have, and you should be told that you have, the right to refuse the chemical test. However, your refusal does come with consequences. By refusing the chemical test you will face a suspension period of one hundred eighty(180) days on a first refusal, or five hundred forty-five(545) days on a second or subsequent refusal within a five year period. Also, your refusal of the test can be introduced as evidence against you at your trial. Furthermore, Louisiana recently passed a law making it a criminal offense, separate and apart from DWI, for a person to refuse to submit to a chemical test when he has refused to submit to a chemical test on two prior and separate occasions.


2.  When you may not refuse the chemical test: When a police officer has probable cause to believe that the driver has violated any law prohibiting the operation of a motor vehicle while intoxicated and

-The suspect has refused to submit to a chemical test on at least two previous and separate occasions; or

-Someone has been killed or sustained a serious bodily injury as a result of a traffic crash.


C.  Chemical Testing for Drugs and Narcotics

The law does require a driver under arrest for DWI to submit to an analysis for narcotics consumption, typically done through blood or urine testing. There is no license suspension penalty for submitting to this test, as the law does not define numerical limits for the amount of narcotics a person can have in his body, as it does in the case of alcohol(for example .08g%BAC).


The law does impose penalties similar to the ones for alcohol testing should the driver elect to refuse the chemical test for narcotics. The suspected drunk driver loses his right to refuse the test under the same circumstances as in a test for alcohol consumption (traffic accident wherein a fatality or serious bodily injury occurs; two prior refusals).


D.  My Advice

Were I ever in a situation where I was faced with the choice of submitting or refusing the breath-alcohol test, I would keep the following in mind. First, I am male and that matters. If a man and woman of equal weight were to consume exactly the same proof and quantity of alcohol, the female would have a higher blood alcohol concentration. This is because women have more water in their bodies than men. Second, I weigh roughly two hundred (200) pounds, and that matters also. Here's why: Suppose two people, A & B, each drink a six-pack of beer. However, suppose A weighs twice as much as B. Obviously, A will have a lower blood alcohol than B simply because there is more of A relative to the alcohol consumed than there is B. In other words, weight matters.


Back to the original question: Would I take the breath test? Had I consumed no more than two (2) twelve (12) ounce beers or two (2) four (4) ounce glasses of wine in the hour before the test, I would submit to the breath-alcohol test. Had I consumed more than that amount, or any amount of mixed drinks, or if I could not remember how much I had consumed, I would politely refuse the test without offering reasons for my refusal. When running a breath-alcohol test as a police officer where a video camera was recording the arrest, I would always ask a driver who chose to refuse why he would not submit to the test. Nearly every suspect's response was "I know I will fail." If you choose to refuse the test, KEEP YOUR MOUTH SHUT!


V. Final Thoughts and How to Deal with the Police Officer Who Just Pulled Your Vehicle Over

When stopped by the police, always be polite, but keep in mind that the only things that you are required to do are:


1.  Provide the officer with your driver's license, insurance information, and vehicle registration.

2.  Provide the officer with information necessary to identify you. (The question "How many beers have you had tonight" does not identify you!)

3.  Exit the vehicle if asked to do so by the officer.

4.  Submit peacefully to an arrest.


No driver that I ever pulled over who chose to argue with me won their case on the side of the road. Arguing with the officer about the color of the traffic signal you just went through or the accuracy of his radar gun is not going to change his mind about writing you a traffic ticket or booking you into jail. You are entitled to your proverbial "day in court." Argue your side there.

6Many people do not realize the things that they are not required to do when stopped by the police, such as:


1.  Consent to a search of your vehicle. The overwhelming majority of people whom I have asked to search their car said yes, even though many of those same people had illegal items, usually narcotics or an open container of alcohol, in their vehicle. Although the officer is not legally required to tell you that you can deny him your consent, you DO NOT HAVE TO GIVE THE POLICE CONSENT TO SEARCH YOUR VEHICLE.


2.  Answer questions regarding your commission or participation in any crime, or offer evidence against yourself. For instance, when asked to participate in a field sobriety test, you can refuse, and should do so if you have consumed alcoholic beverages or narcotics. If the officer has asked you to perform a field sobriety test, chances are the officer is not merely looking to write you traffic ticket and let you go merrily on your way.


VI. The Day After Your DWI Arrest

While it is best to seek the advice of an attorney, or employ his services promptly after an arrest, in a DWI situation it is even more imperative to do so. That is due to the civil consequences of the what is commonly referred to as the "Implied Consent Law." This law says that by merely operating a motor vehicle upon the public roads of this state, a driver is deemed to have given his consent to submit to a chemical test for intoxication. This is also the law that sets the blood-alcohol limits and provides for driver's license suspensions for both refusing the chemical test or exceeding your blood-alcohol limit.

If you exceed your blood-alcohol limits, or refuse the chemical test, you expose yourself to the suspension periods mentioned above, depending upon your individual situation. At the time of your arrest, the officer will issue you some very important paperwork. One paper has a red stripe running across its bottom. That is your temporary driver's license which is valid for only thirty (30) days from the date of your arrest. The other paper is very similar, but has a blue stripe running across its bottom. That sheet explains your rights to appeal the suspension of your driver's license. As it explains, YOU ONLY HAVE FIFTEEN (15) CALENDAR DAYS FROM THE DATE OF ARREST TO HAVE THAT FORM IN THE MAIL TO THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY IN ORDER TO EXERCISE YOUR RIGHT TO APPEAL This is why I encourage you to seek out the advice of an attorney, preferably one with DWI defense experience and training, to assist you.


Once you have applied to the Department in order to appeal the suspension, the state has ninety (90) days to hold your hearing. That hearing will take place in front of a state administrative law judge, separate and apart from the criminal aspect of the DWI charge. In the interim, the Department will mail you and your attorney an extended temporary driving permit which will enable you to drive pending the administrative law judge's decision.


The other aspect of DWI is the criminal offense itself. That aspect will be heard in a state district, parish, or municipal court. In Louisiana, the crimes of first and second offense DWI are considered "petty" crimes. The punishment can be no more than one thousand dollars in monetary fines and no more than six months in jail. Should a defendant elect to go to trial, only a judge will determine guilt or innocence. Third offense grade DWI in Louisiana is a felony, in that the offender is exposed to imprisonment at hard labor for up to five years, and a fine of two thousand dollars. Fourth and subsequent offense grade DWI is also a felony, with a hard labor imprisonment exposure of up to thirty (30) years and a fine of five thousand dollars. Both felony grade DWI offenses in Louisiana also carry vehicle forfeiture provisions.