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For the prosecution to successfully try a driver for DUI, law enforcement must establish guilt beyond a reasonable doubt. A successful DUI defense does not carry the burden of proof, but it must introduce into the mind of the jury questions about the arresting officer's memory, training, experience, perceptions, and conduct so as to raise reasonable concerns about whether his or her testimony can be relied upon.

The extensive layers of detail that officers must observe in the three phases DUI detection and field sobriety testing can prove to be an ally of the defense as well as the prosecution in this regard.

In previous posts we have covered the three distinct phases by which police officers are trained to identify and arrest drivers they suspect of being under the influence of alcohol. To recapitulate, these phases are:

  1. Vehicle in motion, in which the officer decides whether to make a traffic stop;
  2. Personal contact, when the officer interacts with the vehicle driver while the driver is still in the car; and
  3. Pre-arrest screening, when the officer will have the driver exit the car to undergo field sobriety tests and possibly a preliminary breath test to measure blood alcohol content.

Each of these phases, which are laid out in NHTSA guidelines, are detail-intensive and require police officers to be meticulous in the performance of the various sub-tasks, and in evidencing observations of the driver's behaviors and responses. It is this necessity for diligence that may offer a driver accused of drunk driving opportunities to challenge the officer's conduct, or the officer's potential lack of memory, as a defense.

It is one thing for the police officer to become suspicious based on observations of a driver's behavior; it is something else for the prosecution to translate those suspicions into compelling testimony. An officer who is inexperienced, insufficiently trained, or who neglects to take notes or otherwise record key details may have trouble in court recalling exactly what he or she saw.

It is not only the officer's ability to know what to look for and how to recount it which may be done improperly. The administration of field sobriety tests, such as the horizontal gaze nystagmus test, is also something that must be done with precision. Hurrying through a test, or not giving an instruction properly, can call the test itself into question.

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