After testifying to the defendant's erratic driving in a DUI case, the officer will next point to his clumsy and uncoordinated behavior during the initial stages of the DUI investigation. Typically, the officer will recall that the defendant fumbled through his wallet after being asked to produce his driver's license and had considerable difficulty in finding it. Then, after being asked to step out of the vehicle, the defendant stumbled and almost fell down; it was repeatedly necessary, he may continue, for the defendant to brace himself by placing an arm against the car.
Once again, an Orange County DUI lawyer defending the DUI client will be faced with damning testimony. Yet once again there are avenues available for productive cross-examination. The course of questioning relative to the fumbling extraction of the driver's license should be apparent. The vast majority of citizens who have been singled out from the flow of traffic by flashing red lights and sirens, pulled over by a marked police vehicle, and approached by a uniformed officer wearing a gun are going to be at least very nervous and probably emotionally upset. About the only types of individuals who will not react to a DUI investigation with a quickened pulse and a higher blood pressure are hardened criminals. It should be understandable, then, when the citizen nervously fumbles in trying to locate and extract his license from his wallet. Rather then being indicative of intoxication, such fumbling should be pointed out to the jury as being a perfectly normal reaction to a high-stress situation. It is the truly intoxicated individual who may feel a false calm, an alcohol-induced sense of ease.
There is, as is often the case in DUI situations, the other side of the coin: If no mention is made in the report or in testimony of fumbling for the license, counsel may wish to establish with careful questioning that his client had no trouble locating and removing the license when requested to do so, and then force the officer to admit that fumbling is a commonly observed phenomenon among drunk drivers.
Stumbling when alighting from the vehicle is another indication of intoxication widely observed by officers in DUI investigations, often followed by apparent necessity for the defendant to brace himself against the car with an arm or by leaning. Defense counsel first should compare the severity of this conduct with the client's performance on the field sobriety tests. Although, in the officer's opinion, he will undoubtedly have flunked the tests, there will probably be little mention of stumbling or the need for lateral support from the car. The defendant may, for example, have touched his finger to his lip rather than to his nose in the finger-to-nose test, but he was apparently standing in an erect and unsupported position for an extended period of time when he performed the test. The apparent discrepancy should be brought out.
The distinct possibility of innocent explanations for the stumbling and need for support should be investigated with the client prior to cross-examination of the officer, and counsel should visit the scene of the DUI arrest. Usually, the defendant's vehicle will be pulled over to the shoulder of the road or highway. As he steps out of his car, then, he may be stepping onto a soft or gravel surface, and one that may be at an angle or slope to the level road. This unexpected quality and angle of the surface could cause anyone to stumble initially; that the defendant did not continue to stumble is indicative of sobriety.
Another factor often present in DUI situations is that the defendant has been sitting behind the steering wheel for a half hour or more. Again, it is a common phenomenon, and one the jury can recognize, for an individual to stumble in his first steps after having been in a sitting position for an extended period of time and to be unsteady for a few moments thereafter (the first few moments after sitting through a motion picture can be used as an example). Counsel may even wish to point to the stiffness of witnesses after stepping down from testifying in the witness chair for an hour or more. This is true particularly of older persons, whose blood circulation, joint problems, and muscle tone may add to the problem.
There are many other considerations that may contribute to unsteadiness on the feet after a DUI stop. Being nervous and/or emotionally upset can certainly be a factor. If enough adrenalin is pumping in the normal person's body, his muscles will actually begin to quiver and then even shake uncontrollably. If the defendant is wearing high heels like those found on a woman's dress shoes or on a man's western boots, it will be all the more difficult to maintain balance initially, particularly on an uneven road surface. If the stop is made at night, the darkness can make initial footing difficult, and this is complicated by the sounds, headlights, and air waves of passing cars.
If the officer's DUI report indicates that the defendant was "cooperative" in his attitude, counsel should ask him what a person's attitude has to do with whether or not they are under the influence of alcohol. The officer will usually testify that intoxicated persons commonly become uncooperative and even aggressive. The obvious should then be spelled out - that is, ask the officer how he would describe the defendant's attitude. If cooperative, isn't this the opposite of the description of a person under the influence? If the defendant was uncooperative, on the other hand, the officer should be questioned concerning the existence of that "symptom" in arrests unrelated to intoxication and its nonexistence in many DUI arrests.
Orange County DUI is a reference source to assist citizens charged with drunk driving, and is intended to counter the activities of organizations and individuals advocating unfair laws and procedures, unduly harsh penalties, Constitutional violations, and the eventual return of Prohibition. Further information on DUI issues such as unconstitutional roadblocks, inappropriate criminal penalties, and "automatic" license suspensions and revocations can be found on the website of the National Motorists Association.