When it comes to the line of questioning about the bumbling act of taking out the defendant’s driver’s license, there is a clear counter. The great majority of citizens who have been pulled over from the flow of traffic with flashing lights and sirens by a marked police car, approached by an officer in uniform with a gun in their belt, are going to be at the very least, nervous, and likely, emotionally distraught. Hardened criminals are the only type of individuals who are likely not to react to a DUI investigation with a fast pulse and high blood pressure. It should then be comprehensible when a citizen nervously bumbles when trying to remove their license from their wallet. This kind of behavior is not indicative of intoxication, but rather, a perfectly normal reaction to stressful circumstances. In fact, a truly intoxicated individual would likely feel a false sense of security and calm induced by alcohol.
As in many DUI situations, there is the other side of the coin: If there is no discussion in the report or testimony about the defendant fumbling for their license, counsel may want to establish with meticulous questioning that their client did not have any issues producing their license when requested, and then force the officer to concede that fumbling is a phenomenon commonly observed among drunk drivers.
Staggering and stumbling when exiting the vehicle is another indication of drunkenness observed often by officers conducting DUI investigations, typically followed by the defendant bracing their arm against the car to stand. First, defense counsel should compare the severity of this behavior with the client’s results on the field sobriety tests. Even though it is likely that the officer’s opinion is that the defendant failed the tests, there probably won’t be much mention of the stumbling or bracing against the car.
For example, the defendant may have touched their finger to their lip instead of their nose during the finger-to-nose test, but they were observed standing up straight and in a non-bracing position during an extended period of time while performing the test. This is a discrepancy that counsel should bring to light.
The possibility of blameless explanations for the staggering and need for support should be examined with the client before cross-examination of the officer. The counsel is advised to visit the scene of the DUI arrest. It is typical for the defendant’s vehicle to be pulled over onto the shoulder of the street or freeway. As the defendant exits their car, then, the defendant could be stepping onto a soft or gravel surface, potentially at an angle or slope to the even road. This unexpected angle of the surface could cause any person to initially stumble; the fact that the defendant did not continually stumble is a testament to their sobriety.
Another common factor in DUI investigations is that the defendant has probably been sitting in their car for half an hour or longer. The jury can probably recognize that it is common for anyone to stumble in their first few steps after sitting for an extended length of time, and to be unsteady for a short period after. For example, consider the first few minutes after sitting through a movie when finally standing up. Counsel could also emphasize the witnesses’ stiffness when stepping down from the witness chair after more than an hour of testifying. This phenomenon applies even more so for seniors, whose joint problems, blood circulation, and aching muscles can exacerbate the problem.
There are additional considerations that can also influence the unsteadiness after exiting the vehicle during a DUI stop. Feeling nervous and emotionally distraught can absolutely be a factor. With enough adrenalin in a typical person’s body, their muscles will start to quiver and shake uncontrollably.
If the defendant is wearing shoes with heels, such as men’s western boots or woman’s high heels, it will make it even more challenging to keep their balance, especially on uneven road surfaces. If a DUI stop occurs at night, the darkness can make footing challenging, and the sounds, air waves, and headlights of passing cars make stumbling even more likely.
If the officer’s report shows that the defendant had a “cooperative” attitude, a good DUI lawyer should inquire how a person’s attitude is relevant to a person’s intoxication or lack thereof. It is probable that the officer will claim that a drunk person typically is belligerent and even aggressive. The counsel should then spell it out by asking the officer how they would describe the defendant’s attitude. If considered “cooperative,” is this not the opposite of the description of an intoxicated person? If the defendant was not cooperative, however, the officer should be asked about the “symptom’s” role in arrests that have no relevance to intoxication and its absence in many DUI arrests.
