DUI Stops and Arrests

Most people know what it feels like to see flashing red-and-blue lights in their rearview mirror. It means the police are pulling you over for what you hope is a routine traffic stop. However, getting stopped on suspicion of DUI/DWI brings a whole new set of complications.

This article explains how most DUI arrests work, including what to expect during the DUI stop. It also discusses both chemical tests and the field sobriety test. You’ll also learn how you can challenge a DUI arrest.

If you’re facing charges for a DUI offense, consult a local DUI defense attorney as soon as possible. They can explain your options according to state law and help protect your rights.

What Constitutes an Arrest?

A DUI case begins when a police officer places the suspect under arrest. An “arrest” occurs when the officer takes a driver into custody, and that person is no longer free to leave or move about.

An arrest does not require the use of physical restraints or handcuffs. It can be completed when a police officer tells a criminal suspect they are “under arrest” and the suspect submits without the officer’s use of physical force.

If you believe a traffic stop or DUI arrest was improper, consult with a local DUI defense lawyer. They can explain your rights and evaluate what happened between you and law enforcement. They can also help you navigate DUI charges.

Detaining a Driver With Reasonable Suspicion

Arresting someone is different from detaining them. A detention is often brief and much shorter than an arrest. To arrest someone, the police must have probable cause to believe they’ve committed a crime. Law enforcement only needs reasonable suspicion to detain someone.

This is why the police can stop someone if they have a reasonable suspicion that the motorist is under the influence of drugs or alcohol. An example of reasonable suspicion could be seeing the driver weaving between lanes. To make an arrest, they must have additional evidence that establishes probable cause, such as a roadside breath test showing a blood alcohol level (BAC) of at least 0.09%.

Arresting a Driver With Probable Cause

Probable cause for “drugged driving” is rapidly evolving due to increased cannabis legalization and new drug-impaired driving statutes. Officers are now trained to observe signs specifically associated with drug use, such as dilated pupils, rapid heart rate, sluggishness, odor of marijuana, open cannabis packaging, or the presence of drug paraphernalia.

For example, under Illinois law, it is illegal to operate a vehicle while under the influence of any other drug or combination of drugs to a degree that renders the person incapable of driving safely. In both Colorado and California, there are analogous laws addressing driving under the influence of drugs, including marijuana. Signs of impairment may provide probable cause to request a drug test or pursuit of a drug-DUI charge, especially in states with legal recreational cannabis.

Drug evaluation and classification (DEC) programs are now broadly used. This is where an officer certified as a Drug Recognition Expert (DRE) conducts a standardized 12-step process to establish probable cause for suspected drug-impaired driving, supplementing physical signs observed during traffic stops.

Your Rights During DUI Stops

The first step in a DUI arrest is a traffic stop. This can occur at a standard DUI checkpoint, when the police officer initiates a traffic stop after noting a driver’s impaired driving, or after an accident. They can also initiate a traffic stop for something routine, like a missing taillight on your motor vehicle.

While not every state allows law enforcement officers to use DUI checkpoints, the U.S. Supreme Court has ruled they are legal. According to the Court, a state’s interest in eliminating drunk driving outweighs a driver’s privacy interest.

If the police stop you for suspicion of drunk driving, they’re still bound by your constitutional rights. They must honor your Fourth Amendment rights against unreasonable searches and seizures.

Two Types of DUI Arrests

When the police pull you over, they will ask you to take a breathalyzer test and, likely, a field sobriety test. The breathalyzer test measures your blood alcohol content, while the field sobriety test allows the police to gauge whether you are impaired.

If your breath test results are 0.08% BAC or higher, the police have probable cause to arrest you for DUI. The legal limit in almost every state is 0.08% for personal drivers and 0.04% for commercial drivers. If a professional driver is found guilty of DUI, they face a suspension or revocation of their commercial driver’s license (CDL).

If the police arrest you based on your having a BAC over the legal limit, it is called a “per se” DUI. A per se DUI is based strictly on the fact that your blood alcohol concentration is above the legal limit.

Even if your blood alcohol level is below 0.08%, the police can still arrest you for drunk driving. Regardless of your breathalyzer test results, the police officer may still ask you to perform a field sobriety test (FST). Depending on the amount of alcohol you drank, you may not perform well on the FST.

If you perform poorly on this test, the officer can arrest you for an impairment-based DUI. In these DUI cases, the police rely on evidence other than a chemical test to determine that you’re impaired.

The penalties for a per se DUI and an impairment-based DUI are the same. The primary difference is that it is harder for the state to prove its case when a defendant’s blood alcohol level is below the legal limit.

Signs of Impaired Driving

As stated above, all the police need to pull you over for a DUI stop is reasonable suspicion that you are driving while under the influence of drugs or alcohol. This is not difficult for them to prove. It can be anything from you swerving in and out of your lane to driving with all the windows down in the middle of winter.

Some of the more common signs law enforcement looks for with impaired driving include:

• Driving in the dark without your lights on
• Swerving in and out of traffic lanes
• Blaring your music at a late hour

Once the police pull you over, they will approach your motor vehicle and look for signs that you are under the influence of alcohol or illegal drugs. Some of the signs of impairment include:

• Bloodshot eyes
• Slurred speech
• Profuse sweating
• Shaking
• Nervous tics
• Not looking the officer in the eye
• Open containers of alcohol in plain view
• The odor of marijuana or alcohol

If the police officer observes any of the above, they’ll proceed with a breath, chemical, or field sobriety test to confirm their suspicions.

Routine Traffic Stops May Lead to a DUI Arrest

In many DUI cases, a traffic stop for a routine driving offense leads to a DUI arrest. For example, the police may pull someone over for an expired inspection sticker or registration. They may claim you ran a red light or were speeding.

Regardless of the reason they initially pull you over, if the police officer suspects you’re drunk driving or drugged driving, they’ll conduct the tests described above and likely arrest you for DWI.

Field Sobriety and Chemical Tests

If the police suspect you’re driving under the influence, they’ll first ask you to submit to a field sobriety test (FST).

This test requires the driver to perform a series of tasks that measure their coordination and levels of impairment. Field sobriety tests can be anything from counting backwards to balance and walking challenges.

A one-leg test is standard. Another part of the field sobriety test is the horizontal gaze nystagmus test. If you perform poorly on the FST, the officer will ask you to take a breathalyzer test. In almost all DUI stops, law enforcement relies on a portable breath test (PBT) to determine if a motorist is above the legal limit.

If you agree to take the PBT, the officer will ask you to breathe into a tube until you hear a beep. Within moments of doing this, the PBT will register your blood alcohol level. If it is 0.08% or higher, the officer can arrest you for per se DUI.

You Can Refuse the Breath Test and Field Sobriety Test

When an individual accepts a driver’s license, they give the state implied consent to perform the above tests. This does not mean you have to submit to the tests. You have a right to refuse the tests, although that won’t get you out of trouble. 

Warrants for DUI Testing

If you refuse the breathalyzer, the officer may request a warrant and have you submit to a blood or urine test at the station. This allows them to determine your blood alcohol content despite your refusal of the breathalyzer.

By the time the law enforcement officer obtains the warrant and takes you to the hospital, your BAC will likely have dropped significantly. This may result in the officer not arresting you. However, the police can use the results of the FST to justify your DUI arrest. Your BAC at the time of the stop can also be determined by comparing your level from the PBT to the level of the blood test, with allowances made for the time passed.

In 2013, the U.S. Supreme Court in Missouri v. McNeely held that the natural dissipation of alcohol in the bloodstream does not always create an exigency that justifies a warrantless blood draw in DUI cases. Instead, police must generally obtain a warrant, unless there are true exigent circumstances (for example, the suspect is unconscious and unable to provide breath or consent, and delay would risk loss of evidence).

In 2019, in Mitchell v. Wisconsin, the Court clarified that where a DUI suspect is unconscious and unable to submit to a breath test, and obtaining a warrant is impractical, a warrantless blood test may be permissible under the “exigent circumstances” exception. However, both cases reinforce that police cannot routinely forgo seeking a warrant for blood tests unless specific time-sensitive circumstances exist.

Breath and blood tests are treated differently under constitutional law. Breath tests are considered less intrusive, and under Birchfield v. North Dakota (2016), police may lawfully require a breath test as a condition of implied consent, and refusals can be criminally penalized. However, blood tests require greater invasiveness and bodily intrusion; therefore, warrantless blood draws, except in rare exigent circumstances recognized in McNeely and Mitchell, normally violate the Fourth Amendment and cannot be compelled under implied consent laws alone.

Penalties for DUI Testing Refusals

While you have the right to decline the breath test, chemical tests, and FST, there are legal consequences for doing so. If you refuse the breathalyzer test, law enforcement will take your driver’s license. The Department of Motor Vehicles (DMV) will automatically suspend your driving privileges.

Your criminal defense attorney can appeal your administrative driver’s license suspension. This can take time, and there is no guarantee the DMV will honor the request. If the state convicts you of DUI/DWI, the judge will almost certainly suspend your driver’s license. The suspension can range from a few months to a year, depending on your state’s laws.

Every jurisdiction has its own DUI/OUI statutes, and the penalties for a DUI conviction vary.

Challenging An Unlawful Arrest

Police officers must respect citizens’ constitutional rights at all stages of the criminal justice process. This includes your right to remain silent and freedom from unreasonable searches and seizures.

If law enforcement violates these rights, a court may deem the arrest unlawful and exclude certain evidence from trial. Your DUI defense attorney can challenge an unlawful arrest at trial.

Have Questions About Your DUI Arrest? Ask a Lawyer

Driving under the influence of alcohol or illegal drugs can get you into serious legal trouble. If you’re facing DUI charges, consult an experienced DUI lawyer in your state. They’ll review your case and work to get you an acquittal or a favorable plea bargain.

Retaining a criminal defense attorney is especially important if you are a repeat offender. The penalties for first-time DUI and subsequent offenses are severe, including jail time, fines, and community service. The judge may also order you to install an ignition interlock device on your vehicle.