There are a variety of ways to detect intoxicated drivers

The last couple of weeks I’ve been getting a lot of questions about driving under the influence, which I tend to believe are spurred from the recent contact by Denver law enforcement with Western Slope representative Laura Bradford. It is unquestionably a confusing story, which means folks sometimes take things away from the incident that may not be totally correct.

For instance, it is not illegal to drink an alcoholic beverage and operate a motor vehicle, which is something criminal defense attorneys are quick to point out. What is illegal is to operate a motor vehicle (which has a fairly broad definition by the way) when your ability to operate the vehicle has been impaired to a degree such that you are no longer able to operate it in a safe manner.

Moreover, the blood-alcohol levels that are listed in the statutes are simply presumptions of intoxication and can be rebutted by evidence that an individual wasn’t impaired at that level or conversely, that even though there may not be any test of the alcohol in an individual’s blood or that level is lower than the presumptions, they may be intoxicated.

Other things can influence a person’s sobriety in conjunction with alcohol, such as prescription and nonprescription drugs or illegal ones that can have a synergistic effect; where each substance intensifies the effect of the other. This can include such mundane things as antihistamines or more exotic ones like prescription painkillers. Certain medical conditions can also render a person more susceptible to the effects of alcohol, even at lower blood-alcohol contents.

So this brings us to the obvious question of how do you know when a person is intoxicated? Well, usually the average person can tell, because they’ve seen enough intoxicated persons in their life to be able to render judgment.

Law enforcement officers receive special training in how to detect such things, but they are mostly building off the common-sense observations of any individual with much experience around alcohol.  The roadside sobriety maneuvers are generally just more advanced tests of a person’s balance and ability to follow instructions. It’s often not so much the sophistication of the test but the degree of concentration and observation by the officer that makes the case compelling for a jury.

Early in my career, I knew some officers were still running very old-fashioned tests of suspected drunk drivers by having them do things like try and pick something up off the ground. Jurors could understand this pretty easily, having either been intoxicated themselves or been around enough intoxicated folks to know that standing with your head upside down trying to pick a dime up off the sidewalk was pretty tough if you had too much to drink.

These kinds of tests have gone by the wayside as police agencies are skittish about drunks falling face forward to the sidewalk.

How much people say they’ve had to drink can be helpful, but you never really know what it means. In one instance, I remember a driver telling the officer that he had only had two beers. The officer however, was familiar with the bar the defendant had just left and retrieved one of the beer steins from the establishment, which was big enough to drown a dolphin.

This doesn’t mean people are lying when they say they’re not drunk. Lots of clearly intoxicated people tell law enforcement officers they’re not drunk; sometimes they actually believe it. Police reports are replete with individuals who loudly announce they are not intoxicated as they fall backward into their car or (I’ve seen this) pitch forward out of their chair into the intoxilyzer room wall. Alcohol’s heck on judgment — especially about yourself.

The short story is you don’t need a blood or breath test to charge an alcohol-driving offense. Plenty of people have been convicted in that circumstance. I’ve done it and most prosecutors have, as well.

Even though the officer didn’t take Rep. Bradford into custody at the scene for a test, she could still have been charged. If the district attorney felt his office could not prove it, most likely it was not just because there was no test.

Rick Wagner offers more thoughts on politics at his blog, The War on Wrong.


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