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  • David A. Cmelik Law PLC

DUI Trainers: cite legal conduct to justify OWI stop


Officers need at least reasonable and articulable suspicion to believe a crime is occurring or contraband is present in order to conduct a traffic stop. Remember that the only reason an officer truly wishes to make a traffic stop is to come into close personal contact with a motorist to determine if they can continue an Operating While Intoxicated, or, OWI, investigation-- smell their breath, hear their speech, see their eyes.

The standard cliché officers cite in their affidavits for arrest is "bloodshot watery eyes, odor of a consumed alcoholic beverage emanating from the driver's breath/person, and slurred or thick tongued speech." This allows the officer to bootstrap a traffic stop into an OWI arrest, usually with the compliance of the motorist, who performs standardized field sobriety tests, or, SFSTs, upon request.

From the NHTSA DWI Instructor Refresher Manual, p. 19.

An OWI defendant should know that the police officer's OWI/DUI investigation began long before they were stopped by the officer using emergency top lights and siren. Law enforcement officers call the first “phase” of OWI investigation “vehicle in motion.” Only after this stop can they continue personal interaction and prearrest screening.

The National Highway Traffic Safety Administration, or, NHTSA, provides teaching materials to law enforcement academies, law enforcement agencies, law enforcement trainers, and prosecutors to arrest, prosecute, and win more drunk driving convictions. These materials include ways to establish the grounds to make the traffic stop.

NHTSA, the Iowa Law Enforcement Academy, and the Iowa Department of Public Safety teach officers that:

Problems maintaining proper lane position

Speed and braking problems

“Vigilance” problems; and

“Judgment” problems

are the most common and “reliable” indicators of impaired driving, otherwise known as OWI or DUI.

NHTSA Instructor Refresher Manual, p. 8.

Some of those teaching materials encourage recruits and trained police officers to build a case for the initial traffic stop by establishing so-called “vigilance” and speed and braking problems by citing to perfectly legal activity.

They teach that “slow response to traffic signals," “varying speed” and “10 mph or more under the speed limit” are among these so-called "indicators." None of these are illegal. However, remember that the officer intends to accumulate reasons for the stop to convince a prosecutor, judge, and possibly a jury later. Phase one of any OWI investigation is "vehicle in motion."

The NHTSA DUI refresher training manual urges officers to watch for so-called judgment problems” like stopping “inappropriately” in response to an officer or “appearing to be impaired”—the latter merely conclusory if the officer is seeking evidence of impairment.

While this conduct is ostensibly legal, cumulatively, the officer hopes their observations—as well as their official sounding jargon and their experience and citations to “training” like this—will lend credibility to what is essentially a hunch that you were operating under the influence.

If you or a loved one have been arrested for OWI (DUI) in Cedar Rapids, Iowa City, Linn County, Johnson County, or other Iowa county or community, contact David A. Cmelik Law PLC for a free initial consultation. However, remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship

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