DUI Defense

While this first phase is often about an officer's observation of driving patterns, it is ultimately the phase in which an officer makes observations that give him or her a reason to make contact with a driver (or alleged driver). This is known as particularized suspicion or reasonable suspicion. In Montana, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Mont. Code Ann. § 46-5-401. 

Examples of driving patterns that might give an officer particularized suspicion to pull you over would be weaving out of your lane of travel, failing to come to a complete stop at a stop sign, or making an illegal turn. Yet, all too often, this phase is initiated by law enforcement for something as simple as a license plate light that is not properly lit. An experienced DUI defense attorney may be able to challenge such a stop as entirely pretextual or false. If such a challenge is successful, all of the evidence obtained after the stop may be thrown out by the judge. 

Phase two of a DUI investigation occurs when a law enforcement officer makes contact. Here, they are once again looking for particularized suspicion, but this time they must have particularized suspicion that the driver is under the influence of drugs or alcohol such that their ability to safely operate the vehicle is impaired.

During this phase of the investigation, the officer is looking for specific indicators of impairment and consumption of alcohol or drugs. They may note watery, bloodshot eyes; the odor of metabolized alcohol; lack of fine motor skills; or slurred speech. Just a single indicator is likely not enough, though. For example, it is not illegal to have a drink and then drive, so long as one is not impaired or over the legal limit. Therefore, the smell of metabolized alcohol alone may not be enough to establish particularized suspicion.

An experienced Montana DUI defense attorney can review the evidence to see if  law enforcement actually had enough particularized suspicion to move on to Phase three, the Standardized Field Sobriety Tests (SFSTs). 

Phase three is where a law enforcement officer now has enough particularized suspicion to ask you to step out of your vehicle and perform Standardized Field Sobriety Tests. In general, there are three SFSTs that are routinely administered: The Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the One Leg Stand.

The HGN test is designed as an indicator of alcohol consumption to an impairing degree This test is problematic because the officer is required wave an object in front of your eyes at a specific height and distance, which is a very inexact science. If the HGN is permitted as evidence in court, the State is required to bring an expert to testify as to its reliability. Additionally, police body cam and dash camera footage doesn't capture the movements of the eyes, so we're left to take the officer's word for what he saw.

Both the Walk and Turn and the One Leg Stand require you to follow multiple instructions and to have the physical agility to perform the tests. Here, a DUI attorney trained in the administration of the tests can explain to a judge or a jury why they're an inaccurate indicator of impairment.